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INSURANCE CO. OF NORTH AMERICA v. SALTZMAN

April 17, 1953

INSURANCE CO. OF NORTH AMERICA ET AL.
v.
SALTZMAN.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

On July 17, 1952, plaintiffs filed their complaint in which they alleged that they were damaged as a proximate result of the negligence of the defendant.

The defendant filed his answer to the plaintiffs' complaint and the case was set for trial on March 9, 1953. On that date the case was submitted to the Court upon the amended stipulation of the parties and the depositions of Bruce Campbell and R.B. Handy, Jr. The Court ordered counsel for the respective parties to submit briefs in support of their contentions and this has now been done.

After considering the pleadings, the amended stipulation of the parties, the depositions, and the briefs filed herein, the Court now makes and files the following findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The plaintiff, Veterans of Foreign Wars of the United States, hereinafter referred to as V.F.W., is a corporation organized and existing under the laws of the United States and maintains its national headquarters in Kansas City, Missouri. The plaintiff, Insurance Company of North America, hereinafter called Insurance Company, is a Pennsylvania corporation qualified to do business in the State of Arkansas.

The defendant, B.N. Saltzman, is a citizen and resident of the State of Arkansas and resides in the Western District of Arkansas, Harrison Division.

The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

On November 28, 1951, a Ryan Navion Airplane, owned by plaintiff, V.F.W., and being piloted by Bruce Campbell, a salaried employee of said plaintiff, was landed at the Flippin, Arkansas, airport. The Commander-In-Chief of the V.F.W., Frank C. Hilton, was the only passenger in the airplane and was travelling on official V.F.W. business.

Upon arriving at the airport, the pilot did such things as are customarily done by a pilot of a Ryan Navion Aircraft, including leaving all switches, throttles and controls in their normal position. At the request of Mrs. Genevia Crane, wife of the operator of the airport, the pilot left the plane unlocked and the brakes off and disengaged to facilitate the airport employees in properly storing the airplane in the hangar overnight.

After the pilot and his passenger had departed from the airport, the defendant, B.N. Saltzman, who is a regularly licensed and practicing physician in the area of Mountain Home, Baxter County, Arkansas, and who is also a licensed pilot of his own aircraft, approached the Ryan Navion Airplane with an intention of examining it since he had been considering purchasing such an aircraft. Without permission or knowledge of Hilton, Campbell or Mrs. Crane, the defendant entered the cabin of the airplane and began examining and operating various instruments, switches, button controls and equipment. The defendant, after operating the controls for several minutes, unintentionally started the airplane in motion. He attempted to stop the movement of the airplane but was unable to do so because, not being familiar with the Ryan Navion Airplane, he could not locate the brake actuating controls. While the defendant was searching for the brake control on the floor of the aircraft cabin, it traveled approximately 90 to 100 feet and crashed into the side of the Flippin Airport hangar, causing extensive damage to the aircraft.

3.

The airplane was damaged in the sum of $3,532.08, of which amount the plaintiff, Insurance Company, paid the sum of $3,232.08 pursuant to the terms of its Aircraft Hull Policy of Insurance covering said airplane, and the plaintiff, V.F.W., paid the sum of $300 under the deductible provision of the policy.

Insofar as appears from the evidence, the airplane was in as good condition after being repaired as it was before it was damaged, and it follows that the sum of $3,532.08 represents the difference in the market value of the airplane immediately before and immediately after the injury.

4.

After the accident, V.F.W. paid $61.81 for long distance telephone calls made in connection with said accident. These calls included notification of V.F.W. headquarters of the accident, notification of the insurance companies, filing of an accident report with the Civil Aeronautics ...


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