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District Court of Appeal, Second District, Division 3, California.


Civ. 14185.

Decided: May 25, 1944

Joe Crider, Jr. and Frank B. Belcher, both of Los Angeles, for appellant. Kenneth E. Grant and J. Edward Haley, both of Los Angeles, for respondents.

At 1:40 p. m. on the 16th day of May, 1938, an airplane, which had just been completed by the defendant, Lockheed Aircraft Corporation, tested and found wanting in no detail, took off from the Union Air Terminal at Burbank on a flight to Las Vegas, Nevada, where it was to be delivered to the Northwest Air Lines, Inc. In the seats provided for the pilot and copilot in this dual control ship, sat Fred W. Whittemore, a licensed pilot with more than ten thousand hours of flying experience and the operations manager of the plane's purchaser, and Sid Willey, one of the defendant's skilled pilots. As passengers, the plane carried Mr. Salsbury, who had been serving as the Northwest Air Lines' resident engineer during the construction of the plane, six other persons, and their one hundred fifty pounds of baggage; not a capacity load. Twenty–five minutes after its take–off the plane, shrouded in fog, circled and then crashed into a mountain side, taking the lives of all on board.

This action was brought by the widow of Mr. Whittemore to recover from the defendant company the damages she suffered by reason of the death of her husband. The theory of her complaint was that her husband's death had been caused by the negligence of the defendant; she did not and does not contend that any one was intoxicated or guilty of wilful misconduct. If Mr. Whittemore was a noncompensating guest, therefore, the plaintiff has no cause of action against the defendant. (Sec. 11 1/2, California Air Navigation Act, Gen.Laws 1937, Act 151.) Upon the first trial of this action the trial court, convinced that as a matter of law Mr. Whittemore was a noncompensating guest, granted a nonsuit. This judgment was reversed on appeal by this court (Whittemore v. Lockheed Aircraft Corp., 1942, 51 Cal.App.2d 605, 125 P.2d 531), and the action was retried, resulting in a verdict and judgment for $25,000. Defendant's appeal from this judgment is based, in part, upon the giving of an instruction which represents a complete swing of the pendulum from the trial court's position on the first trial, an instruction given at plaintiff's request, which declared “on the flight of defendant's plane from Burbank, California, to Las Vegas, Nevada, the decedent Fred W. Whittemore was in law a passenger, and the defendant therefore owed him the duty of ordinary care and diligence for his safe carriage.” It was error, we have concluded, to give this instruction, and for this error, and others, this judgment also is to be reversed.

It was error to give the quoted instruction for two reasons. In the first place, the question was one that should have been left to the jury as one of fact. We do not go so far as to agree with the defendant's contention that the conclusion expressed in the preceding sentence was established as the law of the case on the former appeal. This court, in its first review of this case, held that the evidence warranted the jury in concluding that Whittemore was a passenger, “meaning one,” care was taken to state, “who is not a nonpaying guest and who is not engaged in a joint enterprise.” It was not necessary to the decision, and it was not declared, that there was or was not evidence which would have supported the contrary conclusion, that is, that Whittemore was a noncompensating guest. On this appeal we find that there was such evidence.

The evidence, in all its paucity, was set out on the former appeal and need not again be detailed by us. It should be borne in mind, as we now consider that evidence in reviewing, not a nonsuit, but an instruction advising the jury that Whittemore “was in law a passenger,” that the burden was upon the plaintiff to prove that Whittemore was not a “guest riding in [the] aircraft without giving compensation for such ride or * * * while engaged in a joint enterprise with the airman flying the same,” (quoting from section 11 1/2, California Air Navigation Act, which appears in full in our previous opinion). This was stated to be the rule on the former appeal (page 609 of 51 Cal.App.2d and page 533 of 125 P.2d), and is in harmony with the cases announcing the rule under the like provisions of the automobile guest statute. Kruzie v. Sanders, 1943, 23 Cal.2d 237, –––, –––, 143 P.2d 704, 705; Jenkins v. National Paint & Varnish Co., 1936, 17 Cal.App.2d 161, 163, 164, 61 P.2d 780, 781. The entire absence of any evidence revealing the reason which brought Mr. Whittemore to Burbank and the failure of the witnesses to report one word, written or spoken, which would explain how Whittemore arranged to board the plane at Burbank, might well have caused the jury to feel that there were too many stones lacking in the foundation to give them a basis for determining that the defendant was in some way being compensated for furnishing Whittemore a plane ride from Burbank to Las Vegas. In support of the thesis of the former opinion the possibility of several reasonable inferences was developed. These inferences, however, as we examme them from the viewpoint of this appeal, are not ineluctable; they do not lead inescapably to the conclusion that the defendant received a benefit of a tangible nature as a consideration for accepting Whittemore as a guest. Not to recognize this as true is to take the untenable position that one may not give a ride to one, with whom he has and hopes to do business, except as a paying passenger. In this connection we find these words from Blank v. Coffin, 1942, 20 Cal.2d 457, 460, 461, 126 P.2d 868, 870, most appropriate: “It is not always possible for a party to a lawsuit to introduce evidence directly bearing upon the existence of a fact that he is attempting to prove. The evidence available to him may serve only to establish the existence of certain primary facts that are logically connected with the material fact. If a jury can reasonably infer from these primary facts that the material fact exists, the party has introduced sufficient evidence to entitle him to have the jury decide the issue. The jury is not compelled to draw the inference, however, even in the absence of contrary evidence and may refuse to do so. Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury.”

Not only was it error to instruct the jury that “Fred W. Whittemore was in law a passenger” for the reason that the issue involved was one of fact, not law, but for the second reason that the wording of the instruction naturally would and actually did confuse the jury. In legal literature the words “guest” and “passenger” have acquired connotations of which jurors, almost without exception laymen, are quite unconscious. The statute itself does not differentiate between “passengers” and “guests” but refers to a “guest” who rides “without giving compensation for such ride.” It does not appear that the jurors in this case were aware that there was any question as to whether Whittemore was a “passenger” as distinguished from a “guest.” Nothing occurred during the course of the trial that would bring such an issue to focus, and in view of the fact that the court advised counsel before argument that he was going to take the question from the jury it is not to be presumed that it was discussed in argument. But it does clearly appear that one of the important questions of the case was whether Whittemore was a “passenger” as distinguished from the “pilot” flying the plane. Much of the evidence was addressed to this question, and pointing to it were many objections, followed by huddles at the bench and the consequent rulings. That it was regarded by at least one juror as an important issue is evidenced by a question asked upon the occasion of their first return to the court room after their deliberations had progressed to a point, or points, of confusion. The foreman had requested further light on “negligence” and “contributory negligence,” and then another juror inquired of the court: “In your instructions did you state Mr. Whittemore was a passenger or a passenger pilot?” By way of reply the instruction we have been considering was reread to the jurors. Then followed a lengthy discussion in chambers, in turn followed by a return to the court room and a rereading of an instruction which outlined to the jury the order in which they should consider the problems of the defendant's negligence, its proximate effect, Whittemore's negligence, its contributory effect, and the question of damages. Then this colloquy took place between the juror who had previously inquired concerning the subject, the trial judge, and counsel:

“Juror Number 6: Your Honor please, was his status established? That seems to be our worry.

“Mr. Crider: That depends upon what he means by ‘established.’

“The Court: I don't understand what you mean by ‘established.’

“The Juror: In your instructions at first you said he was a passenger. You have affirmed and denied that since then. Does he still remain a passenger?

“The Court: Yes.

“Mr. Crider: That doesn't determine the question, even though he was a passenger, as to who was driving the plane.

“Mr. Grant: I object to the argument of counsel.

“The Court: Objection sustained. I don't think you should have any argument. It is for the jury to determine, it is their exclusive province to determine the facts in the case, consider and weigh the evidence for that purpose. Of course, it is the duty of the court to instruct you on the law. Any other question? All right, the jury may retire for further deliberation.”

Some hours later the jury again appeared in the court room, announced that they had stood seven to five on every ballot, and, upon invitation, an unidentified juror stated: “Your Honor, there still was controversy on the point of what was considered contributory negligence and negligence. That is still being thrashed out. Also a passenger in the plane.” Another discussion between court and counsel occurred in chambers, during which defendant's instruction No. X and then plaintiff's instruction XX, were written out in longhand. Once again in the courtroom the trial judge reread some instructions defining negligence and contributory negligence; again, as plaintiff's counsel had repeatedly requested him to do during the conference, he read the instruction which we have quoted, with its statement “Mr. Whittemore was in law a passenger”; and he then concluded with these two new instructions, the first one being defendant's instruction No. X: “You are instructed that it is a question of fact for you to determine who was actually piloting and flying the plane at the time of the accident and at the time the plane left the ground at Burbank”; the second, plaintiff's instruction No. XX: “If you find from the evidence that the decedent Fred W. Whittemore was actually operating the plane at the time of the crash you are instructed that he was not by reason thereof guilty of contributory negligence unless you further find that some negligence on his part in such operation of the plane as distinguished from the general management, direction and control thereof proximately contributed to the accident and to his death.”

Even if the evidence permitted of but one conclusion, and that was that Whittemore was a paying guest, it would have been unnecessary and improper to advise the jury that he was a passenger, for all that they need be advised would be that the measure of defendant's duty was that of ordinary care. The repeated giving of the instruction was confusing, and the giving of defendant's instruction No. X, it is our opinion, did not serve to cure the confusion.

The extent of the prejudice which the defendant suffered by the failure of the trial court to clear up the uncertainty created, by its use of the word “passenger,” in the minds of the jurors struggling with the questions “Was Whittemore piloting the plane?” and “If so, was he guilty of contributory negligence?” becomes more apparent when we consider the added harm erroneously done to defendant's cause by plaintiff's instruction No.XX. We find the genesis of an important portion of the instruction in plaintiff's amendment to her amended complaint, where she alleged that the defendant “so carelessly and negligently constructed, maintained, cared for, directed, managed and controlled its said transport airplane that * * * while defendant was flying it to its destination at Las Vegas, Nevada, said airplane crashed to the earth * * *.” The evidence utterly fails to substantiate the averments that the defendant was in any way wise negligent in the construction, maintenance or care of the plane, and this the plaintiff now admits. The only negligence of which the jury could have found the defendant guilty was that generally described as having to do with the direction, management and control of its plane, and specifically described, in further averments in the amendment to the amended complaint, as having the plane take off on a combat flight and continue on such flight to the point of the crash, in the face of information that weather conditions did not permit of contact flying.

There was no occasion to touch on this phase of the case, upon the former appeal, and it will be better understood if a background is sketched of the facts which the jury may well have drawn from the evidence which was, in the main, without conflict. The defendant company had originally assigned pilot Downes to fly the plane from Burbank to Las Vegas. Somewhere between 7:30 and 8 a. m. on the day of the fatal flight, Downes inquired about the weather at the United States Weather Bureau, located in the Union Air Terminal at Burbank, and was told that contact flying through the Mint Canyon section to Las Vegas was not possible, at the time, and probably would not be possible during the day. (Contact flying, the jury was informed, is flying in which the pilot is enabled to keep to his course by keeping the earth's surface in view.) Around 11 or 11:30, of the same morning, for personal reasons Downes was relieved of his assignment and Willey was substituted as defendant's pilot in charge of the delivery flight. Willey, incidentally, was licensed to do instrument flying and the plane was equipped for it. At 1:20 Willey telephoned his flight plan to the manager of the airport traffic control tower. In it he stated his destination, identified his plane and furnished other required data, and added: “Flying contact to Palmdale.” Whittemore, it was stipulated, was familiar with this flight plan. He and Willey were in a group near the plane, just before or just after the flight plan had been given, and was heard to say to Willey: “Let us go up and check the weather.” Thereupon the two went up to the building where the weather bureau was located, returned shortly, and got into the plane. Willey first occupied the left–hand seat in the cockpit, but relinquished it to Whittemore after the latter arrived and spoke to him. Whittemore then slid the window open, signalled with his arm and received an answering signal indicating that all was clear so that the engines might be started. He then started the engines, let them idle a minute or so, put his head out of the window, looked forward and back, signalled to a member of the ground crew, and finally, a return signal having been given, the plane taxied to the runway, and took off.

From this evidence the jury could have concluded with confidence that Whittemore was at the controls when the plane took off on its fatal flight and was still flying the plane when it crashed, less than a half hour later. Willey, to be sure, was the defendant's agent, in charge of the plane and of the flight, so far as the defendant was concerned, but that fact did not preclude the jury from concluding that Whittemore was flying the plane, of his own will. The defendant may have been negligent because Willey, with weather information much later than that received by Downes early in the morning, did not act as an ordinarily prudent person would have acted, in permitting the plane to take off and continue on a contact flight in the face of the known low to vanishing visibility. Such negligence, of course, falls within plaintiff's accusation that the defendant carelessly directed, managed and controlled its plane. Can it be argued that Willey was negligent in this particular, but that Whittemore, if possessed of equal knowledge of conditions and greater air experience than Willey, was not negligent? Answering our rhetorical question, we admit that such an argument could be made, but believe that it must have fallen on deaf ears. In any event, and this is the extent of our holding, the jury could have concluded that Whittemore was negligent for the same reasons and to the same extent that Willey was.

How reconcile this statement with the jury's verdict? A possible answer is found in the last instruction given them before that verdict was returned. By it they were advised, in effect, that Whittemore, if himself operating the plane, was not to be held guilty of contributory negligence unless he operated it negligently as distinguished from the general management, direction and control thereof. In other words, any negligence arising from his taking off and continuing on a contact flight, under conditions known to him to be risky for that type of flying, was eliminated from the jury's consideration with respect to Whittemore's contributory negligence; he was to be found contributorily negligent only if in the operation itself there was fault to be found. The defendant criticizes the giving of this instruction “for the reason that it is confusing, meaningless, and inapplicable to the facts of the case.” This criticism would be just if the instruction were not susceptible of the interpretation we have ascribed to it, but so understood, it is not meaningless, just erroneous.

It has become obvious that in support of defendant's charge that Whittemore's negligence was a contributing factor in the accident, any competent evidence tending to prove that Whittemore was flying the plane should have been received. Such evidence was offered, by the defendant, but rejected. It will be recalled that Willey first seated himself in the cockpit on the left side, but gave up his seat to Whittemore. By questions, to which objections were sustained, and by offers of proof, which proved futile, the defendant endeavored to show the significance of this maneuver. It tried to prove that it was the general custom among flyers, “an absolutely universal unwritten custom and unwritten law among pilots,” for the pilot who was going to do the flying, in a dual control plane, to take the seat on the left–hand side of the cockpit. The defendant also tried to introduce evidence that on each of the four previous trips on which Whittemore had accompanied newly completed planes on the delivery trips to Las Vegas, he had taken the left–hand seat and flown the ship all the way. (The defendant had made and delivered ten or twelve planes to Whittemore's company.) Objections were properly sustained to the questions whose object was to prove that Whittemore had on four occasions done one thing, in the expectation that the jury would infer therefrom that he had done the same thing the fifth time. An inference is not authorized upon so unsubstantial a basis. With respect to the significance of Whittemore's taking Willey's seat quite a different situation is presented. A jury would be fully justified in concluding that the person, who was seated on the left–hand side of the front seat of an ordinary looking automobile moving along Highway 101, was doing the driving. Unless our memory is faulty, a jury could with reason have inferred, in the gay nineties, that the person sitting on the right side of a “dual control,” one–horsepowered, buggy, was the driver. Had the defendant been allowed and able to introduce the testimony it announced itself prepared to introduce, the jury could with reason have inferred that Whittemore, because he took the left–hand seat with Willey's acquiescence, was the pilot who was to control the flight of the plane on its take–off and until such time as a reason arose for a change over to the copilot.

In the event of a retrial it is unlikely that the plaintiff will repeat her question about insurance, in the jury's presence, so we shall not dwell upon that incident. Nor do we find it necessary to consider other matters that have been brought to our attention. For the reasons already given, the judgment is reversed.

BISHOP, Justice pro tem.

DESMOND, P. J., and SHINN, J., concur.