650 S.W.2d 312 | Mo. Ct. App. | 1983
In their action for the wrongful death of Rick Kastner, appellants, Noreen Kastner, his surviving spouse, and his surviving minor children, Frederick, Brian, David and Evan Kastner, had a jury verdict for $1,000,000 against Beech Aircraft Corporation. The action was brought under the theory of strict liability — a failure to warn of the danger of a Beech Baron aircraft to go into a flat spin, the theory being submitted in Instruction No. 8, which is:
“Your verdict must be for plaintiffs Noreen Kastner Hendley, Frederick Kastner, Brian Kastner, David Kastner and Evan Kastner against defendant Beech Aircraft Corporation if you believe:
First, plaintiffs were the spouse and children of decedent Rick Kastner, and
Second, defendant Beech Aircraft Corporation sold the Beech Baron Model 95-A55, N9567Y, in the course of defendant’s business, and
Third, the Beech Baron Model 95-A55, N9567Y, was then unreasonably dangerous when put to a reasonably anticipated use without knowledge of its characteristics, and
Fourth, defendant did not give an adequate warning of the danger, and
Fifth, the Beech Baron Model 95-A55, N9567Y, was used in a manner reasonably anticipated, and
Sixth, Rick Kastner died as a direct result of the Beech Baron Model 95-A55, N9567Y, being sold without an adequate warning.
MAI 25.05 (1978) (Revision) Modified per MAI 2.00 and MAI 20.01 (1981 Revision)
Submitted by Plaintiffs Kastners.”
The trial court granted Beech a new trial on the single assigned ground that it was error not to have modified Instruction No. 8, to include a tail clause (as to appellants’ damages for wrongful death of their decedent) that appellants had not been fully compensated by payment to them on behalf of other alleged joint tort feasors. The record shows that appellants had been paid $80,000 by Vanguard Insurance Company in settlement of their claims against the owners of the Beech Baron, the instructor pilot, Claude H. MeNabb, and his employer, Wilson Aviation Academy. In granting the new trial, the trial court noted that the phraseology “for which they have not been fully compensated” is required by MAI 7.01
Appellants contend that Instruction No. 8 was a proper modification of MAI 25.05 (the strict liability form), MAI 20.01 (the wrongful death form), and MAI 2.00 (to identify plaintiffs) because there is no exact MAI verdict directing instruction under which they submitted their case— wrongful death, strict liability — failure to warn. MAI 25.05 was modified to show death and not damages as a hypothesis. The question is, though, not whether there was a proper modification, but whether there was an improper deviation (omission) from MAI 7.01 [requiring credit for a settlement with a joint tort feasor], Notes on Use 2. “Modified Verdict Director. Add to the appropriate verdict directing instruction at the end of the paragraph hypothesizing that damage was sustained the phrase ‘for which he has not been fully compensated.’ ” Appellants say that in this wrongful death case there was no “appropriate verdict directing instruction” because there is no “paragraph hypothesizing that damage was sustained.” Note 2 of MAI 7.01 is inappropriate, they say, because paragraph Sixth of Instruction No. 8 hypothesized the death of Rick Kastner (not damage), and you go to Instruction No. 10 for the submission of the survivors’ damage (which allowed credit thereon for the $80,000 settlement). Appellants are correct in their contention which is further buttressed by their cited cases with reference to MAI 20.01 holding that pecuniary loss need not be hypothesized because “ ‘where it appears in a statutory action for death that the death was caused by defendant’s negligence, nominal damages may be recovered, although no actual pecuniary damage has been shown .. .. ’ 25 C.J.S.
§ 96, quoted in Stroud v. Masek, 262 S.W.2d 47, 51 (Mo.1953).” Committee’s Comment (1981 Revision) to MAI 20.01. The law implies pecuniary loss from the legal duty of a deceased to support a wife and minor children, O’Hara v. Lamb Const. Co., 200 Mo.App. 292, 206 S.W. 253, 254[1, 2] (1918); Steinmetz v. Saathoff, 84 S.W.2d 434, 437[5-7] (Mo.App.1935), “The law will imply pecuniary loss to her by reason of the negligent killing of her husband.”; and see also State ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142, 149 (Mo. banc 1976), where it was said, “ ‘Judgment for nominal damages is a substantial right since such a judgment decides the incident of costs.’ 262 S.W.2d 51. See also, Acton v. Shields, 386 S.W.2d 363[7] (Mo.1965). It is interesting to note that in cases such as the one before us the approved instructions do not require a finding that plaintiff suffered damage. See MAI 20.01 and 20.02. This was explained in the case of Aubuchon v. LaPlant, 435 S.W.2d 648, 652 (Mo.1968) as follows: ‘In wrongful death actions, unlike suits for personal injuries, the issue of whether plaintiff has proved pecuniary loss (damages) is not hypothesized in plaintiff’s verdict directing instructions. See MAI 20.-01 and 20.02. The reason for this, as set out in the Committee’s Comment to MAI 20.01, is that nominal damages may be recovered in such a case as this even though actual damage is not sustained.’ ” [Italics added.]
Hunter v. Norton, 412 S.W.2d 163 (Mo.1967), cited by the trial court and here relied upon by Beech, is distinguishable. The Hunter case was one for damages for personal injury, and necessarily the verdict directing instruction was required to submit the issue that damages resulted from the hypothesized negligent acts of defendants. Thus, as properly held, the verdict directing instruction, omitting the phrase “the plaintiff sustained damage for which he has not been fully compensated by Percy Reed”, was held to be inconsistent with one following MAI 7.01 giving credit for a satisfaction or partial satisfaction by settlement with a joint tort feasor. Here, under the Kansas City Stock Yards case, supra, and cases
Beech asserts other grounds, presented to the trial court, which it says would justify the grant of a new trial. It is further contended, first, that the trial court erred in omitting from Instruction No. 10, the requirement of MAI 7.01 that the name of the joint tort feasor who paid the plaintiff be specified. Shortly before trial, certain crossclaims of parties were dropped, and there remained appellants’ claim for wrongful death, Bettie McNabb’s claim as executrix of the estate of Claude H. McNabb, deceased (the instructor in the Beech Baron) for wrongful death, and a claim of Vanguard Insurance Company for hull damage to the Beech Baron, which it insured and paid to its owners, all against Beech. Vanguard paid the $80,000 settlement to appellants on behalf of the originally named defendants, McNabb’s estate, the owners of the aircraft, and McNabb’s employer, and appellants’ claims against them were dismissed with prejudice. The claim of Bettie McNabb, executrix, was tried and resulted in a $400,000 judgment for her against Beech. Vanguard also recovered judgment on its hull damage claim against Beech for $29,500. These latter judgments were satisfied and are not in issue here. Obviously, any inclusion that the settlement was paid, at least in part, on behalf of Claude H. McNabb’s estate would have been prejudicial to Bettie McNabb’s claim against Beech because it could be construed as an admission of his negligence, as the instructor, in causing the aircraft to crash. The trial court had much pre-trial discussion about this dilemma, and concluded that the name of the person who paid the partial settlement should be deleted. Counsel for Beech accepted that conclusion by saying to the court, “I’ll accept that.” The matter, however, need not be further pursued because Beech requested that Instruction No. 10 be given, which it was, without identifying the payor of the settlement. It may, therefore, not claim prejudicial error based on its own instruction. McDowell v. Schuette, 610 S.W.2d 29, 36[4] (Mo.App.1980), and cases cited; Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166, 171[3] (Mo.1968), and cases cited. Beech’s contention is therefore ruled against it.
Beech’s second further contention is that the trial court erred in orally telling the jury that “As evidentiary matter, we advise you that the law of Missouri judicially notes that the average reaction time of an individual is three-fourths of a second.” The matter came up during the direct and cross-examination of Beech’s expert witness, pilot Dale Ruhmel. He performed single engine stall tests in a Beech Baron which was specially equipped with a sophisticated air speed indicator, an acceleration measuring device, video equipment, and tufts (pieces of yarn) taped to the wing which would show visually a stall situation. Ruhmel testified at one point that he was demonstrating engine chops at the published VMC (velocity minimum control or minimum control speed), but on cross-examination, it was brought out that he was demon
Beech argues that “Essential to the determination of ‘adequate warning’ was evidence concerning knowledge available to the aircraft pilot that a spin of the aircraft could ensue, and his ability, thereafter, to take adequate measures to avoid the aircraft entering a spin.” It should be noted that there was no specific evidence of the reaction times of either Rick Kastner or McNabb, and Ruhmel’s tests were performed under conditions that he would be forewarned of an impending stall and thus any reaction time would be shortened by reason of his anticipation that a stall would occur. It is interesting to note that in a letter of Beech’s vice president it was stated that an applicant for twin-engine training has likely never had training in spin recovery, and under that situation he would “be confused and disoriented for a considerable period of time before he realizes what had happened, much less what corrective action is required.” There is no evidence that deceased had been trained in spin recovery methods or that he had any reason to anticipate the Beech Baron going into a flat spin. Appellants’ theory was that the aircraft had a dangerous propensity to go into a flat spin, and that Beech failed to warn adequately of that propensity, the dangerous results of such a spin, the methods for avoiding it as by maintaining sufficient speed, the altitude that should be maintained for stall demonstrations, and the procedure for recovery from a flat spin. Neither Ruhmel’s testimony as to reaction time nor the trial court’s oral statement to the jury as to average reaction time had any relevance to the issue of adequate warnings, because if the pilots did not know of the aircraft’s propensity to go into a flat spin under the circumstances, or how to get out of it, reaction time would be of no consequence. The only significance of a reaction time in this case would be the pilot’s opportunity timely to avoid the consequences of a stall and a flat spin which could only go to an issue of contributory fault. Beech did not submit that issue, quite apparently because there was no evidence to support it. The trial court was correct in its ruling on this ground contained in the motion for new trial: “The evidence as to reaction time was very much collateral and was not material to any of the issues in the case, and the Court does not perceive prejudicial error which would require the granting of a new trial.” In Phillips v. Vrooman, 251 S.W.2d 626, 630 (Mo.1952), it was said, “ ‘Indeed, no matter what the ground may be upon which it undertakes to act, a trial court is never justified in setting aside a verdict except for error prejudiced to the losing party.’ (Citing case).” Beech’s second additional ground for the grant of a new trial is overruled.
By its last (Points IV and V) additional grounds to support the grant of a new trial, Beech contends that the trial court erred in receiving into evidence reports of accidents compiled by the National Transportation Safety Board (NTSB). These were Exhibits 104, 105, 106 and 107, which are entitled, “Factual Aircraft Accident Report”; Exhibit 86, entitled “Special Study General Aviation Stall/Spin Accidents”; and page 3 of Exhibit 102 (102A) concerning recommendations of NTSB to install placard warnings in Beech Baron Aircraft of the dangers of and prohibiting intentional single-engine stalls, more rigor
Page 3 of Exhibit 102 (102A), supra, refers to NTSB’s recommendations to the FAA, as above set forth concerning the Beech Baron, and is obviously within the purview of the duties prescribed for NTSB under 49 U.S.C.A. § 1441(a), supra. That exhibit came into evidence in this manner: Appellants’ expert witness, Puckett, testified on cross-examination that FAA had found no problem with the Beech Baron when it was tested in February, 1976, which was after the McNabb/Kastner crash of July 15, 1974. Puckett also acknowledged that FAA did not believe that further flight testing on the aircraft was required because that testing confirmed prior data as to its meeting FAA certification requirements as to single engine stalls and undue spinning tendencies. Then appellants’ expert witness, Dr. Craig, testified that the Beech Baron had an undue spinning tendency, and that pilots should be warned of that danger. He did acknowledge on cross-examination that federal regulations did not define undue spinning tendency. It was, however, his expert opinion that the aircraft had an undue spinning tendency, which opinion was not the FAA interpretation of the regulations. This further cross-examination ensued: “Q. And you know that the FAA does not agree with you on this subjective recitation of yours about undue spinning tendency. You know that, don’t you? A. They have never revoked the type certificate, they have never in print they have never agreed with me. That’s fair to say. Q. That is a fair statement. And that is true and you know, in fact that even on occasion after review that they have not agreed with your interpretation. A. Yes. Q. Okay. So, it’s you against the FAA. A. I think I’m not standing by myself.” Thereafter, counsel for McNabb and Vanguard Insurance Company sought to introduce NTSB’s recommendations to show it stood with him against the FAA, and the court held that Beech opened and invited it. Then, Dr. Craig testified that NTSB stood with him on the question of undue spinning as reflected in its recommendations. It thus appears that the document was cumulative to the testimony of Dr. Craig; it was properly admitted to rebut the adverse inference from the cross-examination that it was he against the FAA; and it was further admissible as a record of performed duties of the NTSB under 49 U.S.C.A. § 1441(a), as held herein, infra.
Beech says that Exhibit 86, and the other exhibits, were inadmissible hearsay evidence. Exhibit 86, containing portions of the Special Study on Stall/Spin Accidents of NTSB for the years 1967-1969, has the authentication by signature of its custodian, and there is affixed NTSB’s seal. It
The judgment is reversed and the case is remanded with directions to reinstate the verdict of the jury as of the date rendered, July 16, 1981, and for costs.
All concur.
In a part of its motion for rehearing (but not its application to transfer to the Supreme Court) Beech says that the opinion herein incorrectly holds that Exhibits 104, 105, 106 and 107, which were reports of circumstances of accidents occurring after the Kastner accident, established knowledge of the spin propensities of the Beech Baron. As to these exhibits, Beech is correct, and the opinion is modified to the extent that these exhibits, in themselves, do not establish such knowledge. These four exhibits were admissible for another legitimate purpose: to prove up the Kastners’ theory that there was an unreasonably dangerous spin characteristic of the Beech Baron and that it continued in the marketplace as an unreasonably dangerous product, all to show causation and to rebut any issue of contributory fault. The foundation for the admission of the four exhibits for that purpose was developed from witness Dr. Craig outside the hearing of the jury. The reports were of accidents at Provincetown, Massachusetts; Acuff, Texas; Jarrell, Texas; and Cumming, Georgia, which four were the most likely to be similar in circumstances to the Kastner accident: The four aircraft were similar and had not been modified; at least two had impacted in a flat spin, others in more normal spins; the weather conditions were similar; the aircraft were seen at similar altitudes in a spin; and probably there was some instructional or pilot practice of simulated or actual single engine operation. The trial court determined that sufficient similarities existed, and the four exhibits, supra, were never given to the jury for perusal. Dr. Craig, however, referred to the exhibits during the course of his testimony before the jury.
Exhibit 86, a report of a Special Study on Stall/Spin Accidents of NTSB, was not made after the Kastner accident, but was for the years 1967-1969. There was also an Exhibit 92, not mentioned in the opinion, which was a summary of a statistical study of stall/spin accidents, but covered the years 1964-1972. Exhibit 86 showed the stall/spin statistics of the Beech Baron to be worse than the comparable Cessna 310 and the Piper PA 30. Exhibit 92, admitted into evidence without objection from Beech, showed that the Beech Baron’s stall/spin accident record was worse than the Cessna 310, and not quite as bad as the Piper PA 30. The jury could find that Beech had knowledge of previous stall/spin characteristics, not only from the evidence from O’Dell, but also from the admission of William H. Schultz, Beech’s manager of Technical Engineering and FAA Liaison, that it maintains files of various NTSB and FAA special studies, kept down the hall from the office of Beech’s Manager of Technological Engineering. This evidence clearly gives rise to an inference of knowledge of the spin characteristics of the aircraft which would in turn give rise to the duty to make adequate warnings thereof.
Other matters raised in the motion for rehearing and the alternative motion to transfer to the Supreme Court have been considered. The motion for rehearing is overruled, and the motion to transfer to the Supreme Court is denied.
. MAI 7.01 was withdrawn, effective January 1, 1983, and new MAI 1.06 was then adopted: “No instruction shall be given directing the jury to credit its verdict with the amount of any advance payment or partial settlement.” See 632 S.W.2d XXIX.