Middleton v. Cox

HENRIOD, Justice:

Appeal from a summary judgment dismissing plaintiff’s complaint. Affirmed, with costs to defendant.

The deceased Cox was a Civil Air Patrol pilot operating under the provisions of 10 U.S.C. §§ 8012, 9441,¹ when called upon to perform services denominated in the act. He was sought out to conduct an aerial search on the occasion of a lost plane in the area. In conducting such search, regulations required that an observer accompany the flight. The deceased Middleton, whose estate is represented by the plaintiff, volunteered his services as observer. Cox did not seek him out, select him, or authorize him to perform the mission. All such matters were under the control, authority and supervision of one Whitehead, Commander of the C.A.P. The whole setup was something akin to a Sub-for-Santa organization, all of the participants volunteering and contributing their services to be executed under the direction of a specific authority. There was no “employment” in the common connotation of that term. Certainly no union dues or profit motive is a factor in C.A.P.

The plane flown by Cox and one by Whitehead, rendezvoused at Bryce Canyon airstrip after an unsuccessful search. The battery in the Cox plane was and had been dead, a fact everyone knew. Middleton nonetheless turned down an auto ride home and decided to fly back with Cox when the latter said the plane was airworthy without the battery. The plane successfully took off. On the flight back, for some unknown reason Cox attempted to land in a meadow area. The under belly of the aircraft happened to strike a projecting volcanic rock, rupturing the gas tank, causing a fire that consumed the plane and its occupants.

The facts abstracted above seem to be conceded in the Statements of Facts incorporated in both of the briefs of the respective parties. They seem also to point out no salient circumstances pin pointing the efficient cause of the accident, or reflecting any liability free from pure conjecture. Significantly the facts mentioned were adduced by an inordinately lengthy and all-inclusive discovery process largely through interrogatories put and answered by both sides. Counsel for plaintiff conceded at pretrial that there were no more facts to develop. Hence defendant’s motion for summary judgment was well taken at that juncture for what it was worth.

On appeal, plaintiff urges that the trial court erred (1) in holding that Middleton was a guest and not a “paying” passenger under our areoplane guest statute; ² (2) in holding Cox was not negligent under the facts; and (3) in holding that plaintiff’s exclusive remedy, if one existed, was under the Workmen’s Compensation Act (Title 35-1-60, U.C.A.1953).

As to (3) : We are of the opinion that there was in no sense an employer-employee relationship under the facts of this case between Cox and Middleton. The matter was not raised by plaintiff but by defendant. We express no opinion as to rights or obligations other than those of the litigants here.

As to (1) : We are convinced, after examining the record, that Middleton was not a “paying” passenger,³ but was a guest under the act. This being so, plaintiff had the onus of showing that Cox was intoxicated or guilty of wilful misconduct and that either or both caused the death. There is nothing in the record reflecting any consumption of intoxicants whatever. The record is equally devoid of any apparent or evidentiary matter pointing to any wilful misconduct indulged by Cox on this, essentially a mercy mission, where he, as well as his passenger, would be the victim of any action on his part included within the common connotation of the term, involving wilful disregard for the safety of others and himself.

As to (2) : The claim that Cox was negligent under the facts: The trial court granted summary judgment on this issue, but permitted plaintiff to amend the complaint. The amendment only added that negligence was claimed and shown under the doctrine of res ipsa loquitur. The motion for summary judgment was renewed and again granted.

• Since it appears and we hold that Middleton was a nonpaying guest, plaintiff must show wilful misconduct to recover. The doctrine of res ipsa loquitur has to do with lack of ordinary care. Wilful misconduct cannot be shown under the doctrine, because a necessary ingredient for application of the rule is lack of ordinary care, not wilful misconduct.⁴

An interesting discussion of the doctrine and its application to air incidents is found in Cohn v. United Air Lines Transport Corp., 17 F.Supp. 865 (D.C.Wyo.1937).

The doctrine being inapplicable to the instant case, evidence must supplant allegation or conjecture to justify compensability. The evidence adduced by the interrogatories does not show carelessness on. the part of Cox in the maintenance and/or operation of the plane. Contrariwise, one is impressed with the answers as showing-the opposite. The only significant urgence by plaintiff that Cox may have been derelict, is his flying the plane with a dead battery, or flying too low for safety. Both contentions are speculative since under the facts of this case there is no evidence of any causal connection between the dead battery and the accident, and none to the effect that Cox was flying too low, or that this caused the accident. The answers to the questions indicate that the battery, although inoperative, did not prevent flying the search, landing at Bryce, or taking off therefrom,⁵ and they also indicate that Cox was flying an approved, usual and conventional route home. There was evidence to the effect that the causa causans of the accident was a protruding, unobservable rock, in what appeared to be a meadow area. Beyond what has been said, there are hundreds of ways the aircraft may have been the subject of a forced landing, where the accident may have been completely divorced from any element of personal negligence, viewed in the legal atmosphere controlling the term.

We believe and hold that there was no genuine issue of fact to be decided, and that what the trial court had before it impelled the conclusion of nonliability as a matter of law.

CALLISTER and TUCKETT, JJ., concur.

1 . Providing for air search and ground rescue, emergency and disaster relief, civil defense_ assistance t funded only .to reimburse members of C.A.P. for fuel, corn-munications expenses, etc., but not for depreciation of private equipment, damage indemnity, personal services of members, etc.

2 . Title 2-1-33, Utah Code Annotated 1953, (Chap. 2, L.Utah 1953; 1969 Pocket Supp., Vol. 1, p. 102), which provides that one not paying for the ride who rides with an aeroplane pilot, cannot recover damages unless the pilot is guilty of intoxication or “wilful misconduct.” (This statute differs from its counterpart, Title 41-9-1, U.C.A.1953, the auto guest statute, by using “payment” for the ride rather than “compensation.”)

3 . Plaintiff’s contention that Cox was “compensated” because of Middleton’s presence as observer, tenuously belies the provisions of the C.A.P. Act, and the realities of life. Whittemore v. Lockheed Aircraft Corp., 51 Cal.App.2d 605, 125 P.2d 531 (1942), an intermediate appeals case with no top authority, is inapropos, simply indulging in a definitional discussion as to what might or might not he a quid pro quo. Smith v. Franklin, 14 Utah 2d 16, 376 P.2d 541 (1962), says that if the main inducement for the ride is payment, the guest statute does not apply. We do not quarrel with that conclusion, but there is no similarity here.

4 . See Prosser, Torts, Sec. 42 under Res Ipsa Loquitur, where it is observed that “If a guest statute requires wilful * * * misconduct, res ipsa loquitur furnishes no proof of it”; and Phillips v. Noble, 50 Cal.2d 163, 323 P.2d 385 (1958), where it is said: “Obviously res ipsa loquitur, which permits the drawing of an inference that ordinary care was not used, cannot serve as a means of establishing intoxication or wilful misconduct.”

5 . Defendant observed in its brief that the battery is not necessary to sustain flight because tbe magneto performs that function.