Hall v. Osell

MUSSELL, J.

Plaintiff operated a “for hire’’ flying service based at the Kern County airport near Bakersfield. During the early morning of June 19, 1947, the defendant hired

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one of plaintiff’s aircraft for the purpose of flying that day from Bakersfield to Santa Barbara, via Santa Maria, and return to Bakersfield.

The defendant, with his wife and daughter as passengers, “took off” from the Kern County airport for Santa Maria at approximately 11:30 a. m. and proceeded directly to the vicinity of Santa Maria, where, while the defendant was preparing to land, he flew the aircraft into a fog or cloud bank, and in attempting to make a turn, crashed it into a hillside approximately 10 miles southwesterly from Santa Maria. The aircraft was destroyed by the crash and plaintiff filed the instant action for damages sustained by reason of its destruction.

The cause was tried by the court without a jury and a judgment rendered for the defendant.

Plaintiff appeals, contending that the evidence is insufficient to support the findings and judgment.

The complaint sets forth four causes of action based on the liability of defendant as a bailee. The answer consists of a general denial and three special defenses in which contributory negligence and “unavoidable accident” are alleged.

Facts

Defendant, who held a private pilot’s license to fly a plane by “contact” rules only, arrived at the airport with his wife and daughter at about 7 o ’clock a. m. on the day of the accident. He inquired as to the weather conditions and was told at the local United States weather bureau that the weather conditions over Santa Maria “would not allow flying.” While waiting for a further weather report, defendant took his daughter and her girl friend up in the. airplane for a 10-minute local flight in the vicinity of the airport. During this flight, the aircraft performed satisfactorily and defendant had no difficulty with it. At about 11:30 o’clock a. m., he obtained a clearance from the weather bureau for his flight and was informed that there was a broken cluster of clouds over Santa Maria, with a ceiling of about 1,300 feet. Defendant was then instructed by Mr. Webber, plaintiff’s agent in charge of the airplane, that if the ceiling at Santa Maria was 1,300 feet or above, defendant should then proceed to the ocean, underneath the overcast, and thence follow the coast line to Santa Barbara; or, if the ceiling was less than 1,300 feet at Santa Maria, to land there and get further weather data and instructions before proceeding to Santa