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