Whittemore v. Lockheed Aircraft Corp.

At 1:40 p. m. on the sixteenth day of May, 1938, an airplane, which had just been completed

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 anyone 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. (California Air Navigation Act, § 11%, Stats. 1929, p. 1874, as amended; Deering’s 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 con-

It was error to give the quoted instruction for several reasons. In the first place, had the evidence permitted of but one conclusion, that being that Whittemore was a passenger, that is, a paying guest, there would have been no need to instruct the jury further than to advise it that the measure of defendant’s duty was that of ordinary care, for the only importance of Whittemore’s status was to determine the degree of care required of the defendant. But the evidence permitted of more than one conclusion; the question was one that should have been left to the jury as one of fact. We do not 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 the evidence would justify that contrary conclusion.

It should be borne in mind, as we now consider the 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%, California Air Navigation Act, which appears in full in our previous opinion). This was stated to be the rule on the former appeal (p. 609 of 51 Cal.App.2d and p. 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 , 240, 241 [ 143 P.2d 704 , 705]; Jenkins v. National Paint & Varnish Co. (1936), 17 Cal.App.2d 161 , 163, 164 [ 61 P.2d 780 , 781].) If, therefore, it appears that the jury could, with reason, have concluded that it was not persuaded by the evidence either that compensation had been given

Insofar as the evidence at the second trial, on this question of the compensation for Whittemore’s ride, was a repetition of that given at the first trial and set out on the former appeal, it need not again be detailed by us. In its essence, the evidence at the two trials was the same. The plaintiff points out that at the second trial no one testified, as had been stated at the first, that Whittemore had paid no compensation for the ride. But neither did any witness testify that he had, and silence on an issue as to which the plaintiff has the burden does not help her cause. It is true that at the second trial the history of the previous business dealings between Whittemore’s company and the defendant was gone into in more detail. It now is known that the defendant had been engaged since 1934 in making planes for Whittemore’s company; the defendant considered it a valued customer; it hoped to continue to do business with it. Defendant’s president was quite plainly testifying in part from hearsay and not altogether from his own knowledge, but he testified that some, if not all, of the planes sold to the Northwest Air Lines were delivered at Las Vegas; that in most cases, but not always, Whittemore was the representative of the purchasing company who came west to take delivery; and that when he was the representative, he would usually come to the plant at Burbank and fly to Las Vegas on the delivery flight. Whittemore was a frequent visitor at the defendant’s plant. Another officer of the company testified much to the same effect. There seems no reason to doubt that, as on most of the previous occasions, so on the last, the agreement of the parties was that the plane was to be delivered to the company which Whittemore represented at Las Vegas, even though the written contract was silent on the subject. As was developed on the former appeal, the evidence before the jury warranted several inferences that met the stated requirement that

But this was not enough to justify taking the issue from the jury. The evidence did not lead inescapably to the conclusion that the defendant received a benefit of a tangible nature as a consideration for giving Whittemore a ride. Not to recognize this as true is to take the untenable position that a person may not give a ride to one, with whom he has or hopes to do business, except as a paying guest. The jury might well have reasoned that there were too many faint or absent lines in the picture of “compensation” which plaintiff had endeavored to draw for them. Whittemore, it appeared, was in the office of the defendant’s president at 10 or 11 o’clock of the morning of May 16th, but no business was transacted between them. This was understandable, for with the delivery of the plane that was then being readied for flight, the last existing contract between the defendant and Whittemore’s concern would be completed. As plaintiff stated in her brief: “every particle of evidence on the issue of whether Whittemore was a passenger or a guest on the plane was adduced through the officers of Lockheed, examined under Section 2055, C. C. P.” The officers testified that they understood that Whittemore was going to be one of those going with the plane to Las Vegas, there to receive it on behalf of the purchaser, but there was no word or writing that revealed what was in Whittemore’s mind to cause him to board the plane at Burbank. That is to say, no witness reported any correspondence or conversation with Whittemore which shed light upon any arrangement he had made with the defendant whereby he gained permission to accompany the plane, or which explained why it was that he came to Burbank, instead of meeting the plane at Las Vegas. The

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 added 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 trial judge advised counsel before argument that he was going to take the question from the jury, it is not to be assumed that it was dis

Some hours later the jury again appeared in the courtroom, announced that they had stood seven to five on every

It cannot be said with any certainty that the confusion plainly caused in the jurors’ thinking by the instruction that Whittemore was in law a passenger was ended by the belated instruction telling them that whether or not he was actually flying the plane was a question for them to answer. But if defendant’s instruction No. X did have the effect of curing their confusion on the one point, plaintiff’s accompanying instruction No. XX robbed the cure of its virtue, for it erroneously limited the significance of Whittemore’s flying of the plane so as to deprive defendant of much of the value of its plea of contributory negligence.

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 have

This evidence gave the jury a basis for concluding that Whittemore was at the controls when the plane took off on its fatal flight, and was still flying the plane when it crashed,

It >is no answer to our observations to say: But the jurors returned a verdict in plaintiff’s favor. It is more than likely that this result was the direct consequence of the last instruction they received, plaintiff’s instruction No. XX. It was error to give.this instruction. Defendant contends that it was “confusing, meaningless, and inapplicable to the facts of the case. ”, We think that this is an unduly harsh criticism. The instruction has a meaning which is in harmony with statements plaintiff has made at one time or another. The antithesis in the instruction is not new. In plaintiff’s brief we find: ‘ ‘ On this appeal whether Whittemore flew the plane or whether Willey flew it is entirely immaterial, for the record discloses no evidence whatsoever of negligence in the mechanical act of flying the plane.” Where, then, is there any negligence on anybody’s part? Plaintiff give an answer to this question in two places: In her brief with emphasis she says: “The proximate cause of the accident here involved was the negligence of Lockheed in the general management, direction and control of the delivery flight.” This theory of de

The effect of plaintiff’s instruction No. XX, therefore, was to advise the jurors that if they were to find Whittemore guilty of contributory negligence at all it must be in the operation of the plane as distinguished from the negligence charged against the defendant. In other words, any negligent conduct, on his part, was limited to the manner in which he operated the plane, even though the jury should believe that he decided to operate it under conditions which made its operation at all a venture which a careful person would not undertake. Whittemore and Willey, the jurors could have said, had substantially equal knowledge that they ran a grave risk making a contact flight to Las Vegas, no matter how carefully the plane was operated. They could have concluded that Willey, who was the defendant itself, the evidence plainly revealed, so far as the responsibility for the flight was concerned, was guilty of negligence in undertaking it, as distinguished from negligence in the operation of the plane. How then can it be stated that Whittemore’s negligence, if any, was limited to the operation of the plane? He participated, acquiesced, in the decision and subsequent action which constituted, the jury might well have said, the only negligence of which Willey and so the defendant were guilty.

We do not wish to be understood as saying that the plaintiff now contends that Whittemore’s only possible negligence con

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. Some evidence of this nature which was offered by the defendant was 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. This evidence should have been received. 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. A jury could with

Eespecting the ruling we have been discussing, plaintiff states: “evidence of custom was in fact admitted, and prejudicial error cannot be assigned because the trial court prevented the same witness from repeating what he had already said.” The witness referred to was Sanders. Sanders had testified that a pilot taking a plane off an airport has to pay particular attention to certain instruments, and that these instruments in the defendant’s plane, whose panel was “more or less standard,” were located on the left side of the instrument panel, but were plainly visible to both pilots. Then, in response to a question asking for the function of a pilot in taking an airplane from the ground, Sanders began: “Well, the pilot of the airplane usually gets in”-when he was interrupted and asked to state to whom he referred as the pilot. He answered: “The captain who sits on the left-hand side of the ship.” He related then the several steps whereby a ship was started. “The pilot who is commonly called pilot is the captain. He starts his engine, takes his place on the left-hand side, clears the ship by sight with the mechanics outside. As a rule, they wave him off that everything is okey. He gets permission from the control tower, taxies out to the end of the runway.” Other details followed, ending in the plane’s being in actual flight. Then, over plaintiff’s objections, Sanders testified that there was, throughout the airplane industry and among pilots of planes, a cus

It cannot be fairly said, then, that the ruling complained of simply prevented Sanders from repeating what he had already said. It prevented Sanders from testifying that the idea that the one who sits in the left seat is the captain, was not just his idea nor a Lockheed procedure, but that it was a' widely recognized trade custom. Moreover, it prevented the defendant from having the benefit of the testimony of four witnesses in addition to that of Sanders, who was one of its own employees. This is seen to be of importance when we note that the plaintiff put on a witness in rebuttal who testified that about 80 per cent of the time he flew a ship from the right-hand seat. The evidence offered by the defendant was relevant (see Moody v. Peirano (1906), 4 Cal.App. 411 , 418 and 420 [ 88 P. 380 ]); it was prejudicial error not to receive it.

Evidence of a kindred nature was also offered and rejected. Defendant attempted to prove, first by proper questions and then by an offer of proof, that on four occasions, to wit, September 12, 1937, September 25, 1937, October 29, 1937, and December 28, 1937, Whittemore came to Burbank, when a plane was ready for delivery, and in each instance took the left-hand seat and flew the plane off the field and the entire way to Las Vegas, and that these were the only occasions, other than the one of May 16, 1938, when Whittemore came to Burbank in connection with a delivery flight. The plaintiff’s objections to the questions and offer of proof were sustained. It is our opinion that the evidence should have been received.

Although defendant’s proof of the existence of the custom, that the pilot who was to fly the plane sat in the left-hand seat, was not so strong but that prejudice was suffered in the rulings which prevented the defendant from strengthening it, it was sufficiently strong to enable the jury to conclude that

The evidence should have been received for another reason. There were several eyewitnesses who testified that Whittemore took the left-hand seat, and one that, at the takeoff, he did the various things a pilot does who is operating a plane at the initial stages of its flight. As to these two matters, then, the evidence that Whittemore had always occupied the left hand seat and flown the plane off the ground, whenever he accompanied it, could not serve as a basis for an inference that on the fifth occasion he had done so. Whatever persuasiveness we may find in the statements expressed by the various text writers, from whose works quotations appear in Wallis v. Southern Pacific Co. (1921), 184 Cal. 662 , 666, 667 [ 195 P. 408 , 15 A.L.R. 117 ], we find the rule to be too settled in this state for us to debate it, that where there are eyewitnesses to an incident, evidence of habit respecting an act involved in the incident may not be received. (Starr v. Los Angeles Ry. Corp. (1921), 187 Cal. 270 [ 201 P. 599 ]; People v. Crossan (1927), 87 Cal.App. 5 , 15 [ 261 P. 531 ]; Blackford v. Beckworth (1928), 90 Cal.App. 37 , 40 [ 265 P. 514 ]; Lindsey v. Pacific Electric Ry. Co. (1931), 111 Cal. App. 482 [ 296 P. 131 ]; White v. Shepardson (1931), 116 Cal. App. 716 , 719 [ 3 P.2d 346 ]; Collins v. Hodgson (1935), 5 Cal.App.2d 366 , 373 [ 42 P.2d 700 ] ; and see Boone v. Bank of America (1934), 220 Cal. 93 , 95 [ 29 P.2d 409 ]. See, also, Shearer v. Pacific Gas & Electric Co. (1941), 43 Cal.App.2d 306 [ 110 P.2d 690 ], and Kelley v. San Francisco (1943), 58 Cal.App.2d 872 [ 137 P.2d 719 ], which, ignoring all but one of the cases which we find decisive, reach a conclusion out of harmony with them.) However, with respect to the question of who was operating the plane up Mint Canyon at that last moment when it could have been turned back from entering the enveloping fog bank, there was no eyewitness to testify which of the pilots was operating the plane. With the proof before the jury that Whittemore had, less than half an hour earlier, flown the plane off the ground, the fact that on every previous trip when he had done that, he had flown it all the way to Las Vegas, would tend to support the conclusion that

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.

Desmond, P. J., and Shinn, J., concurred.

Respondents’ petition for a hearing by the Supreme Court was denied November 9, 1944. Curtis, J., and Carter, J., voted for a hearing.