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July 6, 1971


Muir, District Judge.

The opinion of the court was delivered by: MUIR

Before the Court is Plaintiff's Motion for a New Trial on certain issues and Judgment in favor of the Plaintiff as to other issues.

 This action arose from an airplane accident on January 13, 1966, near Green River, Wyoming, *fn1" and the only issues at trial concerned the locus of ultimate liability for the aircraft damaged in the crash.

 Defendant McDermott Brothers Company ("McDermott Brothers") sold a large piece of equipment to Defendant Allied Chemical Corporation ("Allied") for use in conjunction with a mine owned and operated by Allied near Green River, Wyoming. Under the sales agreement between Allied and McDermott Brothers, the latter was to furnish customer service in the form of an engineer to inspect the equipment prior to initial operation. On January 12, 1966, John J. McGee, President and General Manager of McDermott Brothers, and Alvin Cunningham, an employee of Third-Party Defendant Hauck Manufacturing Company, left Pennsylvania for the Allied Chemical plant at Green River in a 1962 Cessna Skynight 320, N5707X, aircraft piloted by McGee, to fulfill the customer service provisions of the sales contract with Allied. At about noon on January 13, McGee landed the plane at Rock Springs, Wyoming, and telephoned the Allied Chemical plant approximately 45 miles away for directions and information concerning the availability of a landing strip or suitable substitute for one near the Allied facility. An Allied employee, Gordon French, informed McGee that on occasion planes had landed near the plant on part of an abandoned East-West roadway. Leaving Rock Springs, McGee obtained a weather report and flew to the plant site on the directions of French. When the plane appeared over the proposed landing site, French, who had positioned himself at the point of intersection of the abandoned East-West roadway and a new unfinished North-South highway, waved to McGee. After a low pass over a portion of the new, graded, unpaved North-South highway, McGee brought the plane down on the North-South roadway. As the craft taxied down the strip, a gust of wind carried it slightly off course and the pilot opted to finish the landing off the highway. The plane taxied across unimproved land until it struck an irregularity in the East-West roadway and was damaged.

 Pacific Indemnity Company, which insured the airplane, was substituted as Plaintiff for Continental Aircraft Sales, its insured, in an action against McDermott Brothers and McGee for negligence in piloting the aircraft and against Allied Chemical Corporation for negligence of Allied's employee, French, in suggesting an unsuitable landing site. Joining Hauck Manufacturing Company ("Hauck") as Third-Party Defendant, Allied alleged that Hauck and McDermott Brothers were engaged in a joint venture and that, by virtue of this connection, the alleged negligence of McGee is imputable to Hauck.

 Trial of this case was bifurcated. The issues of liability were submitted to the jury on twelve special interrogatories. The jury was able to agree to answers to all but one question. *fn2"

 The jury's special findings included factual determinations that McGee was negligent, but that his negligence was "slight," that McDermott Brothers' possession of the Cessna aircraft on the date of the accident was for the mutual benefit of McDermott Brothers and Continental Aircraft, Plaintiff's insured, that Allied's employee French was not negligent, and that Pacific Indemnity insured the plane for the benefit of Continental Aircraft Sales on the date of the accident.

 Although the jury left unanswered the interrogatory relating to causal connection between McGee's "slight" negligence and the accident, their findings nevertheless supply the basis for the legal inferences that neither McDermott Brothers nor Allied Chemical Corporation is liable to Plaintiff for damage to the plane; in Pennsylvania, a mutual benefit bailee is liable for damage to the bailed property caused by the bailee's negligence only where such negligence is "ordinary" or "gross." See, Cody v. Venzie, 263 Pa. 541, 546, 107 A. 383 (1919); Moon v. First National Bank of Benson, 287 Pa. 398, 402, 135 A. 114 (1926); 5 Pennsylvania Law Encyclopedia, Bailment, §§ 10-13. Here, the jury found that McGee's negligence was "slight," and did not rise to the level of "ordinary" negligence. (The jury's special verdict is attached hereto.)


 The Plaintiff's position is that the jury's special finding that Hauck and McDermott's status at the time of the accident was that of joint venture is sound and should be preserved at a retrial of the issues of negligence and causation with respect to McDermott Brothers. This view is predicated upon the assumption that a new trial is required on these issues. Plaintiff assigns seven grounds for its Motion for a New Trial.

 1. Admission of Insurance Policy Between Pacific Indemnity Company and McDermott Brothers. A written insurance contract between Pacific Indemnity and McDermott Brothers was admitted into evidence over the objection of Plaintiff that the policy was irrelevant because it did not cover the damaged aircraft.

 At trial, the testimony disclosed that the policy was purchased by McDermott Brothers to insure a twin-engine Beechcraft 641E airplane, which McDermott Brothers had purchased from Continental Aircraft Sales. As part of the sale, Continental was to take the Cessna aircraft as a trade-in and before delivery modify the new Beechcraft to meet McDermott Brothers' specifications. Since Continental was not in a financial position to undertake the costly modifications of the Beechcraft without assistance, McDermott Brothers agreed to transfer title to the Cessna prior to delivery of the Beechcraft to enable Continental to mortgage the Cessna and obtain sufficient capital to go ahead with modification of the Beechcraft. According to McGee's testimony, under the agreement, McDermott Brothers was to retain possession of the Cessna for use in its business until modification of the Beechcraft was completed. At trial, McDermott Brothers and McGee advanced the theory that one part of the Continental-McDermott Brothers transaction was the oral agreement that Continental would purchase insurance for the Cessna which would cover McDermott Brothers' use in the interim and that McDermott Brothers would purchase insurance on the new Beechcraft, which remained in possession of Continental. Plaintiff assigns as error the admission of the latter insurance policy, which it contends was irrelevant. The document in question was an insurance policy written after the date of the accident; under its terms coverage commenced prior to the date of the accident. Defendants offered it to prove the terms of the transaction between Continental Aircraft, Plaintiff's insured, and McDermott Brothers, and for that purpose it was relevant.

 2. Failure of Jury to Answer Proximate Cause Interrogatory. The fact that the jury did not return an answer to Question #4 of the Special Interrogatories relating to causal connection, vel non, between McGee's negligence and the accident does not necessitate a new trial, because the jury returned findings of fact that the degree of negligence necessary for imposition of liability on McGee and McDermott Brothers was not present.

 The jury having found "slight" negligence on McGee's part and a mutual benefit bailment of the Cessna aircraft, the question of the causal relation between McGee's negligence and the accident is plainly academic. A finding either way would not alter the consequences of the jury's other findings. In such circumstances, a new trial is unnecessary. Minneapolis, Northfield & Southern Railway Co. v. Skyway Aviation Corporation, 32 F.R.D. 1 (D.C. Minn. 1963), aff'd., 326 F.2d 701 (8th Cir. 1964); Kissell v. Westinghouse Electric Corporation, Elevator Division, 367 F.2d 375 (1st Cir. 1966).

 3. Failure to Charge on "Choice of Ways Doctrine ". Plaintiff requested the following jury instruction, which was denied:

"(4) Where a person having a choice of two ways, one of which is safe and the other of which is subject to risks and dangers, voluntarily chooses the latter and injury results, is negligent and responsible for the harm that results." [Citing Plewes v. Lancaster, 171 Pa. Super. 312, 90 A. 2d 279 (1952)]

 Plaintiff contends that failure to give this requested instruction and the failure to submit the issue to the jury was error requiring a new trial.

 The jury answered "yes" to Interrogatory #3: "Was the Defendant John McGee negligent in (1) deciding to land at the Allied plant or (2) deciding to land on the North-South road at the Allied plant or (3) in his manner of landing the plane?" The jury went on to find that McGee's negligence was slight, and Plaintiff now argues in the face of a finding of negligence that failure to give the requested instruction relating to the "choice of ways" doctrine was error so prejudicial as to require a new trial, since, had the instruction been given, the jury might have found McGee's negligence to be more than "slight." This contention is without merit.

 It is well-settled that a trial court need not instruct on matters not pleaded and for which there is not substantial evidence. A requested instruction which assumes the existence of disputed facts is improper. Although in the instant case, Plaintiff's allegations *fn3" of negligence in the pleading do not raise the theory that McGee's negligence consisted in choosing to land at the Allied plant rather than at a landing strip at Green River, Wyoming, fifteen miles from his destination, Interrogatory #3(a) did present the issue to the jury. The pleadings make no mention of Plaintiff's theory that McGee was negligent in deciding to land on the North-South strip at the Allied plant rather than on the East-West strip, but that issue was placed before the jury by Interrogatory #3(b).

 The record is devoid of that quantum and quality of evidence which would necessitate an instruction, beyond a general negligence instruction, on these unpleaded theories of negligence.

 Besides being ungrammatical, the requested instruction might have misled the jury. Since the uncontradicted testimony was that at the time of the accident McGee was unaware *fn4" of the existence of the Green River landing strip, he could not be said to have made a conscious choice between it and the landing site beside the Allied plant. The Allied plant, not Green River (fifteen miles distant), was McGee's destination. Plaintiff's only evidence concerning the nature of the facility at Green River at the time of the accident was testimony bordering on hearsay *fn5" through its own expert from an annual Aircraft Owners and Pilots Association airport directory for 1966, which gave a description of the facility. That testimony indicated that far from being a superior alternative *fn6" to the landing site at the Allied plant, the Green River "Airport" was listed in the AOPA directory with the remark: "Caution: runway reported soft and rough."

 The Green River facility was located *fn7" in such a way that an airplane landing there would have been subject to crosswinds. The landing strip was reported unattended, *fn8" and there was uncontradicted testimony *fn9" that the Green River landing strip was located five miles outside the town of Green River and was accessible only by foot. The North-South landing strip which McGee chose as his landing site was close to the Allied plant, and his information concerning its condition was not stale. The North-South road was composed of *fn10" compacted gravel, had just been graded and was flat. It was not soft.

 With regard to the East-West landing strip at the Allied plant, the testimony disclosed *fn11" that this was a blacktop highway not greater than 20 feet in width, which had been abandoned for five years. It was "in a pot-holed condition," *fn12" "badly broken up" and "pitted". *fn13" It had a drainage ditch running along its entire length on one side. *fn14"

 Under these circumstances, an instruction phrased in such a way as to suggest that there was a landing site clearly superior to the North-South strip at the Allied plant might have misled the jury, and, for that reason, it was not error to deny Plaintiff's requested instruction.

 4. The Charge on Bailment. Plaintiff next asserts as error the giving of instructions on the law of bailments and the degrees of negligence. Plaintiff argues that the issue of bailment was not raised in the pleadings and that it was, therefore, error to charge on it. In P 7 of the original complaint, incorporated in subsequent amendments thereto, Plaintiff itself raised the issue:

"7. On or about January 13, 1966, plaintiff corporation bailed said aircraft to defendant McDermott Brothers Company."

 The allegation of bailment was denied in the Answer of McDermott Brothers Company and John McGee. Since the negligence of an alleged bailee was in issue, an instruction concerning the types of bailments and the standards of care relating to each type was necessary. Furthermore, Plaintiff took no exception to the charge on the law of bailments, required as a precondition to its assignment as error by F.R. Civ. P. 51. *fn15"

 5. Admission of Evidence that Continental Aircraft Orally Agreed to Purchase Insurance on the Cessna Covering McDermott Brothers and McGee. Plaintiff's fifth assignment of error is the admission of testimony to the effect that, as part of the sales agreement, Whitesell, the President of Flying W Airways and its subsidiaries, which include Continental Aircraft ...

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