Herndon v. Gregory , 190 Ark. 702 ( 1935 )

The only question involved in this case is; Does the complaint state a cause of action?

As shown by the majority opinion, the complaint alleges that W. N. Gregory and W. N. Gregory, Jr., were negligent, and that their negligence caused the death of Glen R. Herndon. It alleges that Herndon was a passenger on the airplane that was owned and operated by the Gregorys, and that Herndon knew absolutely nothing about the management or control of an airplane. The complaint alleges that because of the negligence of the Gregorys said airplane fell, crashed to the ground, caught fire and burned, and that the said Herndon was thereby instantly killed. The complaint alleges that the entire control and management of the airplane was in the Gregorys, and, if they had not been negligent in respect to the management and control of said airplane, the same would not have fallen. It further alleges that W. N. Gregory, Jr., was known by his father to be unskilled in handling and piloting of such airplane, and that this fact was not known to Herndon, and yet Gregory, with full knowledge of such danger assured Herndon that it was safe to make the trip and urged him to do so.

It will be seen that there is a direct and positive allegation that W. N. Gregory, Jr., who was operating the airplane, was unskilled and that his father knew this fact, and that Herndon did not know it. I know of no other way that one could allege that the pilot was unskilled.

It is admitted in the majority opinion that a demurrer admits the truth of the allegations and all reasonable inferences which can be drawn therefrom. I think a reasonable inference to be drawn from the statements made in the complaint is that Gregory, Jr., was incompetent, known to be incompetent, and that because of his lack of skill, the airplane crashed. Of course, if W. N. Gregory knew that his son was unskilled, W. N. Gregory, Jr., himself was bound to know it.

The majority opinion calls attention to but one case on the question of demurrer admitting the truth of the allegations, and that is Life Casualty Ins. Co. of Tenn. v. Ford, 172 Ark. 1098, 292 S.W.2d 389, and states that the demurrer admits only those facts that are well pleaded.

In that case the court said: "In determining the question, all inferences fairly deducible from the express allegations of the complaint must be considered."

It is true that the appellant could not state the exact character of the negligence of W. N. Gregory, Jr., and W. N. Gregory, which caused the airplane to crash, but it was already stated in the complaint that Gregory, Jr., undertook to operate the airplane when he was not competent to do so. This was negligence, and I think that the allegation of incompetency on the part of Gregory was a sufficient statement of negligence, and, if there had been no other allegation in the complaint, it was not subject to demurrer.

In discussing the question of the sufficiency of a complaint when a general demurrer was filed, Chief Justice HART stated the correct rule as follows: "Our Code drew a marked line of distinction between an entire failure to state any cause of action or defense on one side, which is to be taken advantage of by demurrer, and the statement of a cause of action or defense in an insufficient, uncertain or imperfect manner, which is to be corrected by a motion to render the pleading more definite and certain by amendment. The court has uniformly held that, if the substantial facts which constitute a cause of action are stated in the complaint, or can be inferred by reasonable intendment by the matters which are set forth, although the allegations of these facts are imperfect or indefinite, such insufficiency should be met by a motion to make the averments more certain and cannot be corrected by demurrer. In short, if the facts stated, together with every reasonable inference therefrom, constitute a cause of action, then the demurrer should be overruled." Shoptaw v. Sewell, 185 Ark. 812, 49 S.W.2d 601. See also Boone County Bd. of Education v. Taylor, 185 Ark. 869,50 S.W.2d 241; Oliver v. Western Clay Drainage District,187 Ark. 539, 61 S.W.2d 442; Gantt v. Ark. P. L. Co.,189 Ark. 449, 74 S.W.2d 232; Brown v. Mo. Pac. Trans. Co., 189 Ark. 885, 75 S.W.2d 1015; Tyler v. Citizens' Bank, 184 Ark. 332, 42 S.W.2d 385.

But the majority opinion says that Ready v. Ozan Investment Co., ante p. 506, holds that the demurrer does not admit conclusions of law pleaded nor statement of facts not alleged to be the proximate cause of the injury. It is not a conclusion of law to state that the pilot was unskilled, and it is not necessary in any complaint to state that the allegation of negligence is the proximate cause of the injury. But when the statement of negligence contained in the complaint is considered together with all reasonable inferences to be drawn therefrom, the conclusion that the negligence alleged was the proximate cause of the injury cannot be escaped. And if it were necessary to state that the negligence was the proximate cause of the injury, this amendment certainly could have been made if a motion to make more definite and certain had been filed.

So far as I know, the rule announced by Chief Justice HART has been adhered to but this court until the decision in the present case. But, if there were nothing stated in the complaint except that the plane fell and the parties were injured, this, under the rule of res ipsa loquitur, would state a cause of action. It seems clear that the plane would not have crashed and fallen unless the person operating it had been guilty of some negligence.

The majority opinion concedes the rule to be that when a thing which causes injury is shown to be under the management of defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. But they state that the cases cited by appellant do not furnish a basis for the application of the maxim to the facts and circumstances of this case. The majority opinion says that a careful consideration of these cases reveals that in each of them the injury and consequent damages can be fastened upon human conduct in such a way that they could not have occurred in the ordinary course of human experience, except through the negligence of a person or persons having exclusive control of the instrumentalities by means of which such injury was caused. I do not agree to this statement. The rule of res ipsa loquitur is applied where no act of negligence is known, in cases where it is simply known that it would not have happened in the ordinary course of things but for negligence. The majority opinion then calls attention to a number of airplane cases, but said in each of those cases that the complaint alleged some act of negligence. I think the majority are mistaken in this.

One of the cases cited is Stall v. Curtiss Flying Service, U.S. Aviation Reports, 1930, p. 148. The court in that case said, in discussing res ipsa loquitur:

"More precisely described, it means that the facts of the occurrence warrant the inference of negligence, in that they compel such an inference, that they furnish circumstantial evidence of negligence, where direct evidence of it may be lacking. But it is evidence to be weighed — not necessarily to be accepted as sufficient. The circumstances call for an explanation or rebuttal, not necessarily that they require one, but they make a case sufficient to present it to a jury for determination."

The rule of res ipsa loquitur does not mean that the accident could not happen if there were no negligence, but what it does mean is that it is such as does not ordinarily happen without negligence on the part of those in charge of the instrumentalities, and the thing which occasioned the injury was in charge of the party sought to be charged.

Another of the cases cited by the majority is the case of Smith v. O'Donnell, 215 Cal. 714, 12 Pac. Rep.2d 933. That case arose out of a collision between two airplanes and the Supreme Court of California held that the doctrine of res ipsa loquitur applied.

Another case which the majority opinion says does not apply because there were special acts of negligence alleged is the case of McCusker v. Curtiss Wright Flying Service, 269 Ill. App. 502. In that case the Illinois court said: "Aviation is no longer an experiment. Great airplane lines are engaged in the transportation of passengers, mail and express. Their service covers the entire country, and it is a matter of common knowledge that such lines are held out to the public to be a safe means of transportation."

This case was decided in 1933, long after the book "Aeronautical Law" by Davis was published. Mr. Davis discussed the rule of res ipsa loquitur, and the risks mentioned would be a defense to an action for damages, but that fact does not in any way modify the rule of res ipsa loquitur. Res ipsa loquitur simply applies when an accident occurs which would not happen in the ordinary course of things without negligence. Some of the cases referred to discuss act of God in storms and fogs and other things that might cause an airplane to crash, but this is beside the question. The question here is: Does the complaint state a cause of action by merely stating that the plane fell because of the negligence of the pilot? These matters discussed by Davis and others would be matters of defense. The passenger might be guilty of contributory negligence, he might assume the risk, the accident might have been caused by the act of God, but the fact is that under the rule of res ipsa loquitur a complaint is not demurrable if it states that the plane fell because of the negligence of the pilot.

In Aeronautical Law by Davis, the author, in his paragraph on res ipsa loquitur, cites three cases, and not a one of them supports the text. The first case cited is National Biscuit Co. v. Wilson, 82 N.E. 916. In that case the plaintiff was injured by the fall of a freight elevator. It was not held that the complaint would be defective if it simply stated the accident, but it was held in the trial of the case that the happening of the accident in that case was not prima facie proof of negligence. But it must be remembered that this was in the trial of the case, and not as to the sufficiency of the complaint.

The next case cited by Davis is States v. Stern,91 N.Y.S. 821. That was also a suit for injuries caused by the fall of an elevator. It has no application to the question of the sufficiency of the complaint. As a matter of fact, the complaint was held sufficient, but in the trial of the case it was held that the fall of the elevator, under the circumstances and evidence in that case, was not prima facie evidence of negligence. Both these cases cited will be seen to be cases of employees suing the masters for injuries.

The other case cited by Davis is Hesse v. Rath-Mayer, 230 N.Y.S. 677. That was a question of the constitutionality of the law authorizing indebtedness for constructing and maintaining airports or landing fields, and the question was whether that was a city purpose. The court in discussing the case said: "We may take judicial notice of the fact that aviation is no longer an experiment. Large sums of money have been expended and are being expended by municipalities in providing suitable airports. Commercial and passenger lines have been established for the transportation of passengers, mail and express. Railroads have established schedules in connection with air transportation companies for the more rapid transportation of passengers and valuable express, and the government has availed itself of air transportation in carrying mails."

Why the author should cite either of the above cases as supporting his statements as to the law of res ipsa loquitur, I do not understand.

In the case of Seamen v. Curtiss Flying Service,231 A.D. 867, 247 N.Y.S. 251, another case cited by the majority, the court said: "The charge was likewise prejudicial in its failure to charge the doctrine of res ipsa loquitur, which had, under the facts appearing in this record, application to this case as a rule of evidence to aid the jury in passing upon the issue of liability."

In the case of Genero v. Ewing, 176 Wash. 78, 28 Pac. Rep.2d 116, the court said: "In our opinion res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance of the evidence is with the plaintiff."

The majority opinion says that the accident may have been caused by one or more of a number of reasons, over which the owner and operator of the airplane had no control, "and therefore if it be left in doubt what the cause of the accident was, or if it may as well be attributable to the act of God or unknown cause as to negligence, there is no such presumption."

I think the above statement from the majority opinion is not supported by the authorities. Of course, the accident may have been caused by any number of things, but the fact remains that when an accident happens to a machine in the absolute control of a person, and if it would not happen in the ordinary course of things, there is a presumption of negligence. There may be many causes, the act of God, and numbers of other reasons, but these are matters of defense. The majority then say that if the complaint had alleged some particular act of negligence or some unusual or out of the ordinary occurrence, from which negligence might be presumed, such as cranking the engine without blocks, attempting to land too low and unsafe a speed or at a dangerous or unsafe place, or had a collision occurred with another plane, or if he had negligently piloted his plane into a tree, then he would have alleged a fact over which human conduct had control, which might give rise to the application of res ipsa loquitur.

If he had alleged these things and alleged that they were negligently done, there would be no reason to invoke the doctrine of res ipsa loquitur, it would state a cause of action without regard to that doctrine. It is a matter of common knowledge that airplanes are flying all over the country, and it is said that there are fewer accidents than occur on railroads, and much fewer than automobile accidents. It is true that where the doctrine of res ipsa loquitur applies it does not mean necessarily that there is liability, but it means only that it states a cause of action which is not subject to demurrer.

It should be held in mind that the only question before the court is whether the complaint, with the facts stated and all the facts that may be inferred by reasonable intendment, states a cause of action under the rule above cited as announced by Chief Justice HART.

I think the demurrer should have been overruled on both grounds.

I am authorized to say that Chief Justice JOHNSON and Justice HUMPHREYS agree with me in this dissenting opinion.