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Stough v. North Central Airlines

JANUARY 25, 1965.

JAY STOUGH AND CONTINENTAL ILLINOIS NATIONAL BANK, AS EXECUTOR OF THE ESTATE OF EUNICE STOUGH, PLAINTIFFS-APPELLANTS,

v.

NORTH CENTRAL AIRLINES, INC., DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. HARRY G. HERSHENSON, Judge, presiding. Affirmed.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

Plaintiffs, Jay Stough and his wife, Eunice, brought suit against defendant, North Central Airlines, Inc., charging that defendant (1) by wrongfully refusing to transport them from Milwaukee to Rhinelander, Wisconsin, was guilty of giving or causing undue and unreasonable preference or advantage to other passengers contrary to Sec 484(b) of the Civil Aeronautics Act of 1938, and (2) was guilty of maliciously and wilfully refusing to allow plaintiffs to board its plane at Milwaukee for Rhinelander.

Plaintiffs sought damages for humiliation and outrage because they were compelled to spend sums in securing other transportation to Rhinelander from Milwaukee as well as for their return from Rhinelander to Chicago, and because defendant still retained all the money paid to it by plaintiffs for the round trip transportation. In connection with the charge of malicious and wilful conduct, plaintiffs sought punitive and exemplary damages from the defendant.

Defendant denied the charges and pleaded that all actions taken by it were in compliance with the tariffs and procedures to which it was subject.

The cause went to trial before a jury which returned a verdict in favor of defendant and answered a special interrogatory submitted by defendant finding that it was not guilty of maliciously and wrongfully refusing to allow plaintiffs to board its flight 901 from Milwaukee to Rhinelander. From a judgment on the verdict the plaintiffs appeal.

The facts, in the main, are undisputed. On July 30, 1957 plaintiff Jay Stough purchased for himself and his wife two tickets from defendant airline for round trip flight beginning on August 30, 1957, between Chicago, Illinois and Rhinelander, Wisconsin. The flights each way were to be made on two planes with change over in Milwaukee, Wisconsin.

On August 30, plaintiffs boarded defendant's plane, flight number 905, at Chicago O'Hare Airport on the first leg of their journey. Their baggage was checked right through and they were told that when their flight arrived in Milwaukee they would merely deplane from flight 905 and board their connecting flight 901. Plaintiffs arrived at Milwaukee Airport at 12:04 p.m. Central Standard Time.

The connecting flight 901 also had originated in Chicago, but at Chicago Midway Airport. It arrived at Milwaukee Airport at 12:53 p.m., Central Standard Time, forty-five minutes late. It was a DC-3 plane having a maximum seating capacity of twenty-six passengers. Twenty passengers flew from Midway and three of them deplaned at Milwaukee.

When flight 901 arrived at Milwaukee plaintiffs had been waiting there for approximately fifty minutes. Prior to the arrival of flight 901 plaintiff, Jay Stough, had inquired at the defendant's ticket counter in Milwaukee about the connecting flight to Rhinelander and was twice told that the flight was not ready and that it would be announced. Plaintiffs went to other parts of the airport and did not hear the flight announced. When they went to the ticket counter for the third time they were informed that they would not be permitted to board the flight. While they were speaking to the girl at the counter two men, who had tickets for that flight, presented the tickets and were permitted to board. Four others had already boarded the flight which then left with twenty-three passengers.

Because of weather conditions ahead, the plane was limited, by federal regulations, to a maximum gross weight of 25,346 pounds. The flight took off with twenty three passengers, having an actual gross weight of 25,308 pounds. *fn1

When plaintiffs were informed that they could not board flight 901 they asked the girl at the counter for their baggage. After some phoning, their baggage was returned to them. The girl then arranged for them to fly by alternate route via Green Bay, Wisconsin. They boarded about an hour later and upon landing at Green Bay were told that defendant's agents could give no assurance regarding the connecting flight to Rhinelander. Thereupon plaintiffs rented an automobile and drove to their destination. They arrived there about 7:30 or 8:00 p.m. The flight from Milwaukee usually arrived about 2:30 or 3:00 p.m.

In addition to the expense incurred in renting the automobile for the drive from Green Bay to Rhinelander, plaintiffs made a long distance call to friends awaiting their arrival. Plaintiffs further refused to avail themselves of the return portion of the flight tickets and returned to Chicago by automobile. They did not return or tender the return tickets to defendant for refund.

Plaintiffs concede that defendant had a right to reduce its passenger flight capacity in the interest of safety and in order to take on additional fuel, but they contend the airline had no right to "bump" them and allow two other passengers, who purchased their tickets on the morning of the flight, to take precedence.

Kenneth Hubertus, an employee of defendant, testified that it was the Airline's practice or procedure at that time "(i)nsofar as the passenger was concerned, if you were not able to accommodate all the passengers involved you would take off or ...


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