Upper Valley Aviation, Inc. v. Fryer, 12

• Decision Date: 29 June 1965
• Docket Number: No. 12,12
• Citation: 392 S.W.2d 737
• Parties: UPPER VALLEY AVIATION, INC., Appellant, v. Ward FRYER, Appellee.
• Court: Texas Court of Appeals

Page 737

392 S.W.2d 737

UPPER VALLEY AVIATION, INC., Appellant, v. Ward FRYER, Appellee.

No. 12.

Court of Civil Appeals of Texas, Corpus Christi.

June 29, 1965.

Rehearing Denied July 29, 1965.

Cox & Wilson, by Bascom Cox, Brownsville, Rankin, Kern, Martinez & de la Garza, by H. H. Rankin, Jr., McAllen, for appellant.

Kelley, Looney, McLean & Littleton, by Ralph Alexander, Edinburg, for appellee.

NYE, Justice.

This is a suit for damages brought by the owner of an airplane, Upper Valley Aviation, Inc., against Ward Fryer, the pilot. Ward Fryer, hereinafter called appellee, rented a small single-engine private plane from the appellant Upper Valley Aviation, Inc., in McAllen, Texas, for the purpose of flying to Washington, D. C. It was stipulated that the relationship between the parties to this suit was that of bailor and bailee. On the return trip from Washington, the appellee crash-landed in Alabama. The case was tried before a jury. In response to special issues submitted and answered, the jury exonerated the appellee from negligence and found that the appellant was contributorily negligent. From a judgment entered that appellant take nothing, its appeal to this Court has been perfected.

In January of 1961, appellee and his wife decided to attend the inauguration of President Kennedy in Washington, D. C. He rented the airplane, a Piper Comanche 250, from appellant. The appellee flew to Washington in gradual stages, stopping in Austin, Texas, Memphis, Tennessee, Cincinnati, Ohio, and Baltimore, Maryland. They did not experience any difficulty on their trip back East. The airplane was a low wing single-engine aircraft, equipped with two wing type tanks holding thirty gallons of gasoline each. Immediately after he landed at Friendship Airport near Washington, the appellee ordered the gasoline tanks filled, and observed the attendant placing the gasoline in the tanks.

After the inauguration ceremonies, appellee and his wife started their return trip to MeAllen, Texas. Prior to take-off, appellee made a routine check of his plane, including checking the landing gear, the oil, draining the gasoline sump and checking the gasoline gauges to determine the amount of fuel on board. Because of crowded conditions at the airport, appellee had some difficulty in getting full weather information on winds aloft before departure, but was able to get sufficient information to know that flying to his destination was safe. He did, however, get complete weather data by radio after he was airborne and away from the Washington area. Appellee filed his flight plan while in flight, stating that he had six hours of fuel on board and that his estimated time en route was five hours. Although he had planned to stop overninght at New Orleans, he knew that he would probably have to stop en route to gas the plane. He had not determined the exact stopping place en route, however, he intended to go as far as he could safely, with the fuel supply that he had on board. As is customary for pilots flying this type of aircraft, the appellee switched from one tank to the other while flying, to keep the aircraft trimmed properly. Otherwise one wing would be heavier than the other because of more fuel in one tank than in the other. When approximately one hundried and twenty miles from Montgomery, Albama, appellee decided that he would fly on to Montgomery and land there for refueling. He checked his gas gauges and noticed that the left tank had about three gallons of gasoline left, and the right tank indicated half full. He used the remaining gas in the left tank and then switched over to the right tank. Shortly thereafter, the engine quit and the aircraft crashed about forty-three miles from Montgomery, Alabama. The plane was virtually demolished, although the appellee and his wife escaped serious injury. At the time the airplane crashed, the right hand gas gauge indicated that the right tank was almost half full of gasoline. Later it was determined that the aircraft was completely out of gas.

Appellant's first and second points complain that the trial court erred in overruling their motion for instructed verdict and their motion for judgment non obstante veredicto. Appellant's points three through thirteen complain that the trial court erred in submitting to the jury over appellant's objection Special Issues 9, 10, 11, 12, 13, 14, 15, and 16, because there was no evidence and/or no evidence upon which the minds of reasonable men could differ to sustain the submission of such special issues.

The jury was asked the general issue (Special Issue No. 1) as to whether or not the crash in question was caused by the appellee's negligence. The jury answered 'No'. Special Issue No. 3 inquired whether or not on the occasion in question appellee failed to visually determine by inspection of the gas tanks the adequacy of the supply of fuel of said plane for his proposed return flight from Friendship Airport en route toward New Orleans, Louisiana. The jury answered 'No' in response to this issue. Issue No. 6 requested by appellant was whether or not appellee flew the plane with an insufficient supply of gasoline for his return trip from Friendship Airport en route toward New Orleans. The jury answered 'No'. In other issues the jury convicted the appellant of contributory negligence. They found that the plane in question was not in good condition when delivered to appellee (Special Issue No. 9); that appellant furnished appellee with a plane with a defective gas gauge (Special Issue No. 10); which was negligence (Special Issue No. 11); and a proximate cause of the crash (Special Issue No. 12). Further, the jury found that the appellant knew, or should have known, of the defective gas gauge ( Special Issue No. 13); that appellant failed to warn appellee of such defective gas gauge (Special Issue No. 14); that such failure was negligence (Special Issue No. 18); and that such negligence was the proximate cause of the crash in question (Special Issue No. 16).

Appellant contends that there was no evidence of any probative value offered by the appellee to show that the crash could have been caused by other than his fault. Appellant argues that where the airplane was delivered to the appellee as bailee in good condition and returned in a damaged state, the law presumes the bailee's negligence or other fault to be the cause. This presumption, referred to and discussed in Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157, which cites with approval the opinion of Judge Leonard Hand in Alpine Forwarding Co. v. Pennsylvania R. Co., Cir.Ct. of App., 2nd Cir., 60 F.2d 734, casts on the bailee the duty of at least producing some evidence showing how the property was injured or that however that was, it was not due to his neglect in order to vitiate the presumed negligence. This presumption, on which the bailor may rely, is a mere rule for the conduct of the trial. It puts upon the bailee the risk of a directed verdict if he does not meet it, but it does no more. Once he has introduced some evidence, the presumption disappears from the case and the evidence must be regarded by the jury as in an ordinary case to determine whether on the preponderance of the evidence the bailee was negligent. Falls Church Airpark Co., Inc. v. Mooney Aircraft, Inc., 254 F.2d 920, 5th Cir., 1958; Mustang Aviation, Inc. v. Ridgway, Tex.Civ.App., 231 S.W.2d 677 (1950); Callihan v. Montrief, Tex.Civ.App., 71 S.W.2d 564, err. ref.; Beck v. Lasater, Tex.Civ.App., 286 S.W.2d 957, ref. n. r. e., 8 Tex.Jur.2d, § 26, p. 102, Aviation; 8 Tex.Jur.2d § 50, p. 264, Bailment. The record clearly shows that evidence was introduced to explain the damage to the aircraft and that the appellee was not negligent or at fault in connection therewith. The record indicates that the appellant chose at the outset of the trial, as the first witness, to call the appellee under the adverse party rule and to interrogate him extensively as to how the accident occurred. It was the testimony of the appellee and later in the trial, his wife, that the gas gauge indicated that the plane still had approximately one fourth of its total fuel supply available at the time of the crash. There was no evidence that appellee was responsible for causing the defective condition of the gas gauge.

Appellant's points of no evidence require the reviewing court to look at the evidence favorable to the verdict. The rule of whether reasonable minds could differ applies, and applies only, to the question of whether the evidence as a mater of law requires a conclusion contrary to the vedict. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The record of this case shows that the trial lasted more than two weeks. The statement of facts was therefore rather voluminous. The evidence discloses that the defective gas gauge was reported to the appellant several months prior to the use of the plane by the appellee. A certain pilot, Sherman Ihde, flew the same airplane on a long distance flight and observed that one of the gas gauges was defective in that when the recording needle dropped to an indication of approximately half full, it stopped recording at that point and did not register the correct amount of fuel. His recollection was that it was the right hand wing tank gas gauge. The witness Ihde reported it to the Chief Pilot of the appellant company, who did not signify that anything was going to be done to correct the defect. Appellant's manager and vice president stated that to their knowledge nothing was done to check such defective gauge nor was any repair made to it. There was evidence that this type of defect...