Weadock v. Eagle Indem. Co.

• Decision Date: 28 June 1943
• Docket Number: 6560.
• Citation: 15 So.2d 132
• Court: Court of Appeal of Louisiana — District of US
• Parties: WEADOCK et al. v. EAGLE INDEMNITY CO. et al.

15 So.2d 132

WEADOCK et al. v. EAGLE INDEMNITY CO. et al.

No. 6560.

Court of Appeals of Louisiana, Second Circuit

June 28, 1943

Rehearing Denied Oct. 4, 1943. [Copyrighted Material Omitted]

E.W & P.N. Browne, of Shreveport, for appellants.

Booth & Lockard and Sidney G. Myers, all of Shreveport, for appellee.

TALIAFERRO Judge.

This is a tort action in which Raymond L. Weadock sues to recover damages for physical injuries, etc., sustained by him in and resulting from a mid-air collision over the field of the Shreveport, Louisiana, Municipal Airport, between a Piper Cub plane operated by him, and a Funk 75 plane operated by Walton Greer. Newton B. Badgett, operating as Badgett Flying School, and sixteen different casualty and indemnity insurance companies, who insured him and the Civil Aeronautics Authority of the United States Government (hereinafter referred to as the CAA), against damages imposed by law, arising from the training of student pilots, etc., as hereinafter described, were impleaded as defendants.

When the accident occurred Raymond L. Weadock was a minor. He attained majority prior to date this suit was filed, and, therefore, in so far as concerns his claim for damages, petitioned in his own right. His father, Leo H. Weadock, joins in the suit as plaintiff and sues the same defendants to recover amounts necessarily expended by him during the son's minority to alleviate his pain and suffering and for treatment of physical conditions resulting from the collision.

The pertinent background history and facts preceding the accident are succinctly stated in brief of appellees' counsel, to-wit:

"Sometime prior to November 18, 1940, the CAA inaugurated what is referred to as the 'Civilian Pilots Training Program', the purpose of which is to train civilians--under-graduate collegians--for prospective pilots in the United States Army Air Corps. To effectuate this program, the CAA entered into written contracts with various civil flight contractors throughout the Nation. On October 2, 1940, Newton B. Badgett obtained such a contract, under the terms of which he was to give certain specified courses in ground and flight training to students of Centenary College at the rate of $335.00 per student (Vol. 4, R 770-782).

"On October 3, 1940, petitioner, Raymond L. Weadock, then a Junior Student at Centenary College, enrolled for such training course and pledged himself to join the United States Army Air Corps if accepted and upon the successful completion of the course (Vol. 1, R 21). Young Weadock reported to the defendant's school, operating at the Shreveport Municipal Airport, on October 8th, 1940, and was assigned to Instructor Elmer Lane, Badgett's employee."

The training course for student pilots consists of four grades or stages, A, B, C, and D. Ground instruction is given at Centenary College in the City of Shreveport, whereas actual flying is mainly done and taught at the airport by licensed instructors. Both phases of instruction are given simultaneously.

Young Weadock successfully met all the requirements of grades A and B and from examination was found competent to be, and was being instructed in grade C when injured. To that time he had had fourteen and one-half hours of flying experience of which three hours and thirty minutes or seven flights represented solo flying; that is, flying without being accompanied by an instructor.

At the hour of 2:30 o'clock p.m. November 18, 1940, young Weadock reported at the airport for instruction. He was directed by Mr. Lane, his instructor, to get into the Piper Cub plane and occupy the rear seat thereof preliminary to making a routine solo flight. This being done, Weadock was strapped to the plane as was the custom. At this moment Mr. Lane was called to the Administration Building hard by to answer a telephone call. The plane was taxied northerly about one-third of a mile to or near the north boundary of the field. Lane instructed Weadock, as he had done previously, to carefully survey the air in all directions prior to taking off to ascertain if it were safe to do so; that is, to learn by observation if there were any planes in sight that would jeopardize the safety of the contemplated flight. Prior to beginning the routine flight, he executed a right turn of one hundred eighty degrees which was effected by making a ninety degree turn toward the east and another southerly. This done, the plane faced into an eleven mile per hour wind. Flight was then begun by giving the plane the needed power to ascend. When approximately one hundred fifty feet high and near the center of the field, the accident occurred.

Unknown to Lane or Weadock, Walter Greer, a trainee of the Stovall Training School, competitor of the Badgett School, also using the facilities of the airport, had, at a time prior, but not fixed by the record, made a take-off, and was then in the process of executing a maneuver known as the three hundred sixty degree "spot" or precision landing, simulating a plane in distress. This maneuver is performed by a take-off from or above the north boundary of the airport and passing over a spot or imaginary line near the center of the field, at an altitude of approximately one thousand feet, immediately after which the motor is throttled, the plane begins to glide, gradually descends, and at undetermined distances, in succession, two one hundred thirty-five degree left turns are made, followed by a ninety degree turn to the left. The plane is then facing southerly, still losing momentum and is supposed to be about one thousand feet north of the north boundary of the field. The objective of this maneuver is to effect a safe landing at the spot or on the imaginary line near the center of the field or not more than three hundred feet beyond. It is an important phase of the training course of each student and is designed to test his ability to control and successfully ground a plane simulating distress from motor or other mechanical trouble. Necessarily, the pilot, to successfully execute this maneuver, is not required to observe nor follow fixed rules governing flights under normal conditions. If his ability to successfully perform the maneuver is demonstrated by test, he is entitled to a pilot's license.

Greer's whereabouts when he completed the ninety degree turn of the three hundred sixty degree maneuver is an embattled issue in the case. At all times he was at a higher altitude and was moving at a much greater speed than Weadock, after his take-off. He was thereafter descending whereas Weadock was ascending. The left wing of Greer's plane struck the body of Weadock's. Greer successfully grounded his plane but Weadock, possibly due to inexperience, failed to successfully ground his. He lost control and the plane dashed to the ground, causing the injuries alleged upon.

Concerning the physical condition of the airport and the amount and character of air traffic thereon, etc., at time of the accident, plaintiffs alleged, as was true: " * * * was rated as a fourth grade airport and had no runways or restricted areas for landing or taking off, although two or more schools were then engaged in giving flight training to more than seventy students, in addition to a general and indiscriminate use of said airport by the flying public at large."

Plaintiffs' suit originally was predicated upon various alleged acts of negligence charged to Badgett and his school while training and instructing young Weadock. However, the record clearly indicates, in fact, appellees virtually concede that but two of these charges of negligence are seriously relied upon for a recovery. These are given in brief of appellees' counsel, as follows:

"Point I

"In directing a preliminary flight trainee to take off, in the initial stages of his training, in solo flight, from an airport at a time when regulations governing contact flight had been dispensed with as to craft already in the air; and performing dangerous training maneuvers above such airport without warning the student of such condition, is actionable negligence; and

"Point II

"It is negligence to permit a flight trainee, in the initial stages of his solo flying, to take off from a busy airport accommodating commercial and private flying, together with two competitive flying schools, training inexperienced prospective aviators, without some character of flight supervision or control."

Defendants deny each of the alleged acts of negligence, and expressly aver freedom therefrom on the part of Badgett or his school or their agents, as the cause or contributing cause of the accident. Further answering, they allege that the collision was due to the manner in which young Weadock was at the time operating his plane and, also, to the negligence and lack of care of Walton Greer; that young Weadock, in keeping with the rules and regulations, had been taught and warned to make careful scrutiny of the air and flying conditions above the field before taking off to ascertain if it were safe to do so, and had he followed these instructions the collision would not have occurred. Further, in defense, defendants plead as follows:

"Further answering, shows that said Weadock took off for his flight and continued the same when there was risk of collision with another plane, and without giving the right of way to landing aircraft, all in violation of the Civil Air regulations; and that, although he should have maintained at all times a proper lookout ahead, he did not do so; and that at the time of the collision and prior thereto, he was operating his plane in a negligent, careless and dangerous manner.

"Further answering, shows that said Weadock, in enrolling as a student pilot at Centenary College and at the Badgett Flying School and in...