Before HASTINGS, Chief Judge, DUFFY and MAJOR, Circuit Judges.
HASTINGS, Chief Judge: This is an action by plaintiff Kathryn E. Steven, administratrix of the estate of George A. Steven, deceased, against defendant Roscoe Turner Aeronautical Corporation (RTAC) for the alleged wrongful death of plaintiff's husband, George A. Steven.
Plaintiff's decedent was killed as the result of an airplane crash. The airplane was chartered by deceased and others from Turner Aviation Corporation (TAC).
Plaintiff alleged that TAC was an agent of RTAC. She contended in the alternative that TAC was a mere corporate instrumentality of RTAC.
The district court entered an order sustaining RTAC's motion for summary judgment. From the resulting summary judgment, plaintiff appealed.
RTAC is an Indiana corporation, organized in 1931.Its principal place of business is Wier Cook Airport, Indianapolis, Indiana. It operates an aircraft sales and service business and holds a day and night air taxi operating certificate, for the carrying of passengers, issued by the Civil Aeronautics Authority. There are eight persons on the board of directors of RTAC. Roscoe Turner is chairman and two of the other seven are Madonna Turner and French Elrod. Madonna Turner is also president of RTAC.
TAC was incorporated in Indiana in 1953 by Roscoe Turner, French Elrod and Cecil Taylor. Roscoe Turner is president and Madonna Turner secretary-treasurer. TAC's principal place of business is Hulman Field, Terre Haute, Indiana. It engages in selling and servicing aircraft and carrying passengers for hire. Its air taxi certificate was issued in December, 1955, and authorized daytime flights only.
Richard 53 by Roscoe and Madonna Turner. In 1955, Meserve became vice president of TAC.
From December, 1955 through March, 1957, TAC employed one pilot and owned one single engine airplane. When needed, additional airplanes and pilots were sent to TAC by RTAC. Roscoe Turner instructed Meserve to use only aircraft owned by TAC or RTAC.
On March 6, 1957, at approximately 4:30 P.M., a scheduled flight of Lake Central Airlines to Chicago was canceled at Terre Haute, Indiana. A group of stranded passengers was anxious to get to Chicago that evening, among them plaintiff's decedent. Plaintiff's decedent and five others went to the office of TAC to inquire about a charter flight.A twin engine aircraft capable of carrying all six persons was requested. Meserve quoted them the price of such aircraft. The group considered this price too high since they would have to pay the additional expense of the flight of the plane from RTAC in Indianapolis to Terre Haute. It was finally agreed that the six passengers would be transported to Chicago by TAC, three each in two single engine planes.
Meserve piloted one aircraft which flew to Meigs Field in Chicago and landed at 7:15 P.M. without incident.
The second airplane was flown by Vernon Hux who did not have a license to carry passengers. Both flights took place at night in violation of TAC's air taxi certificate.
The airplane piloted by Hux crashed near Grant Park, Illinois, at approximately 7:10 P.M., killing plaintiff's decedent. The airplane had been rented by TAC from Wremco Enterprises, Inc., an Indiana corporation, whose only asset was this airplane. Meserve and Hux were officers and shareholders of Wremco. Meserve arranged for the rental. Neither Roscoe Turner nor RTAC had knowledge of the existence of Wremco and Turner had instructed Meserve to use only airplanes belonging to RTAC and TAC.
Plaintiff originally filed suit against RTAC, TAC, Wremco Enterprises, Inc., Vernon Hux and Richard Meserve. RTAC was voluntarily dismissed from this suit on plaintiff's motion.
On February 26, 1959, plaintiff commenced the present action against RTAC as sole defendant, in the Circuit Court of Cook County, Illinois. RTAC obtained removal, based on diversity of citizenship, to the United States District Court for the Northern District of Illinois. Thereafter, the case was transferred to the United States District Court for the Southern District of Indiana, where it was consolidated with the original case against TAC, et al.
On May 18, 1962, RTAC filed a motion for summary judgment. It contended that no genuine issue as to any material fact was present and therefore it was entitled to judgment as a matter of law.*fn1 In support of its motion, RTAC filed affidavits of Madonna Turner, Roscoe Turner and Meserve.
In response to such motion, plaintiff offered in evidence a copy of the transcript of testimony by Roscoe Turner taken at a hearing before the Civil Aeronautics Board (CAB), the decision of the CAB, depositions of Roscoe Turner and Meserve, affidavits of counsel and corporate records of Wremco, TAC and RTAC.
The copy of the transcript of testimony by Roscoe Turner before the CAB was filed by plaintiff on June 28, 1962. The CAB hearing had been held in October, 1957, and resulted in the revocation of TAC's air taxi ...