Todd v. Weikle

Moore, J., delivered the opinion of the Court. In this wrongful death action arising out of the crash of a Cessna Skymaster into South Mountain near Burkittsville, in Frederick County, one of the primary issues is that of pilot identity, that is, who among the occupants was operating the aircraft at the time of the fatal crash when the ⁶⁶⁵ plane was equipped with dual controls and there were no survivors or eyewitnesses. Appellees, the surviving husband and 10 year old son of Antha Lea Weikle, recovered a judgment after a jury trial in the Circuit Court for Frederick County (Clapp, J., presiding) in the total aggregate sum of $235,000. 1 Appellants, defendants below, are the executrix of the estate of Terrell G. Todd, and the owner of the aircraft, the Wilcox Manufacturing Company. The case had been submitted to the jury upon five separate issues. 2 Appellents’ motion for judgment n.o.v. was denied.

On appeal they contend that there was no proof as to the identity of the individual who was actually manipulating the controls of the aircraft at the time of the fatal crash and the trial court should have granted their motion for directed verdict. In addition, appellants claim that the court committed prejudicial error (a) in allowing hearsay evidence that Mr. Todd did not file an instrument flight plan before takeoff; (b) in failing to instruct that Mr. Todd was entitled to the presumption of due care; and (c) in permitting the jury to find solatium damages on behalf of the minor child of the appellee’s decedent. We find that the surviving child was not entitled to solatium under the provisions of Maryland’s Wrongful Death Act, Code, Cts. & Jud. Proc., § 3-901, et seq.

(1974), and we set aside the jury’s verdict for such damages in the amount of $40,000. We otherwise affirm. I Marshall Weikle, age 55, and his wife, Antha Lea Weikle, age 27, residents of Beckley, West Virginia, arose early on the morning of September 18, 1971 and left their home at ⁶⁶⁶ 6:00 a.m. for the 15-minute drive to the Raleigh County (West Virginia) Memorial Airport. Mrs. Weikle, who had a student flying permit and who, according to her husband, had the “flying bug,” had been invited to accompany Terrell G. Todd and Henry E. Brooks, president and sales manager, respectively, of the Wilcox Manufacturing Company, on a business trip to New Jersey in a private plane, a Cessna 337 Skymaster, owned by the company.

The plane took off at 6:30 a.m. for the 3-hour flight to Teterboro Airport, near Newark. It was dark at that time and the weather was foggy and misty. 3 Mr. Todd occupied the front left seat and Mrs. Weikle the right. Mr. Brooks sat in back of them. Mr. Weikle testified that he was within 50 feet of the plane at takeoff and he could observe that Mr. Todd was flying it.

The aircraft was equipped with dual controls and could be operated from either of the front seats. The instruments, however, were located in front of the left seat. Mr. Todd was an experienced, licensed pilot with over 740 hours of flight time. Practically all his flight experience was under Visual Flight Rules (V.F.R.).

His experience under bad weather conditions operating under Instrument Flight Rules (I.F.R.) was limited to some 3 hours and 30 minutes. Mrs. Weikle has logged 25 to 30 hours of pilot time as a student, all under visual flight conditions. She had flown before with Mr. Todd and had some 5 hours "f instruction time in the Skymaster. The plane was not heard from for about 3V2 hours.

At approximately 10:00 d.m., a male voice from the aircraft contacted the Air Traffic Control (A.T.C.) at Dulles Airport in Virginia and made a request to file an instrument approach into the Martinsburg, West Virginia Airport. Upon this initial contact, according to the Dullas A.T.C. tapes played at trial, the Skymaster was about 6 miles northeast of the Martinsburg Airport V.O.R. (The V.O.R. is a radio signal transmitted from a point generally several miles ⁶⁶⁷ distant from an airport. By locating it, the pilot can position himself for landing.) For several minutes Dulles’ air controller gave the small craft a series of instructions.

The plane was instructed to descend to 3,000 feet altitude. As the Skymaster approached the V.O.R., its instructions were then to contact directly the Martinsburg Tower for permission to land. However, before it reached the V.O.R., Dulles lost all radio contact with the plane, which had apparently dropped below 3,000 feet and thus disappeared from the radar screen. No communication was ever established by the plane with the Martinsburg Tower.

The only known witness to the Cessna’s tragic final minutes was Henry A. Conway, a retired sea captain residing in Rohrersville, Washington County, Maryland. Standing on his property, he observed the plane as it headed north. He testified that the cloud ceiling was about 400 feet and the plane’s altitude was somewhere between 300 and 400 feet. Although the plane, in its original course, would have safely passed between Elk Ridge and South Mountain, two elevations forming Rohrersville Valley, it suddenly made a sharp 90 degree right turn, without banking, towards South Mountain.

The witness than lost sight of the plane as it flew into a fog bank. Seconds later, he observed the explosion and heard the crash in which all three occupants were killed instantly. According to Frederick Michael Fox, the investigator for the National Transportation Safety Board, the weather at the time of the crash was foggy and overcast with a 2Va mile visibility. The accident occurred approximately 12 miles east of the Martinsburg Airport V.O.R. The elevation of South Mountain is 1700 feet.

According to Mr. Fox, the path of the debris at the accident site indicated that the plane was flying level and under full power at the time of impact. The appellees produced an expert witness, Ross C. Nye, to testify concerning the cause or causes of the disaster. Mr. Nye explained the “primary reason” for the crash as follows: “[T]o get right to the accident itself which ⁶⁶⁸ occurred some time after passing the Martinsburg VOR when the pilot was cleared for the approach and is cleared to make a descent to the field; when he accepts that clearance and makes that descent to the field he has essentially two options. One, he can either effect the approach and complete it to a landing or two, he can miss the approach and follow the prescribed missed approach procedure which is climbing left and turn back to the VOR and hold.

He obviously didn’t make the landing and he obviously didn’t make the missed approach because he was .twelve miles northeast or correction, east of the VOR at an altitude well below the published missed approach procedure altitude.” As the “secondary reason,” he stated: “I think the whole flight by itself is a cause of the accident in that I think the takeoff was effected under dangerous conditions for the type of flight that was contemplated ....” Appellants offered no testimony. Their evidence consisted of stipulations with respect to actuarial computations on the issue of damages. On this appeal, no substantive issue is raised with respect to the existence of negligence. Appellants admit that the sharp turn of the Skymaster at a 90 degree angle directly towards South Mountain was the act which resulted in the crash.

Their principal contention, however, is that whether Mr. Todd was handling the controls at the time of the fateful turn was a matter of speculation and not a jury question. For the reasons next stated, we disagree. II The standard of proof necessary to establish pilot identity in a dual control aircraft has not previously arisen in Maryland, but it has confronted courts in other jurisdictions. See, e.g., Udseth v. United States, 530 F. 2d 860 (10th Cir. 1976); Boise Payette Lumber Co. v. Larsen, 214 ⁶⁶⁹ F. 2d 373 (9th Cir. 1954); Insurance Company of North America v. Butte Aero Sales & Service, 243 F. Supp. 276 (D. Mont. 1965); In Re Hayden’s Estate, 254 P. 2d 813 (Kan. 1953); Drahmann’s Administratrix v. Brink’s Administratrix, 290 S.W.2d 449 (Ky. 1956); Michigan Aero Club v. Shelley, 278 N.W. 121 (Mich. 1938); Lange v. Nelson-Ryan Flight Service, Inc., 108 N.W.2d 428 (Minn. 1961); Mitchell v. Eyre, 206 N.W.2d 839 (Neb. 1973); Budgett v. Soo Sky Ways, 266 N. W. 253 (S.D. 1936); Towle v. Phillips, 172 S.W.2d 806 (Tenn. 1943); Hall v. Payne, 52 S.E.2d 76 (Va.1949).

See Annot., 36 A.L.R.2d 1290 (1954); Sales, Dual Control Aircraft Accidents, 42 Ins. Coun. J. 582 (1975); Note, Res Ipsa Loquitur in Small Aircraft Litigation, 41 J. Air L. and Com. 103 (1975). In our review of the decided cases, we perceive two extreme positions.

On the one hand, there is a line of authority which demonstrates for all practical purposes a judicial unwillingness to submit the issue of pilot identity to a jury based upon circumstantial evidence. See, e.g., Udseth v. United States, supra; Morrison v. LeTourneau Company of Georgia, 138 F. 2d 339 (5th Cir. 1943); In Re Hayden’s Estate, supra; Michigan Aero Club v. Shelley, supra; Mitchell v. Eyre, supra. The other extreme is the Minnesota rule or the “pilot in command” doctrine, as that term is defined in the Federal Air Regulations, 4 which holds that the pilot in command is responsible for the negligent act, irrespective of whether or not he is in actual operation of the controls at the time of the fatal crash. Lange v. Nelson-Ryan Flight Service, Inc., supra, cert. denied, 371 U. S. 953 (1963 ). 5 In our judgment the proper approach to this question of pilot identity is the rule which applies generally in civil actions, that is, pilot identity must be proved by the plaintiff by a preponderance of the evidence under the standard that ⁶⁷⁰ the fact sought to be proved is more likely so than not so.

This is what we mean by a preponderance of the evidence. See C. & P. Telephone Co. v. Hicks, 25 Md. App. 503 , 337 A. 2d 744 (1975). This rule is the same whether the evidence bearing upon the question at issue is direct or circumstantial. As the Supreme Court of Nebraska stated in the case of Mitchell v. Eyre, supra: “To recover herein the plaintiff was required to prove who was piloting the plane at the time of the crash.

Until she has done so she has not met her burden of proof. The finding of negligence is immaterial until we can determine the identity of the person to be charged with responsibility for the negligence.” It must be recognized, of course, that in the case of a disaster involving a small private aircraft where all of the several occupants have perished, there can ordinarily be no certainty of pilot identification and, in the generality of cases, the evidence bearing upon that issue will be entirely circumstantial. To withstand a motion for a directed verdict, the plaintiff should be required to produce probative evidence that the individual claimed to be the pilot was the one in charge of the controls at the critical instant of time. Probative evidence is not evidence that invites speculation and when appellants argue, as they do in their brief, that the “majority rule prohibits jury speculation on the identity of the individual piloting a dual control airplane,” they are speaking not of a “majority rule” applicable to aviation accidents but of a fundamental precept of law which proscribes jury speculation in any case, civil or criminal.

In the absence of statutory authority, the rules of law governing aviation cases are the same as those governing ordinary negligence actions in Maryland. State, Use of Piper v. Henson Flying Service, Inc., 191 Md. 240, 247 , 60 A. 2d 675 (1948). A familiar Maryland rule is that a defendant’s negligence may be shown by either direct or circumstantial evidence and may be inferred from all of the facts of the case. Western Maryland Railroad Co. v. Shivers, 101 Md. 391 , 61 A. 618 (1905); Pearson v. Wiltrout, 17 Md. App. 497 , ⁶⁷¹ 501, 302 A. 2d 678 (1973).

(The appellees rely in the instant appeal upon ordinary negligence and not res ipsa loquitur.) Here, the trial court reserved ruling on appellants’ motion for a directed verdict and thereafter denied appellants’ motion for judgment n.o.v. in the face of circumstantial evidence which included the following: (1) Mr. Todd occupied the left front seat at takeoff, the seat customarily occupied by the pilot; (2) A male voice which appellants conceded at trial to be that of Mr. Todd was in communication with Air Traffic Control at Dulles Airport only minutes before the fatal accident; 6 (8) Todd was the president of the company which owned the aircraft and was a licensed pilot with a substantial amount of flying experience; (4) Mrs. Weikle, while a flying enthusiast, was a student only with limited experience and no known familiarity with instrument flight conditions; (5) The weather conditions at takeoff and during the flight required, pursuant to FAA Regulations, that the plane be flown under instrument flight rules; (6) The instruments required to manage the aircraft under adverse weather conditions were located only in front of Mr. Todd’s seat; (7) Mr. Weikle positively identified Mr. Todd as the pilot of the aircraft during takeoff and there is no evidence to disclose whether or not it was feasible for Todd and Mrs, Weikle to exchange seats during flight; (8) There was no evidence of any sudden illness on the part of Mr. Todd nor of panic on the part of ⁶⁷² Mrs. Weikle, although the trial court stated to the jury that “the possibility of Mrs. Weikle grabbing the dual controls is an item for you to consider on this question of fair preponderance of the evidence and burden of probabilities.” Circumstances similar to those existing here have been found persuasive by other courts on the issue of the sufficiency of the evidence to require submission of the case to the jury. Thus, in Insurance Company of North America v. Butte Aero Sales and Service, supra, the court stated in holding the evidence was sufficient on the issue of pilot identity to support a denial of defendant’s motion for a directed verdict: “Under the circumstances it is impossible for anyone to be absolutely certain as to who was piloting the plane when it crashed, but the court believes there was sufficient evidence for the jury to find that Elderkin was the pilot. The only evidence that Hodge might have been the pilot was that he could fly and liked to do so, and that the plane had dual controls. On the other hand, Elderkin was the owner of the plane and had frequently flown it, whereas Hodge had never flown it.

At the time of takeoff Elderkin occupied the seat from which a plane is usually and customarily flown, and after the crash Hodge was still strapped in the opposite seat. Elderkin requested permission to take off.” 243 F. Supp. at 281 . (Emphasis added.) And in Drahmann’s Administratrix v. Brink’s Administratrix, supra, where a small dual control aircraft crashed during aerial maneuvers, and an eyewitness testified that the plane in its final moments appeared not to be handled by an experienced pilot, the court reversed a directed verdict for the defendant and stated: “It appears to us that a man like [the plaintiff’s decedent], with no flying experience, would not ⁶⁷³ attempt the difficult and skilled maneuver of bringing a plane in for a landing. [The defendant’s decedent] had the skill and experience to make the landing properly. Any man has an instinct for self preservation.” 290 S.W.2d at 454 .

Again, in Boise Payette Lumber Co. v. Larsen, supra, four men were killed in the crash of a small private dual-control airplane. The owner of the plane, one Homer Smith, was a licensed pilot. Another occupant of the plane, plaintiffs decedent, Wayne Larsen, also had experience flying a plane. The crash occurred minutes after a voice identified as Smith’s requested clearance to land.

The court stated: “There is little reason to doubt that in the plane Smith did all the talking. But was Smith flying the plane? It is not a mathematical certainty, but the conclusion that he was flying the plane was within jury limits. The jurymen could consider from their human experience whether, when Smith owned the plane, was doing the talking on the radio on the request for clearance, ... it was probable that he had turned the controls over to another who had not flown for some months.” 214 F. 2d at 377.

In affirming a decision in favor of the plaintiffs, the court observed: “In big, complex airplanes, there is a division of labor, almost everyone knows. But in a small aircraft with the owner aboard, may the jury not assume when the owner was doing the talking to the control tower that the owner had the reins in his hands?” 214 F. 2d at 377. We also observe that appellees in the instant case are aided by the Maryland rule known as the “presumption of continuance.” As described in Campfield v. Crowther, 252 Md. 88 , 249 A. 2d 168 (1969): “There is, within certain limits, a presumption of fact that something which has been proved to exist ⁶⁷⁴ continues to exist for a reasonable time, depending on what it is and the circumstances of the case. This is known as the presumption of continuance, and it is held to be not a legal presumption, [and, therefore, does not shift the burden of proof, see Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1976), aff'd, 278 Md. 187 , 362 A. 2d 629 (1976)], but a matter of the burden of proof.” 252 Md. at 97 , quoting, Donner v. Calvert Distillers Corp., 196 Md. 475, 490 , 77 A. 2d 305, 311 (1950).

In Campfield , the fact that the defendant was proved to have been driving the car prior to the accident raised the inference that he continued to control the car at the time of the accident. There is little doubt that Mr. Todd was in communication with the Air Traffic Control at Dulles Airport some 8 to 12 minutes prior to the crash, and was at that time in management of the aircraft. Campfield held that there was a presumption of fact that the driver’s known operation of the vehicle shortly before the accident “continued for a reasonable time.” We believe that the time interval involved here between the last communication with the ground and the time of the crash — 8 to 12 minutes later — was a reasonable interval. We think under the totality of the circumstances, the trial court properly ruled that the question of pilot identity was for the jury to decide.

III During the direct testimony of Frederick Michael Fox, investigator for the National Transportation Safety Board, the witness was permitted to state, over objection, that a flight plan for the proposed trip from Beckley, West Virginia to Teterboro, New Jersey was never filed by Mr. Todd. 7 ⁶⁷⁵ (Previously, the court had excluded the report itself pursuant to 49 U.S.C. § 1441 (1970)). Although this information was contained in the report of the investigation,