Johnson v. Northwest Orient ( 1982 )

No. 81-401
IN THE SUPREME COURT OF THE STATE OF MONTAN
1982
TERRY G. JOHNSON,
Plaintiff and Appellant,
NORTHWEST ORIENT AIRLINES and
HAROLD LEINES, Station Manager,
Defendant and Respondent
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable James Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
Terry G. Johnson, Pro Se, Lolo, Montana
For Respondent:
Boone, Karlberg and Haddon, Missoula, Montana
Submitted on briefs: February 11, 1982
Decided: #(( 8'8
Filed: MAR 2 5 1982
V
Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o r l delivered the Opinion of
the Court.
Plaintiff Terry Johnson sued Northwest Orient
Airlines (Northwest) for canceling a Billings-Missoula
flight. The F o u r t h J u d i c i a l District, i n and f o r M i s s o u l a
County, entered summary judgment for Northwest. The
p l a i n t i f f appeals.
On December 12, 1979, plaintiff bought a round trip
Missoula-Billings ticket from N o r t h w e s t . On December 22,
1979, plaintiff's sckieduled return date, Northwest issued
the plaintiff a boarding pass f o r the Billings-Great Falls-
Iviissoula-Spokane £1 i g h t . But, weather conditions at take-
off time, 9:50 a.m., prevented Northwest from landing in
Missoula. T h e r e f o r e , a l l M i s s o u l a p a s s e n g e r s were p l a c e d o n
a Billings-Helena flight and were then taken by bus from
Helena to Missoula. Plaintiff was offered a check for
$29.70, t h e s a v i n g s on h i s a l t e r n a t i v e t r a n s p o r t a t i o n . The
c h e c k was r e t u r n e d s e v e r a l m o n t h s l a t e r , a f t e r t h i s s u i t was
initiated.
Plaintiff a l l e g e s he arrived horne eight hours late
because of the flight cancellation. He e a r n e d $ 1 5 3 , 0 0 0 in
1 9 7 9 , w o r k i n g 3,ld00 h o u r s a t $ 5 0 a n h o u r . As an insurance
agent, he claims h i s weekends are particularly lucrative,
e a r n i n g him more t h a n $100 a n h o u r f o r t e n h o u r s a d a y . He
is s e e k i n g $1,000 damages f o r t h e l o s s o f a ten-hour day and
$122 r e f u n d f o r h i s p l a n e f a r e .
This appeal revolves around whether the District
Court erred in granting Northwest's motion for summary
j udgment . The District Court determined there were no
material i s s u e s of f a c t and t h a t N o r t h w e s t was e n t i t l e d t o
judgment a s a matter of law. See, Rule 56(c), M.R.Civ.P.
The D i s t r i c t C o u r t ' s f i n d i n g s o f f a c t w i l l b e u p h e l d u n l e s s
c l e a r l y erroneous. R u l e 52 ( a ) , M.R.Civ.P.
S i x i s s u e s a r e r a i s e d on a p p e a l .
1. Did weather conditions i n Missoula prevent the
p l a n e from l a n d i n g ? Northwest needs t h r e e m i l e s of v i s i b i -
l i t y and a 1300-foot ceiling to land i n Missoula. Common
sense dictates that only the weather conditions existing
prior t o take-off, 9:50 a.m., are pertinent. In t h i s case,
plaintiff's own exhibit from the National Weather Service
s h o w s t h e r e was o n l y o n e a n d o n e - h a l f miles o f v i s i b i l i t y a t
9: 52 a.m. Therefore, weather clearly prevented Northwest
from l a n d i n g i n M i s s o u l a .
2. Did N o r t h w e s t h a v e a legal right to cancel the
Billings-Missoula flight in light of the poor weather?
Civil Aeronautics Board regulations govern rights and
l i a b i l i t i e s between a i r l i n e s and p a s s e n g e r s and c o v e r this
issue. Tishman & L i p p , Inc. v. Delta A i r Lines (2nd C i r .
1 9 6 9 ) , 4 1 3 F.2d 1401. Those r e g u l a t i o n s a u t h o r i z e a i r l i n e s
t o cancel f l i g h t s when n e c e s s a r y . C i v i l A e r o n a u t i c s Board
Tariff, 240 and 2616. Mack v . Eastern A i r Lines (D. Ivlass.
1 9 4 9 ) , 87 F.Supp. 113; see a l s o , J o n e s v . Northwest A i r l i n e s
(Wash. 1945), 157 P.2d 728. Therefore, Northwest acted
within its legal authority in canceling the Billings-
Missoula f l i g h t .
3. Did N o r t h w e s t h a v e a r i g h t t o r e f u s e p l a i n t i f f a
s e a t a f t e r a b o a r d i n g p a s s had been i s s u e d ? A s noted above,
the flight was properly canceled due to adverse weather.
Civil Aeronautics Board Tariff 248(H) does not require
advance n o t i c e t o be g i v e n o f f l i g h t c a n c e l l a t i o n s . There-
fore, Northwest properly excluded plaintiff, even after a
b o a r d i n g p a s s had been i s s u e d .
Issues four, five and six are irrelevant if no
l i a b i l i t y is e s t a b l i s h e d .
I n r e v i e w i n g t h e f i r s t t h r e e i s s u e s , we b e l i e v e t h e r e
are no material issues of fact and that Northwest is
e n t i t l e d t o judgment a s a m a t t e r o f law. T h e r e f o r e , summary
judgment was properly yranted. Consequently, w e need n o t
address the l a s t three issues.
The D i s t r i c t C o u r t j u d g m e n t i s a f f i r m e d .
W concur:
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