Boyd v. White

Plaintiff brought this action to recover damages for fright and mental suffering and for injury to her real property caused when an airplane crashed into her home. The plane was piloted by Ernest J. Galindo, named as a defendant. Galindo had a student pilot certificate, and was taking flying lessons from Lenerville, who operated a flying school at the airport in question. Galindo, under Lenerville’s supervision, had flown solo prior to the accident here involved. Lenerville, also named as a defendant, owned several planes, but, on the day here involved, when Galindo desired to rent a plane, all of Lenerville’s planes were in use. Accordingly, pursuant to a prior oral arrangement with Howard R. White and Fred W. Sautter, partners in the operation at the same airport of the Garden City Aero, and also named as defendants, Lenerville rented a plane from White and Sautter, and, in turn, rented that plane to Galindo. It was that plane, operated by Galindo flying solo, that crashed into plaintiff’s home. Galindo, although injured, was not killed. As a defendant he defaulted, although he appeared as a witness at the trial. Motions for a nonsuit and for judgment on the pleadings by Lenerville were denied. A motion for a nonsuit by White and Sautter was granted on the ground that the doctrine of absolute or strict liability, as a matter of law, did not apply to them. Judgment of nonsuit was entered in their favor. From that judgment plaintiff appeals. This appeal involves, therefore, only the problems revolving around the liability of White and Sautter, if any, and does not involve any problems relating to the liability of Galindo or of Lenerville.

This being an appeal from a judgment of nonsuit, all conflicts in the evidence must be resolved in favor of appellant, and every reasonable inference permitted by the evidence must be indulged in her favor. So considered, the facts are as follows;

In the year 1949 respondents operated the Garden City Aero at Reid-Hillview Airport in San Jose. They owned six planes. They rented them to pilots, flew charter and freight, and instructed students in flying. Located at the same airport were several other flying schools, including one

On August 28, 1949, Galindo, then 24 years of age and regularly employed at a local cannery, came to Lenerville, a qualified instructor, to continue his flight instruction. Galindo had taken lessons from Lenerville in 1948, but this instruction had been interrupted for a period of nine months prior to August 28,1949, because Galindo, during such period, was in the Marines. During those nine months Galindo had done no flying. Galindo had a duly issued “Student Pilot Certificate.” During his prior instruction from Lenerville he had qualified to fly solo. His log book shows that he had some 15 solo flights in October of 1948 and three solo flights in November of 1948, November 8th being the date of his last flight before returning to duty with the Marines.

Galindo knew respondent White. Galindo testified that, before starting his flight instruction from Lenerville in October of 1948, on three occasions in June, July or August of 1948 he had discussed with White the possibility of buying a plane from him. Later that same year Galindo had approached the Garden City Aero to secure instruction as a student pilot under the G. I. Bill. The Garden City Aero refused to take Galindo on as a student, partly because it already had all of the students it could handle, and partly because White’s partner thought Galindo, for some undisclosed reason, did not have a good character. At any rate, White recommended Lenerville as an instructor, referred Galindo to him, and Lenerville agreed to take on Galindo as a student." It also appears that in November, 1948, just before he went into the Marines, Galindo was accused by

On August 28, 1949, Galindo talked with Lenerville about renewing his flight instruction, and Lenerville agreed to continue with the program. Lenerville had no planes then available. He went to White’s office and arranged to rent a plane from him. Apparently Galindo did not accompany Lenerville to White’s office, but Galindo was present when Lenerville and White came out of the latter’s office and White showed “us” which plane to take. The plane designated was a two-seater dual-operated training plane customarily used for flight iustruction. White gave no instructions as to who was to fly the plane or how it was to be operated. He admitted that he understood that the plane was to be flown by someone other than Lenerville. Although White testified that he did not know who was to fly the plane, and Lenerville testified that he did not tell White that a student pilot was to fly the plane, from the evidence above set forth about White’s past relationships with Galindo, and about White showing both Lenerville and Galindo what plane to take, it is a reasonable inference that White knew or should have known that Galindo was to fly the plane. Pursuant to the oral arrangement above discussed White charged Lenerville $5.00 for the rental of the plane for one hour, and Lenerville charged Galindo $10, which included the fee for instruction.

Although Galindo had flown solo in the past, because he had not flown for nine months, Lenerville recommended that he fly dual with Galindo as a check to see if Galindo was proficient enough to fly solo. The two flew for about 30 or 40 minutes when Lenerville became satisfied with Galindo’s ability to fly solo. The plane was brought to earth and Lenerville got out. Galindo then took the plane up, heading towards Warm Springs Airport, the area between the two airports being considered by instructors and students as a practice area. Galindo testified that, after making a broad turn after the takeoff, he got up about 1,000 feet when the motor started to sputter and he began to lose altitude. It was a cool day and he thought perhaps his carburetor was beginning to ice up so he put on the carburetor heat. This

The appellant filed a first, amended complaint in five counts. The first cause of action was against Galindo for trespass, but alleges that respondents and Lenerville were in the business of renting planes to untrained pilots; that such business was extrahazardous; that respondents owned the plane involved and that such plane was rented to Galindo by Lenerville, the latter acting as the duly authorized agent of respondents. The second cause of action was against all defendants, including respondents, incorporates the agency allegations of count one and specially alleges that respondents, acting through their" agent Lenerville, negligently permitted Galindo, an untrained and unlicensed pilot, to use the plane.

The third cause of action was directed against respondents, and charged them with negligent maintenance and repair of the plane which caused the accident. At the inception of the trial it was stipulated that this count should be dropped “in that there is now no claim made that that Defendant [respondents] negligently maintained an airplane or that the airplane was in a defective condition.”

The fourth cause of action was against Lenerville alone, but the fifth was against respondents, alleging an absolute liability based on the agency allegations of count one. Thus, at the trial, only the second and fifth causes of action involved respondents, and in both it was alleged that there was an agency relationship between Lenerville and respondents, the fifth seeking to impose an absolute liability, and the second seeking to impose liability as a result of negligence.

Respondents contend that the only causes of action pleaded against respondents are based on a claimed agency relation

We agree that the first amended complaint pleads that Lenerville was the agent of respondents, and we are further of the opinion that there is no evidence, and no reasonable inference from the evidence, that such an agency relationship, in fact, existed. There is no evidence that Lenerville acted or agreed to act under respondents’ direction or control, or that he agreed to act on behalf of respondents. Such evidence is essential to prove an agency. (Malloy v. Fong, 37 Cal.2d 356 [ 232 P.2d 241 ]; Edwards v. Freeman, 34 Cal.2d 589 [ 212 P.2d 883 ].) The transaction was simply one whereby White rented a plane to Lenerville, knowing that Lenerville intended to rent it to someone else, probably a student.

However, although there was a failure of proof as to agency and a variance, the argument that either misled or prejudiced respondents is not impressive. Of course, it would have been better practice for appellant originally to have pleaded a cause of action based on the theory of absolute liability regardless of agency, or to have moved to amend to conform to proof to allege such a cause of action. But the failure to do so is not always fatal. It is expressly declared by statute that “No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice.” (Code Civ. Proc., §469; see Hayes v. Richfield Oil Corp., 38 Cal.2d 375 [ 240 P.2d 580 ]; Lehmann v. Mitchell, 109 Cal.App.2d 719 [ 241 P.2d 573 ]; Martin v. Henderson, 124 Cal.App.2d 602 [ 269 P.2d 117 ]; Treu v. Kirkwood, 42 Cal.2d 602 [ 268 P.2d 482 ].) If appellant is correct that ownership of the plane and knowing participation by such owner in permitting it to fly, is sufficient to impose absolute liability on the owner, then respondents could not possibly have been prejudiced by the pleading basing such liability on agency.

This brings us to the main question presented on this appeal —is the owner of a plane who leases it to a competent flying instructor, knowing it is to be flown by a student pilot, strictly or absolutely liable to third persons for ground damage caused by the student pilot while flying the plane? As already pointed out, reasonably interpreted the evidence shows that respondents knew or should have known when they rented the plane to Lenerville that he intended to rent it to a student pilot, and in that sense participated in sending the plane aloft. In exhaustive and extensive briefs appellant argues for the imposition on owners or lessees of planes who participate in sending them aloft of the doctrine of strict liability so as to impose liability against such owners or lessees for damages in favor of ground victims when the pilot makes a forced landing outside established landing areas. Appellant would like to treat this as a question of first impression in this state, and to make the issue one of public policy that should be decided by the courts and not by the Legislature. As will be seen, the problem is not one of first impression, and the public policy arguments should be addressed to the Legislature and not to the courts.

The basic question involved is whether renting airplanes to a qualified instructor when it is foreseeable that a student pilot will fly the plane is engaging in such an extra-hazardous occupation that the courts should hold that the doctrine of strict liability should be applied. The Restatement of Torts has adopted the view that flying is an extra-hazardous activity and for that reason the doctrine of strict or absolute liability should be applied. Section 519 of the Restatement provides that, except in certain cases not here involved, “one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.” Section 520 defines an ultrahazardous activity as one which—

This concept of absolute liability of owners of planes is also contained in the Uniform Aeronautics Act proposed by the Commissions on Uniform State Laws in 1922. (11 U.L.A. 159.) Section 4 of that proposed statute first declares that flight of aircraft over the lands and waters of the state is, subject to certain exceptions, lawful, and then continues: “The landing of an aircraft on the lands or waters of another, without his consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the aeronaut shall be liable, as provided in Section 5.” Section 5 of the proposed act reads as follows: “The owner of every aircraft which is operated over the lands or waters of this State is absolutely liable for injuries to person or property on the land or water beneath, caused by the ascent, descent or flight of the aircraft . . . whether such owner was negligent or not, ... If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. An aeronaut who is not the owner or lessee shall be liable only for the consequences of his own negligence.”

At one time over 20 states had adopted this proposed act, most of them during the nineteen-twenties. Some of these states adopted the proposed uniform act in toto, while others adopted it with various modifications, particularly of section 5. (See 11 Uniform Law Annotated, p. 162 et seq.) In August of 1943 this proposed act was declared to be “obsolete” and was “withdrawn” by the commissioners.

Some states, in reliance on the Restatement, have adopted the doctrine of strict or absolute liability, and some have refused to follow the Restatement in this respect. So far as the liability of the owner of a plane who rents it to another is concerned, the general prevailing view is that in the absence

“The courts and the law formerly looked upon aviation with the viewpoint still expressed in the American Law Institute, Restatement, Torts, Yol. 3, § 520, holding that aviation is an ultra-hazardous activity, similar to the operation of automobiles in the early days of the horseless carriage, and requiring those who take part in it to observe the highest degree of care. The Uniform Aeronautic Act, adopted in time by twenty-three states, imposed absolute liability on the owner, as well as the operator or lessee, of every aircraft for any damage to person or property caused by its operation provided there was no contributory negligence on the part of him who was thus harmed. With the passage of time, however, this view came to be modified, and the trend of decisions established it to be the general rule that, properly handled by a competent pilot exercising reasonable care, an airplane is not an inherently dangerous instrument, so that in the absence of statute the ordinary rules of negligence control, and the owner (or operator) of an airship is only liable for injury inflicted upon another when such damage is caused by a defect in the plane or its negligent operation. By 1945, coincident with the opening of the postwar civilian aviation period, the number of states retaining the portions of the Uniform Aeronautic Act dealing with an owner’s liability had dropped to eighteen.’’ (See also 6 Am.Jur. (Rev.), §60, p. 36.)

California is in accord with this modern trend in the authorities. According to information received from the legislative counsel, the proposed uniform act containing the absolute liability provisions above quoted was adopted by the Legislature in 1923, 1925, and 1927, but in each instance was pocket vetoed by the governor. In 1929 the proposed uniform act was again introduced but did not pass. In its place the Legislature adopted, and the governor signed, the California Air Navigation Act. (Stats. 1929, ch. 850, p. 1874.) This statute was not based on the proposed uniform act and contained nothing pertinent on the question of lia

“It is further declared that flight in aircraft over the lands and waters of this State is lawful, unless at altitudes below those prescribed by federal authority, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. The landing of an aircraft on the lands or waters of another, without his consent, is unlawful except in the case of a forced landing. For damages caused by a forced landing, the owner or lessee of the aircraft or the operator thereof shall be liable, as provided by law.”

In 1953 the Legislature codified most of the statutes relating to aviation as part 1, division 9, of the Public Utilities Code. (Stats 1953, eh. 151, p. 927.) With minor rephrasing not here important, section 2, subdivision (d) of the 1947 act is now section 21403 of the Public Utilities Code. There is no other California statute referring to liability of bailors or owners of planes for forced landings.

This legislative history certainly supports the reasonable inference that the Legislature in 1947 deliberately refused to adopt the provisions of the proposed uniform act as to absolute liability and instead intended that the liability of owners, lessees or operators of planes should be governed by the normal rules applicable to bailments, respondeat superior, and negligence. Certainly the legislative history does not permit the inference that the Legislature intended to change the ordinary rules applicable to bailments, respondeat superior, and negligence.

On the same page the court continued as follows: “Generally speaking, there is nothing about airplanes which takes them out of the category of chattels which may be bailed to another for his use, or which another may be permitted by the owner to use, without imposing upon the owner liability for such bailee’s or permittee’s negligent operation. It is true that the'law formerly looked upon aviation as an ultrahazardous activity and the Uniform Aeronautics Act which was once adopted in many states did impose absolute liability on the owner as well as the operator or lessee of every aircraft for any damage to person or property caused by its operation unless there was contributory negligence on the part of the injured person. However, this view has come to be modified and now it is considered that properly handled

Of course, the Johnson case was dealing with damage caused by a student pilot at the airport and not for damages caused by a forced landing, but what is stated about the relationship between the owner and the student pilot is equally applicable to both situations. Appellant contends that what the court said about the provisions of the state act was dicta. Perhaps what the court said on this subject was dicta, but it was sound dicta. At any rate, it is dicta no longer, because we adopt it as part of this opinion.

California has adopted a policy of imposing strict liability on owners or bailors in connection with certain activities. But this state has limited such policy to those activities that are obviously and plainly ultrahazardous. Thus, drilling an oil well in a settled area that “blows off,” damaging adjoining properties, imposes liability regardless of the care used (Green v. General Petroleum Corp., 205 Cal. 328 [ 270 P. 952 , 60 A.L.R. 475 ]); or where hydrocyanic gas used to exterminate cockroaches escapes (Luthringer v. Moore, 31 Cal.2d 489 [ 190 P.2d 1 ]); or where the defendant farmer employed an independent contractor to spray his farm with gas containing arsenic and the fumes from such spraying killed plaintiff’s bees located on nearby land (Miles v.

Appellant makes a strong public policy argument to the effect that the risk of damage to third parties owning property over which airplanes are driven, at least by student pilots, should be borne by the owners of planes, who can and should insure themselves against such risk, and not by the innocent property owner. There may be some merit to these arguments as a matter of policy, but such arguments should be addressed to the Legislature and not to the courts. Once it has been determined that flying, even student flying, is not per se ultrahazardous, the question of liability must be determined by general principles of liability unless or until the Legislature, as it has done in the case of automobiles (Veh. Code, §402), provides to the contrary.

Included within the above-discussed contention of appellant is necessarily included a more limited argument, that is, that if the owner generally is not to be held strictly liable when he leases a plane to a regular pilot for the damage caused by the pilot, such liability should attach when the plane is rented for the use of a student pilot because, it is claimed, such a pilot is inexperienced and incompetent. We have already held that, it is a reasonable inference from the evidence in the instant case that White knew or should have known that Lenerville rented the plane for the purpose of rerenting it to a student pilot. We have also held that the bailor of a plane is not liable for the acts of a pilot to whom the plane is rerented for ground damage caused by the acts of the pilot. This is based on the normal rules applicable to bailments. Normally a bailor is not liable to third persons for the bailee’s acts causing damage, even negligent acts, in the use of the bailed article. (Gulzoni v. Tyler, 64 Cal. 334 [ 30 P. 981 ]; Baugh v. Rogers, 24 Cal.2d 200 [ 148 P.2d 633 , 152 A.L.R. 1043 ].) But to this rule there is an exception to the effect that a bailor is liable for the negligent acts of the bailee when he entrusts a vehicle to a person known by him to be incompetent or reckless. (Rocca v. Steinmetz. 61 Cal.App. 102 [ 214 P. 257 ]; Lane v. Bing, 202 Cal. 590 [ 262 P. 318 ].) Appellant contends that permitting a plane to be flown solo by a student pilot comes within such exception. In other words, that renting a plane to a competent flying instructor knowing that instructor intends to rent it to a

Appellant next seeks to impose liability on respondents on the theory that White knew that Galindo was an incompetent pilot. The evidence does support the inference that White knew that Galindo .was going to fly the plane, and knew who Galindo was. But there is no evidence that White knew anything about Galindo’s competency as a pilot. He knew or should have known that Galindo, for some undefined reason, had been turned down as a student by his partner, but that was before any instruction had started. Even if the incident of “buzzing” the house by Galindo be considered as some evidence of recklessness, the evidence is uncontradicted to the effect that White did not know of this incident until after the accident here involved. There is not one word in evidence to the effect that White knew that Galindo was reckless, incompetent or inexperienced.

Of course, White is in a different legal position from Lenerville. The latter was Galindo’s instructor. He knew of Galindo’s competency. If it be assumed that the evidence shows that Galindo was a reckless or incompetent pilot, a point on which we express no opinion, Lenerville would know that fact, and might be liable accordingly. But White’s only connection with the transaction is that he rented the plane to Lenerville, a competent flying instructor, knowing that Lenerville intended to rent it to Galindo. White was not a participant, in a legal sense, in the flight taken by Galindo. He was under no duty to investigate the qualifications of Galindo. He could and did leave that to Lenerville. He knew nothing about Galindo’s flying ability. That being so, liability cannot be imposed upon him under the exception under discussion.

The last point necessary to discuss is whether there is any evidence of the respondents’ negligence in renting to Lenerville an instrumentality known to them to be defective.

It is doubtless the law that a bailor or seller is generally liable to third persons for injuries if such chattel was defective at the time of the bailment, or sale, and the defect contributed to the injury. (Benton v. Sloss, 38 Cal.2d 399 [ 240 P.2d 575 ]; MacPherson v. Buick Motor Co., 217 N.Y. 382 [ 111 N.E. 1050 , Ann.Cas. 1916C 440, L.R.A. 1916F 696].)

The difficulty is that in the present case there is no evidence at all that the plane was defective at the time of the bailment. White testified that he believed the accident was caused by pilot failure. Galindo testified that the motor sputtered, and of his inability to get power out of the engine, but this does not raise an inference that the plane was defective when rented. It must be remembered that after the plane was rented to Lenerville, he and Galindo flew it dual for 30 or 40 minutes without experiencing any difficulty in keeping it in the air, even with the added weight of Lenerville. Obviously, the plane was mechanically sound at the time it was rented to Lenerville.

It should also be pointed out that, although appellant in his third cause of action charged respondents with negligent maintenance and repair of the plane, counsel for respondents, in the presence of counsel for appellant, told the court that it

The other points raised do not require discussion. The judgment of nonsuit in favor of White and Sautter, doing business as a partnership under the name Garden City Aero, is affirmed.

Bray, J., and Wood (Fred B.), J., concurred.

A petition for a rehearing was denied December 10, 1954, and appellant’s petition for a hearing by the Supreme Court was denied January 3, 1955. Carter, J., was of the opinion that the petition should be granted.