COYNER CROP DUSTERS, an Arizona corporation, and Elizabeth S. Coyner, Executrix of the Estate of Jack D. Coyner, Deceased, Appellants,
W. O. MARSH et al., Appellees.
Rehearing Granted April 3, 1962.
[90 Ariz. 161] Cox & Cox and Marion R. Smoker, and Ira Schneier, Phoenix, for appellants.
Snell & Wilmer and Donald R. Kunz, and James H. O'Connor, Phoenix, for appellees Marsh & Nicholson.
Lewis, Roca, Scoville & Beauchamp, Phoenix, for appellees Paradise Aviation Co. and Leonard Pemberton.
In a consolidated action for wrongful death and destruction of an airplane, plaintiffs appeal from a verdict and judgment for defendants. Parties will be designated as in the trial court. Plaintiffs are Elizabeth Coyner, wife of decedent, executrix, and Coyner Crop Dusters, a corporation. Defendants are W. O. Marsh et al., a partnership, Carl Nicholson, Paradise Airport, a corporation, and Leonard Pemberton.
The death and destruction was caused by a ground collision of two crop duster planes on the 'duster strip' at Paradise Airport situated northwest of Phoenix, Arizona. This strip is located at the west side of the airport and runs north and south. Stacked at the north end and westerly side of the duster strip were sacks of insecticide to be loaded in the insecticide planes (biplanes with open cockpits, the front cockpits of which have been converted to hoppers or bins for holding insecticide dust).
On July 14, 1952 the decedent, Jack D. Coyner, of the Coyner Crop Dusters Corporation had just completed a landing on the south end of the strip and was taxiing in a northerly direction toward the insecticide sacks when he collided with another insecticide plane owned by defendant Marsh Aviation Company and piloted by defendant Nicholson.
Nicholson, who was new to the Phoenix area, on July 14, 1952, flew Marsh's plane to the Paradise Airport and inquired of defendant Pemberton, the airport manager, the method of operating insecticide planes off of that airport. Accordingly Pemberton informed Nicholson that landings and take offs on the north-south runway (duster strip) were from north to south. At the same time Pemberton showed Nicholson the rules and regulations containing this information which were at that time displayed on the Administration Building lobby bulletin board.
Thereafter, Nicholson taxied to the insecticide where his plane was loaded by [90 Ariz. 162] two loader boys. The record indicates that Underwood, an employee of Coyner Corporation, flew into the duster strip from south to north on two occasions while Nicholson's plane was being loaded. Underwood testified that during these landings which were made in a manner contrary to the instructions received that day by Nicholson, he, Underwood, saw Nicholson standing out away from the Marsh plane with nothing obstructing his view of Underwood's landing. After obtaining his second load of insecticide dust, Underwood took off to the south. His plane blew up a cloud of dust 25 to 30 feet high; air movement of one to three miles per hour was from the southwest. Nicholson waited until he could see clearly the length of the runway that he would use on the take off, i. e., to the point where he estimated he would become airborne. He testified that there was dust beyond that point. The collision took place just short of the point where Nicholson indicated that he would have become air-borne. At the time of the collision Nicholson was traveling approximately 50 mph and Coyner was taxiing at the speed of 7 to 10 mph. Nicholson testified that he did not see Coyner until just a 'few moments' before the crash at which time the planes were about 25 to 30 feet apart.
Plaintiffs bring thirty-seven formal assignments of error many of which are subdivided with the result that a total of approximately seventy-five claimed errors are before this Court for review. To discuss and rule on these assignments seriatim would involve treatise-like proportions. Therefore, we will treat the errors in terms of the general propositions of law and major issues which they bring to focus.
Throughout this opinion we are governed by A.R.S. § 2-208. Aircraft collisions; law governing liabilities which reads as follows:
'The liability of the owner of one aircraft to the owner of another aircraft or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air shall be determined by the law applicable to torts on land.'
The first principal question involving the applicability of plaintiffs' first proposition of law reads as follows: When the undisputed evidence shows that a defendant is guilty of gross, willful, or wanton negligence, the trial court (a) shall instruct the jury as to the legal effect of such undisputed evidence and (b) shall not give instructions which exclude the legal effect of such negligence.
As an abstract statement of law, plaintiff's proposition is correct. Phen v. All American Bus Lines, 56 Ariz. 567, 110 P.2d 227. However, this abstract consideration does not apply to the instant case which is lacking in premises vital to its [90 Ariz. 163] operation. The rule requires undisputed evidence. Evidence may not be characterized as 'undisputed' if it is at variance with facts and circumstances or reasonable inferences to be drawn therefrom, or from other evidence. Burkhart v. Lasley, 182 Okl. 43, 75 P.2d 1124; Warren v. Griffing, 200 Okl. 108, 190 P.2d 1014. The evidence on which plaintiff rely falls short of such a test. For example, plaintiffs offer as an 'undisputed inference' the conclusion that because Underwood landed from south to north and saw Nicholson that Nicholson by the same token saw Underwood land in this manner. Whereas Nicholson's testimony was unequivocally to the contrary.
'Q. Did you see Mr. Underwood come in? A. No sir.
'Q. If you were told, or if Mr. Underwood stated that while you were loading that first load that he had landed or did land on the duster strip from south to north, would that refresh your memory as to how he got there? A. I seen nobody land in that manner.
'Q. You didn't see Mr. Underwood land at all as you recall? A. No sir.
'Q. Do you recall while you were at the loading area and out of your plane seeing Mr. Underwood land his plane on the duster strip? A. No sir.'
Plaintiffs argue that the 'to look is to see doctrine', Barry v. Southern Pacific Company, 64 Ariz. 116, 166 P.2d 825, should be applied in this case, and contend that the testimony elicited above to the effect that Nicholson did not see the Underwood plane land is negative evidence and is subject to the negative evidence rule. We must hold otherwise. The witness not only stated that he did not see Underwood land, but that he saw nobody land from south to north. He did not merely state that he 'didn't remember'; rather he answered that he did not 'recall' underwood's landings for the reason that he did not observe them.
Even assuming such evidence to be negative it is not such evidence as is subject to the so-called 'negative evidence rule.' This rule concerns itself with the establishment of the existence or nonexistence of a fact, e. g., whether a certain notice was posted or whether a certain bell was ringing. Jeune v. Del E. Webb Construction Co., 76 Ariz. 418, 265 P.2d 1076; Canion v. Southern Pacific Co., 52 Ariz. 245, 80 P.2d 397. Consequently the rule has no operation herein for we are not concerned here with the existence of the fact in question (i. e. whether Underwood did land from south to north), but with Nicholson's knowledge of that fact (i. e., whether he saw Underwood land). The fact in question, Nicholson's knowledge, was fully met by his repeated testimony that he had no such knowledge, and the jury was entitled to so find.
[90 Ariz. 164] The evidence is also disputed as to whether Nicholson once landed contrary to instructions received. Then too, plaintiffs lay stress on the 'undisputed fact' that Coyner landed on the 'unobscured' portion of the landing strip ignoring the testimony that dust was present on a portion of Coyner's landing run and that he taxied straight into the dust, beyond the point where apparently he could have removed his aircraft from the runway.
Nor is there any merit in plaintiff's assertion that there was a direct violation of General Flight Rules, Sec. 60.31(d), as set forth in plaintiffs' Requested Instruction
No. 19. The regulation in question reads:
'When outside of control zones and control areas, no person shall operate an aircraft in flight when the flight visability is less than one mile.'
As this regulation expressly states, it pertains to visability while in flight. Therefore the facts of record do nothing whatever to show a violation of the regulation. Visability was unlimited so far as the general atmosphere was concerned. The dust in question was located only over a portion of the landing strip.
No directed verdict was possible for it is universally recognized that before a verdict can be directed, the evidence must be such that reasonable minds could not differ upon the inferences to be drawn from the facts the propriety of a directed verdict being confined strictly to those cases where reasonable minds cannot so differ. Ong v. Pacific Finance Corp. of California, 70 Ariz. 426, 222 P.2d 801; Scott v. Scott, 75 Ariz. 116, 252 P.2d 571.
Also it appears that plaintiff's argument is based largely on the premise that Nicholson was guilty of gross, willful or wanton negligence, but that Coyner, on the other hand, was not so guilty. In effect, plaintiffs ask that the negligence of Nicholson and the contributory negligence of Coyner be assumed, but seek to overcome Coyner's contributory negligence by invoking the doctrine of Alabam Freight Lines v. Phoenix Bakery,64 Ariz. 101, 166 P.2d 816, that a finding of wanton negligence, etc., will overcome the bar of contributory negligence. In Butane Corp. v. Kirby, 66 Ariz. 272, 286, 187 P.2d 325, 334, this Court defined 'wanton negligence' as:
'* * * a reckless disregard of the rights of others or a reckless indifference to results. * * * the intentional doing of an act or failure to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other, but also involves[90 Ariz. 165] a high degree of probability that substantial harm will result to him.'
We feel that Nicholson's conduct cannot be said, as a matter of law, to be within the foregoing definition. Not only were the undisputed facts upon which plaintiffs rely subject to contrary inferences, but there was other evidence directly contrary to any inference that Nicholson's conduct was wanton. He specifically inquired of the direction in which he was to take off. He was informed of the regulation in that regard. He took off in the proper direction. He had no knowledge and was under no obligation or duty to anticipate that another airplane would land in the opposite direction, contrary to the regulations in force at the airport. He cleared the field to make certain that his plane would not interfere with any properly landing aircraft. Clearly, if Nicholson's conduct has any of the ingredients of 'wantonness', it was solely a question for the jury and not the object of summary instruction by the trial court.
If Nicholson was guilty of taking off into the dust, it is likewise true that Coyner was guilty of landing in the wrong direction and subsequently taxiing into the dust upon completion of the improper landing. Therefore if the jury could have found one guilty of wanton negligence it could also have found the other to be similarly guilty and the doctrine of Alabam Freight Lines, supra, is thus rendered inapplicable. Most especially is this true in light of the fact that Nicholson had been advised that he was taking off in accordance with fixed regulations which entitled him to assume that he would encounter no oncoming traffic, while Coyner, on the other hand, was charged on the record with knowledge that a plane might be taking off in his taxiing path at any time. The record shows that he had been previously reprimanded by the witness Pemberton, airport manager, for landing in the wrong direction.
Plaintiffs complaint of thirteen separate instructions which they allege were erroneously refused by the trial court. All of
these in effect would have instructed the jury to return a directed verdict for the plaintiff. We will not discuss each of these instructions herein for we believe that the substance of each has largely been met in the foregoing. However, on the whole case, this proposition is governed by the rule of appellant review laid down by this Court in Scott v. Scott, supra, 252 P.2d at page 574:
'* * * Under these rules of law, in order for this court to upset the jury's verdict, it would be necessary to rule, not only that the jury and court below came to an unreasonable conclusion, but also that no reasonable person could have agreed with that conclusion.'
[90 Ariz. 166] Plaintiffs' proposition of law I(B) is also predicated on the supposition that all of the material evidence bearing upon the negligence of the actors was undisputed. We have previously discussed this aspect of the evidence. However, plaintiffs' argument under this proposition is not based on undisputed evidence but is based on conflicting evidence. The proposition, in effect, is good law and should be read, if there is any evidence upon which to predicate a finding of wanton negligence, the Court should not exclude the jury from so finding. With this we agree. However, we find that the trial court did not exclude the jury from so finding. The court instructed the jury that in judging the rights and obligations of the plaintiffs they should consider the manner in which Coyner conducted himself. The trial court also instructed the jury that in judging the rights and obligations on the part of each member of the group of defendants composed of Nicholson, Mr. Marsh, Marsh Aviation Co., et al., that the jury should consider the manner in which Nicholson conducted himself for his actions and conduct determined the rights of himself and at the same time each and all of the parties. The court specifically advised the jury that the issue of wanton negligence was being submitted as to Coyner and Nicholson, and thereupon took great pains to instruct the jury in the precise way in which such rule would operate, if such wanton negligence was found, including express instruction that a finding of wanton negligence would overcome the bar of contributory negligence.
Plaintiffs' argument seems to be that because the court gave certain instructions which stated or implied that contributory negligence was a defense, but did not, at the same time, mention the effect thereon of a finding of wanton negligence, that these instructions therefore amount to the exclusion of wanton negligence.
To require the trial court to cover the 'whole law' in every instruction would so burden the instructions with qualifications and subqualifications as to make them far less intelligible than they generally are. The prime function of the jury instruction is to advise the jury of the applicable law in terms and form which the jury can understand. This the trial court did. Not only did the court instruct as to wanton negligence, but earlier in its instruction, the court admonished the jury not to 'single out' any particular instruction or part thereof, but to consider the instructions as a whole. The court's instructions qualifying contributory negligence if wanton negligence was found immediately followed the court's general instruction as to contributory negligence, so that the jury might immediately associate such qualification with the instructions on contributory negligence.
[90 Ariz. 167] This Court has declared on numerous occasions that jury instructions will not be considered 'piece-meal' on appeal and that they must be considered as a whole, the test being whether, upon the whole charge, the jury will gather the proper rules to be applied in arriving at a correct decision. Daly v. Williams, 78 Ariz. 382, 280 P.2d 701; Musgrave v. Githens, 80 Ariz. 188, 294 P.2d 674. That test was satisfied herein. See also Tenny v. Enkeball, 62 Ariz. 416, 158 P.2d 519.
Plaintiffs contend that the court erred in refusing to ...