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District Court of Appeal, Second District, Division 2, California.

MARTIN SCHOOL OF AVIATION, Inc., a corporation, Plaintiff and Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association, As Executor of the Estate of Charles E. Rhoades, Deceased, Defendant and Respondent.*

Civ. 21882.

Decided: November 28, 1956

Winthrop O. Gordon and Nathan W. Tarr, Santa Ana, for appellant. William J. Cusack, Los Angeles, for respondent.

Plaintiff-Appellant, Martin School of Aviation, Inc., a corporation, sues as assignee of a partnership consisting of Floyd R. Martin, Joseph G. Hager and J. W. Martin, Jr., which had been doing business under the firm name Martin School of Aviation. Defendant is sued as ‘Executor of the Estate of Charles E. Rhoades, Deceased.’ For convenience the said partnership will be referred to as plaintiff and said Rhoades as defendant.

Plaintiff owned a Bonanza airplane which it rented to Rhoades for an early morning flight to the Imperial Valley for the purpose of shooting doves. The arrangement was made for Rhoades by one O. A. Kier, an experienced and competent pilot, who acted in said matter and in piloting the plane on the occasion in question as Rhoades' agent. The plane was located at Orange County Airport near Santa Ana, and the flight began at about 5:26 a. m. on the morning of September 2, 1953. Within three minutes and about three miles the plane crashed near Costa Mesa, which is to the southwest of the airport. Imperial Valley lies to the southeast. Rhoades, Kier and one C. O. Gregg were occupants, and all were killed in the accident. The action is for recovery of the value of the airplane. Judgment was rendered for defendant after a nonjury trial and plaintiff appeals.

Plaintiff's first amended complaint, upon which the case was tried, contains three counts. The first alleges that the bailment was made to Rhoades upon condition ‘that they would not take, or cause said plane to be taken, off from the ground until after daybreak and unless the weather was clear’; that the plane took off before daybreak and before the weather was clear; also that it was so negligently operated as to cause it to crash to the ground. This count seems to sound in negligence although it is also susceptible of treatment as one for breach of specific terms of the letting. The second cause of action incorporates by reference the averments as to the terms of the renting, includes an allegation of negligence and concludes with the charge that defendants ‘failed to return said airplane to plaintiffs in violation of their said agreement of bailment, and wrongfully breached said agreement of bailment to plaintiffs' damage.’ This seems intended as an action for breach of contract. The third count incorporates the previous averments of the terms of the bailment and further says that defendants ‘promised to return said airplane in good condition and wilfully and negligently failed and refused to return said airplane to plaintiffs and converted the same to his own use.’ Plainly this is a charge of conversion. The court found that defendant and Kier ‘agreed that they would not take or cause said plane to be taken from the ground if the weather was not good’; that they did not agree that the plane would not be taken from the ground ‘until after daybreak’; that when the flight started ‘the weather was good at that time’; that the plane was not operated negligently; the terms of the bailment were not breached; and there was no conversion.

At the trial plaintiff's counsel did not elect to avail himself of the rule that the burden of proof rests upon the defendant in a case such as this. It has long been established law in this state as elsewhere (see 6 Am.Jur. § 368–370, pp. 456–459), that a bailor who sues his bailee for conversion or breach of contract may safely rest after proving the bailment and failure to redeliver, because the burden rests upon the bailee to excuse his failure to return the property through proof that it was not due to his negligence or other fault. See discussion in George v. Bekins Van & Storage Co., 33 Cal.2d 834, at page 839, et seq., 205 P.2d 1037, at page 1041. There has been considerable uncertainty as to whether this rule applies to an action which sounds in negligence only. The George case definitely holds that it does apply to those instances which fall within the purview of the Uniform Warehouse Receipts Act. See 33 Cal.2d at pages 839–841, 205 P.2d at pages 1041–1042. Later cases indicate that the same rule applies to bailments not covered by the uniform act. See Downey v. Martin Aircraft Service, Inc., 96 Cal.App.2d 94, 98, 214 P.2d 581; Gardner v. Jonathan Club, 35 Cal.2d 343, 348, 217 P.2d 961; Redfoot v. J. T. Jenkins Co., 138 Cal.App.2d 108, 112, 291 P.2d 134.

In the case at bar the court ruled that the burden rested upon plaintiff to prove violation of the condition that the plane not be taken off the ground unless the weather was clear. Plaintiff's attorney acquiesced in that view and the case was tried upon that theory, which was expressly carried into the court's findings. Plaintiff's counsel, by such acquiescence, precluded it from thereafter claiming that the burden rested on defendant with respect to that phase of the case,—breach of contract. Redfoot v. J. T. Jenkins Co., supra, 138 Cal.App.2d 108, 112, 291 P.2d 134, and authorities there cited.

Appellant's counsel, impliedly recognizing this, argue that plaintiff did successfully carry the burden of showing a violation of the condition that the plane not be taken off the ground ‘unless the weather was clear.’ The finding is that, plaintiff having failed to prove that the weather was not good, ‘the court finds that the weather was good at that time.’

There is nothing in the record to show that the phrases ‘clear weather,’ ‘good weather,’ ‘bad weather,’ have any secondary or technical meaning. They are to be interpreted in the light of the subject matter of the contract. ‘A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.’ Civ.Code § 1647. ‘However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.’ Civ.Code § 1648. ‘If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.’ Civ.Code § 1649. In this connection it is interesting to note the different ways in which various persons expressed the weather idea. The complaint refers to clear weather, the findings to good weather. Mr. Elliott, who overheard part of the conversation which established the bailment, testified that J. W. Martin, Jr. (one of the partners) said ‘You could take the Bonanza providing that you didn't fly it at night or in an overcast.’ Mr. Pemberton, who also heard part of the same conversation, gave this version: ‘And Johnny said that, ‘If you take the Bonanza, you don't take off before daylight or you won't fly in the fog,’ and Red says, ‘Sure, Johnny, you know me; I wouldn't do it.’' Martin himself testified that ‘I told Mr. Kier that if he had to leave early, he couldn't leave before daylight or if the weather was bad, and we had been having bad weather.’ This different phrasing of the idea points to the central thought that the atmospheric conditions were to be such that flying would be reasonably safe. The phrase ‘clear weather’ is used in this sense in Wilson & Bryan on Air Transportation, at page 160: ‘Air traffic control is maintained by the administration of the Civil Air Regulations promulgated by the Civil Aeronautics Board. Two sets of flying rules—Visual Flight Rules and Instrument Flight Rules—are used; their use is determined by weather conditions prevailing at the time along the course of flight. In ‘clear weather,’ when the pilots can navigate their planes by ‘pilotage,’ that is, by visual operation from markings and landmarks along the airways, and can clearly see other aircraft or obstructions in time to avoid collision, flights may be governed by the Visual Flight Rules. These rules specify the distance that aircraft shall fly from clouds both in control zones and control areas, and elsewhere, together with ground and flight visibility and cruising altitudes when visibility is under three miles.' (Emphasis added.) ‘Clear weather’ is the phrase used by Martin in his complaint.

The flight was started at 5:26 a. m., daylight saving time, on September 2, 1953. According to Mitchell Cervantes, a deputy sheriff stationed at the airport, it was dark at the time and though there was visibility for about a mile on the ground there was fog at an elevation of about 400 feet. On cross-examination, after being confronted with the Weather Bureau report, hereinafter mentioned, he said the ceiling could have been 400, 800 or 1,000 feet high. Mrs. Kier testified that her husband, the pilot, called the Weather Bureau before leaving home and checked on the weather. It is to be presumed, Code Civ.Proc., § 1963, subds. 15, 20, that official duty was properly performed and that he was furnished the information which is disclosed by exhibit C, a Weather Bureau report on the state of the weather in that area and at that time. It says, in part: ‘Coastal cloudiness spread onshore during the evening, reaching the Santa Ana area near midnight and spreading inland to the coastal mountains by 0530 Pacific Daylight Saving Time * * *. The cloud base from the Los Angeles basin to Santa Ana was 800 to 1200 feet above sea level * * *. Top of the cloud layer was approximately 2000 feet above sea level. Visibility in the Long Beach-Santa Ana area at 0530 daylight time was mostly 4 to 7 miles, lowering to zero at cloud level. Above the 2000-foot level and inland over the remainder of southern California skies were clear and visibility was unrestricted * * *. The El Toro Marine Base near Santa Ana reported at 0528 daylight time that the sky was overcast, ceiling 800 feet, visibility 7 miles * * *.’ Of course, the El Toro report was not made until 5:28 a. m. and it could not have been known to Mr. Kier, who left the ground at 5:26 a. m. The fact is, however, that the ceiling at El Toro was 800 feet and that base is about the same distance from the ocean as the airport. When Rhoades and Kier arrived to start their flight, Kier pointed skyward and said to Cervantes: ‘Good morning. How long has it been like this?’ As the plane left the ground Rhoades waved and said: ‘This is a hell of a time of the morning to go out and kill a few birds.’

Just before the plane crashed it circled a few times over Costa Mesa and this was heard by William F. Moore who lived there. He testified that he got out of bed, went outside to see whether the plane was lost in fog, but the ceiling was very low, about 200 feet, and he could not see the plane. After the crash he viewed it about two blocks his home. Mrs. Robert Neighbors also lived in Costa Mesa. She said she was awakened by the roar of the plane, got out of bed and saw it circling above her home. She gave a plain reason for seeing it, namely, that the rear third of it was engulfed in flames. She ‘did not notice any fog.’ If the plane was aflame there would be little likelihood of her noticing fog, if any were present. Mrs. Elese Becker, also living in Costa Mesa, heard but did not see the plane. Just before it crashed the room occupied by her and others suddenly ‘lit up’ and all of them screamed. The crash was across the street from them and their evergreen tree was set afire. She was not asked about fog or clouds.

The only evidence that there was no fog was the statement of Mrs. Neighbors that she noticed none. However, there was a definite conflict between her testimony and that of Mr. Moore. He could not see the plane as it circled over Costa Mesa and she saw it clearly. For present purposes, Mrs. Neighbors' version of having seen the plane must be accepted. But absence of fog over Costa Mesa did not disprove its existence at the airport, some miles away, at the time of the take-off. Costa Mesa is close to the ocean and well may be free of fog or overcast while the airport is cloaked in it. The testimony of Cervantes stands undisputed as to the existence of a layer of clouds at that point and it cannot be rejected arbitrarily. Joseph v. Drew, 36 Cal.2d 575, 579, 225 P.2d 504; 19 Cal.Jur.2d § 475, p. 238. In the circumtsances, the testimony of Mrs. Neighbors that she ‘noticed’ no fog cannot be accepted as substantial evidence opposed to the testimony of Cervantes and the official showing of the Weather Bureau report above quoted. ‘The rule is that an appellate court will not interfere with the judgment where there exists a substantial conflict in the evidence. * * * ‘* * * There must be more than a conflict of mere words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reasonably supports the judgment as applied to the peculiar facts of the case. The rule announced in Morton v. Mooney, 97 Mont. 1, 33 P.2d 262, 266, correctly states the rule which has been approved by this court in a number of our decisions. It thus stated: ‘While the jurors are the sole judges of the facts, the question as to whether or not there is substantial evidence in support of the plaintiff's case is always a question of law for the court * * * and, in determining this question, ‘the credulity of courts is not to be deemed commensurate with the facility or vehemence with which a witness swears. ‘It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude its judgment.”’'' Hall v. Osell, 102 Cal.App.2d 849, 853, 228 P.2d 293, 296. ‘While it is true that ‘the findings of the trial court will not be disturbed on appeal if the record discloses substantial evidence to support them’ * * * such rule has no pertinency where the evidence without conflict clearly establishes the impropriety of the inferences drawn by the court from the uncontroverted facts.' In re Estate of Tarrant, 38 Cal.2d 42, 51, 237 P.2d 505, 509, 28 A.L.R.2d 419. See also, In re Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54, as to what constitutes substantial evidence.

It is clear that Kier took off under a ceiling which was not less than 200 feet nor more than 1,000 feet above the ground. In that situation a visual contact flight could not be made without violation of the applicable air traffic rules. At this point § 1648, Civil Code, becomes peculiarly pertinent. These men were not talking about weather for an automobile trip, or one in a sailboat or yacht, nor weather for a baseball or football game. What they obviously had in mind was a flight which would be safe for all in the plane, for other flyers in the sky, and which would result in a safe return of the rented plane. It cannot be said reasonably that the specification of clear weather could mean anything less than a flight which could be made in conformity with the safety rules established by competent authority.

We take judicial notice of those rules, Parker v. James Granger, Inc., 4 Cal.2d 668, 677, 52 P.2d 226, which apply to intrastate, as well as interstate, flights (7 Cal.Jur.2d § 15, p. 465).1 They comprise Part 60 of Civil Air Regulations (Code of Federal Regulations, Title 14, Civil Aviation). Pertinent portions are set forth in the margin.2 There is nothing to suggest and the evidence precludes the inference that this was or was to be an instrument flight.3

With a ceiling of 800 feet, or even 1,000 feet the visual flying rules could not be met. The minimum altitude of the plane must be not less than 500 feet above any structure in any event and when over any town or settlement not less than 1,000 feet (60.17). The top of the cloud formation was 2,000 feet above sea level, making it some 1,200 feet in thickness. When the plane is more than 700 feet high it must be flown not less than 500 feet below the ceiling, which would not be possible with a 1,000 or an 800 foot ceiling. When at 700 feet or less the plane must not be flown unless clear of clouds, and it cannot fly at that level over any city, town or settlement (60.17). As a practical matter the weather was such that a visual flight could not be made (60.83, 60.89). It is not a reasonable inference that the conditions existing at the Orange County Airport amounted to good weather or clear weather for an airplane flight, or within the meaning of the contract made by the parties. The insufficiency of the evidence to support the weather finding requires that the judgment be reversed.

Because of the necessity of a new trial it is appropriate to comment upon the negligence issue. We hold, upon the authority of the Gardner, Downey and other cases above cited, that the burden rests upon defendant to exonerate himself from a charge of negligence growing out of the failure to return the rented airplane. ‘The principles which apply are in the nature of those which are involved in the doctrine of res ipsa loquitur. In fact this doctrine has been by some authorities mentioned as applicable. * * * This holding puts negligence in ex delicto bailment cases and negligence in other tort cases on a parity. Moreover, it brings the ex-contractu action for breach of the contract of bailment because of loss or damage in line with the action for negligence for such loss or damage. There is no real reason why the form of action should materially change the remedy or fasten on the plaintiff a greater burden in one case than in the other. If the law is otherwise, holdings which will bring it in accord with this policy are overdue.’ Romney v. Covey Garage, Utah, 111 P.2d 545, 546. Counsel for plaintiff did not waive this point during the trial, or at all.

A presumption or inference of negligence on defendant's part immediately arose when the bailment and non-return of the plane were proved. See Redfoot v. J. T. Jenkins Co., supra, 138 Cal.App.2d 108, at page 114, 291 P.2d 134, and authorities there cited. Likewise, flying in violation of the regulations, if that occurred, created such a resumption. Hall v. Osell, supra, 102 Cal.App.2d 849, 852, 228 P.2d 293. The fact that Mr. Kier was killed in the accident raises the presumption that he exercised due care throughout, Scott v. Burke, 39 Cal.2d 388, 394, 247 P.2d 313, and that presumption also inures to the benefit or decedent Rhoades, his employer. Wells Truckways, Ltd. v. Cebrian, 122 Cal.App.2d 666, 679, 265 P.2d 557; Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151, 156–157, 219 P.2d 506. The trial judge is therefore presented with conflicting presumptions which must be weighed against each other and in conjunction with the circumstantial evidence tending to sustain the one or the other. Scott v. Burke, supra, 39 Cal.2d at page 399, 247 P.2d at page 319. One the new trial of this case the question of negligence will be open for determination either way by the judge or jury.

Concerning the issue of whether the parties agreed that the plane should not be taken off the ground until after daybreak the evidence, though surprisingly weak, compels a holding that it was legally sufficient to support the finding that there was no such agreement. The positive evidence of three witnesses, Elliott, Pemberton and Martin, Jr., was rejected in favor of an inference deduced from a report made by Martin (one of the partners who owned the plane) to the Civil Aeronautics Board,—that, plus Martin's reactions when confronted with the same upon examination under § 2055, Code of Civil Procedure. That too will be open for examination upon a new trial.

Plaintiff has appealed from the judgment except the portion in favor of defendant Don W. Brookmeyer.

The portion of the judgment from which the appeal was taken is reversed.


1.  And do so regardless of whether the trial court has availed itself of such information (cf. 18 Cal.Jur.2d § 23, p. 445).

2.  Section 60.12 says: ‘Careless or reckless operation. No person shall operate an aircraft in a careless or reckless manner so as to endanger the life or property of others.’ And explanatory note (b): ‘The operation of aircraft at an insufficient altitude endangers persons or property on the surface or passengers within the aircraft. Such a flight may also constitute a violation of § 60.17.’ Section 60.17 prescribes minimum safe altitudes. So far as pertinent here it says: ‘Minimum safe altitudes. Except when necessary for take-off or landing, no person shall operate an aircraft below the following altitudes: * * * (b) Over congested areas. Over the congested areas of cities, towns or settlements, or over an open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft. * * * (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In such event, the aircraft shall not be operated closer than 500 feet to any person, vessel, vehicle, or structure. * * * (d) IFR operations. The minimum IFR altitude established by the Administrator for that portion of the route over which the operation is conducted. * * *’ The Visual Flight Rules are prescribed by § 60.30, which says: ‘Ceiling and distance from clouds. Aircraft shall comply with the following requirements as to ceiling and distance from clouds: (a) Within control zones. Unless authorized by air traffic control, aircraft shall not be flown when the ceiling is less than 1,000 feet, or less than 500 feet vertically and 2,000 feet horizontally from any cloud formation. (b) Elsewhere. When at an altitude of more than 700 feet above the surface aircraft shall not be flown less than 500 feet vertically and 2,000 feet horizontally from any cloud formation; when at an altitude of 700 feet or less aircraft shall not be flown unless clear of clouds.’ Ceiling is defined in § 60.72: ‘Ceiling. The distance from the surface of the ground or water to the lowest cloud layer reported as ‘broken clouds' or ‘overcast’.' ‘IFR’ means instrument flight rules (§ 60.82), and ‘IFR conditions' are defined as: ‘Weather conditions below the minimum prescribed for flights under VFR.’ (§ 60.83.) ‘VFR conditions' are defined as: ‘Weather conditions equal to or above the minimum prescribed for flights under VFR.’ (§ 60.89.) Before starting an instrument flight a ‘flight plan shall be filed with air traffic control.’ (§ 60.41.)

3.  ‘Under the IFR, the planes must be operated by use of flight instruments and radio communication facilities. The pilots are required to file their flight plans with Air Traffic Control and to receive approval prior to departure. ‘A pilot flying under IFR conditions must receive approval of his flight plan from the airway traffic-control center nearest the point from which he proposes to take off before commencing flight. After the plane takes off, the pilot is required to maintain continual communication with ground radio stations throughout the flight.’ (Wilson & Bryan on Air Transportation, supra, p. 161.)

ASHBURN, Justice.

MOORE, P. J., and FOX, J., concur.

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