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Marshall v. First American Nat. Bank

JANUARY 15, 1968.

BURTON H. MARSHALL, SR., AND BURTON H. MARSHALL, JR., A MINOR, WHO SUES BY BURTON H. MARSHALL, SR., HIS FATHER AND NEXT FRIEND, PLAINTIFFS-APPELLANTS,

v.

FIRST AMERICAN NATIONAL BANK OF NASHVILLE, AND DIXIE REEVES BUTTS, EXECUTORS OF THE ESTATE OF MACON COOPER BUTTS, DECEASED, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County, Twentieth Judicial Circuit; the Hon. JAMES W. GRAY, Judge, presiding. Judgment reversed and cause remanded.

MORAN, J.

Plaintiffs appeal from a judgment of the Circuit Court of St. Clair County denying their motion for a judgment notwithstanding the verdict and their alternative motion for a new trial.

This action arose out of a plane crash that occurred on September 7, 1963, near Lakeside Airport in Madison County, Illinois. The flight originated at Nashville, Tennessee. There were four people in the plane: Macon Butts, the pilot and owner of the craft, Virgil Holmes, Burton Marshall, Sr., and Burton Marshall, Jr. Butts and Holmes were killed and the Marshalls were injured.

Plaintiffs alleged in their complaint that they were fare-paying passengers in the plane and that the crash was caused by the negligence of the defendant, Macon Butts. They confined their charge of negligence to pilot error. Defendants claim that plaintiffs were not fare-paying passengers and that they would not be liable in the absence of proof of wilful and wanton misconduct. *fn1 Defendants also claimed that the crash was caused by airplane malfunction rather than pilot error.

The case was tried to a jury and a verdict was rendered in favor of the defendant. The trial court denied plaintiffs' post-trial motion for a judgment notwithstanding the verdict and for a new trial. Plaintiffs appeal.

Appellants contend that their status in the aircraft is governed by the laws of Tennessee. This contention was not made in the trial court so it will not be considered on this appeal. Woman's Athletic Club of Chicago v. Hulman, 31 Ill.2d 449, 202 N.E.2d 528. Appellants also contend that the trial court erred in giving an interrogatory that required an answer only if the jury first found a verdict in favor of plaintiffs. This would have been a sound contention had appellants made their objection in the trial court. However, since this was not done, we will not consider this point on appeal. Woman's Athletic Club of Chicago v. Hulman, supra.

Appellants next contend that the trial court committed reversible error in permitting an instruction to go to the jury on the question of their status because they were passengers as a matter of law by reason of the undisputed testimony of Marshall, Sr. Whatever agreement existed to fly Marshall to Illinois was between Butts and Marshall and since Butts was dead, Marshall was the only one left who could testify on this point.

Marshall testified that he had been acquainted with the defendant, Macon Butts for about two or three years prior to the accident. This was a casual acquaintance which arose from meeting him at the Nashville Airport. Butts owned a Comanche Piper aircraft, but Marshall had never ridden with Butts prior to the time of the accident. Prior to September 7, 1962, Marshall and his son had flown Marshall's aircraft to Lakeside Airport but returned to Tennessee by automobile because of unfavorable weather conditions.

On the Wednesday evening before September 7, 1963, Marshall, Sr. asked Butts if he were going to do any weekend flying. He explained that he had left his plane in Illinois and that if Butts were going to do any flying, he would pay expenses and whatever was reasonable for Butts to fly him and his son to Illinois to pick up his airplane. He testified that Butts was agreeable to this arrangement and expressed an interest to do it in order to get some flying time in his airplane on cross-country flights, as he would like to gain some instrument time. He said the specific arrangement was that he was to pay for the gas, oil and any other reasonable cost that he felt Butts would want to charge. Although no specific dollar amount was agreed upon, he was to pay Butts the cost of the trip after they returned to Nashville. He testified that it would be impossible to calculate the cost of the trip accurately prior to that time. He further testified that Butts called him back on Friday evening and asked where he wanted to go. "I told him. He said he was going to do some flying Saturday morning and that if I would meet him at the airport we would make the trip. We also discussed the agreement that I was to pay expenses and whatever was normal."

On cross-examination Marshall, Sr. admitted that it was possible that he had told Butts that he did offer to pay part of the expenses or whatever was justified; it was possible that he had previously told a notary public that he would pay part of the expenses or whatever was justified; that there was no specific arrangement other than that he would pay the expenses and whatever was reasonable; that it was assumed that he would pay expenses there and back to Nashville, although there was nothing specifically said about the return trip; that there was no specific arrangement as to where or when payment was to be made.

Defendants argue that the omissions, discrepancies and improbabilities in the testimony of Marshall, Sr. made the status of plaintiffs a question of fact for the jury rather than a question of law for the court. Testimony of an unimpeached witness which is not in itself inherently improbable or false and which is not contradicted by positive testimony or circumstances intrinsic or extraneous cannot be rejected even by a jury. Larson v. Glos, 235 Ill. 584, 85 N.E. 926. However, in Hadley v. White, 367 Ill. 406, 11 N.E.2d 813, our Supreme Court said: "As this court has frequently pointed out, the testimony of a witness may contain, within itself, its own impeachment and he may be contradicted by what he states as well as by adverse testimony, and there may be so many omissions, discrepancies and improbabilities in his testimony as to justify a court or jury in disregarding it in its entirety." Id. at 412.

In our opinion, the testimony of Marshall, Sr., even though uncontradicted by any other witnesses, was so equivocal on the purported arrangement between Butts and Marshall, Sr. concerning payment for the trip, that the trial court was justified in submitting the question of plaintiffs' status to the jury. Marshall admitted there was no specific arrangement as to what expenses would be paid and that he had previously told a notary public that he would pay part of the expenses or whatever was justified.

Appellants next contend that the trial court committed reversible error in allowing two of defendants' witnesses to give expert testimony that the crash was caused by the elevator cables becoming jammed by the radio power packs prior to the crash. These packs are about the size of automobile batteries and mounted above the elevator cables.

The first expert witness for the defendant was Charles Midyett, a licensed pilot. A lengthy hypothetical was posed to him regarding facts relevant to the issue but concluded that the statement: "Assuming . . . that it (the power packs or electrical equipment) did interfere with the operation of the elevator cables in such a manner that the elevator cables were jammed. . . ." His answer indicated that the power packs might or could have fallen on the cables while the plane was in flight. On ...


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