In the court below Mrs. Kathleen I. Glose, hereafter called plaintiff, widow of C. William Glose, recovered a verdict against the Curtiss-Wright Flying Service, Incorporated, hereafter called defendant, for damages suffered by her through the death of her husband, alleged to have been brought about by defendant’s negligence. Thereupon defendant took this appeal.
The proofs tend to show that plaintiff’s husband on February 13, 1930, bought at Miami, Fla., from the Curtiss Flying Service, a Florida corporation, a trip ticket for an airplane journey from Miami to Tampa and return. After the disaster in question, the Curtiss-Wright Flying Service, a Maine corporation, bought from the Florida corporation its assets and assumed its liability in the present suit. It will hereafter be referred to as defendant. On the morning of February 14,1930, the deceased, at defendant’s airport in Miami, boarded its airplane, under charge of its pilot licensed for transport by the Department of Commerce. He was the only passenger, and the journey proceeded without incident until the plane was about twenty-two miles from Tampa, when, prob.ably due to fog, the pilot turned from continuing straight to Tampa and attempted to land at the plant of the United States Phosphoric Company. In Ms effort to do so, Ihe plane crashed, and the pilot and Ms passenger were both killed.
Setting aside minor questions, all of which have been duly considered, the ease resolves itself into throe underlying ones, viz.: First, was the decedent a charterer of the plane or a passenger; second, was there evidence from which a jury could infer negligence of the defendant; third, was the limit of the defendant’s liability for negligence in Ms ticket valid.
Turning to the question of charterer or passenger, we note that the contract between the parties is evidenced by the ticket issued by defendant. To onr mind, the terms thereof clearly evidence .the relation of passenger and carrier, and not that of a plane charterer. The paper in question calls itself a ticket: “This ticket is valid only on the date written above, weather permitting.” It refers to tho consideration as a fare: “Faro paid $364.50.” There is no mention of charter, chartering, or designation, or hiring of plane, or agreement that any particular plane he used. It speaks of the origin of the ticket, viz.: “Office of issue — Miami,” language apt where a ticket is sold; inapt where a charter-party is made. It speaks of the ticket issuing company as a passenger carrier, viz.: “The undersigned * * * is familiar with and agrees to the terms and conditions under which this company carries passengers, as printed on the back of this ticket,” thus evidencing the usual passenger-carrying operations of the company and its intent to create the same relation between it and the deceased as that existing in its usual passenger-carrying service. It contains a memorandum or evidence by which the ticket buyer can have the assurance and enjoyment of the right of passenger transport which he had paid for, viz.: “This ticket is valid only on the date written in above, weather permitting.” To close the contract, which contract was prepared and furnished in print by the defendant, it causes tho buyer thereof to sign in the relation of passenger, viz.: “C. William Glose,” over the printed words, “Passenger’s signature.” It requires Mm to give up the ticket: “This ticket to be surrendered upon entering the plane,” a practice common in passenger carrying service, and, on surrender, gives him a coupon showing payment for tho carrying service, viz.: “This identification coupon to he retained by passenger during flight.”.
As further evidencing the carrier-passenger relationsMp, we cite from the “Terms and *712 Conditions,” referred to. We simply note, but without comment, the following which are compatible with a passenger-carrying service, but not with a charter, viz.: “The Company reserves the right to cancel, at any time, the entire flight or any portion thereof, and shall be under no obligation with respect to such cancellation except to refund the part of the fare paid equal to the unused portion of this ticket.” In clause 4 we note: “Tickets not used for the time or date shown, for any reason (other than the cancellation of flight by the Company) will be considered as cancelled by the passenger and the fare paid will be retained by the Company if the space reserved remains unsold.” We note also clause 5: “It is agreed between the holder of this ticket and the Company, that the same is a personal license, revocable at the will of the Company, with or without cause, and the holder’s remedy in such event is limited to the repayment of the amount paid therefor and marked thereon”; and clause 6, which reads: “The holder agrees to observe the rules and regulations of the Company covering flights, and to obey the instructions of its agents and employees.”
Without citing other reasons, it is clear that the contract between the deceased and defendant was not a charter of a plane.
Turning to the next .question: Was there evidence from which the jury could infer negligence on defendant’s part ? We here disclaim our ability to discuss the question of the proper mode of operating a plane, but limit' ourselves to a reference to testimony we regard as bearing on that problem. That the plane was in good order, supplied with proper equipment, fuel, etc., is clear. The mishap, therefore, cannot be attributed to any equipment cause, but rather to an operative one. Was there evidence of lack of due conduct on the pilot’s.part? There was proof that at the time of the mishap another plane was making the same trip-, and its pilot could see defendant’s plane. Near the place of the accident, a fog arose, but the witness, veering somewhat to the right, continued to Tampa, and arrived there in safety. When last seen, defendant’s plane was continuing on the direct course to Tampa, and in so doing it would pass over the Phosphoric Company’s plant. There was testimony that it would have been good flying to have turned back if the fog closed in too heavily. Evidently, for some reason, defendant’s pilot decided to land at this plant. Such landing field was a small one, having as its surroundings a large river, a number of factories, a high administration building, railway switches, high-tension lines, poles, and surrounded on two sides by roads. The field was transversed in the shape of a T by ditches six feet wide and three deep. There was testimony given by plaintiff that, while a plane could land in it, it was probably too small to get out of, and a witness of defendant describes it as a field where “an experienced pilot, in 90 times out of 100 could have made a good landing.” The proof was that within fifty miles there were several approved fields the pilot could have used. There also was testimony tending to show that in approaching the landing defendant’s pilot did not keep the straight course of a thousand feet, but made several turns, and got well below the five hundred feet of altitude provided,where passengers are carried, by the regulations of the Commerce Department. Without entering into a discussion of the conflicting testimony as to banking and other operative questions, we are clear, in view of the testimony we have cited, that the court would have erred had it declined to submit the question of defendant’s negligence to the jury.
This brings us to the third question, as to whether, when the defendant’s negligence caused the death of the deceased, defendant is not answerable in money damages above the sum stipulated in the ticket. The latter provided “that in the event of the injury or death of the holder due to any cause for which the Company is legally liable, the Company’s liability is limited to $10,000.” Is this limit of liability by the defendant for its legal liability valid? Now the policy of law is settled that common carriers, in dealing with passengers, cannot compel them to so release their legal liability for their own negligence. Bank of Kentucky v. Adams Exp. Co.,