Opinion
No. 39695.
June 13, 1955.
1. Municipalities — damages to plaintiff's airplane — evidence — negligence — jury issues.
In suit against city, which maintained airport, for damages to plaintiff's airplane, evidence was sufficient to take to jury questions whether plaintiff's husband had delivered the airplane to city, whether city's employees had parked it and tied it down, and whether city negligently used defective ropes in tying it down.
2. Municipalities — authority to operate airport — ancillary powers.
Where power to maintain and operate airport was expressly vested in city, city had, as necessary and ancillary thereto, power to contract with owners of airplanes to furnish them parking and tying-down facilities at airport, and general manager of airport had power to make a valid bailment and service contract. See 7338, Code 1942.
3. Municipalities — city liable for employees' negligence — in tying down plane — with defective ropes.
Where general manager of city's airport had power to make contract, on behalf of city, to park and tie down airplanes, city was liable for negligence of its employees in tying down plane with rotten and worn-out ropes, as a consequence of which airplane was damaged.
4. Negligence — act of God.
No one is liable for an injury proximately caused by an act of God which is an injury due directly and exclusively to natural causes without human intervention, and which could not have been prevented by exercise of reasonable care and foresight.
5. Municipalities — evidence — accident due to city's negligence — in failing to provide adequate ropes.
Evidence in such case was sufficient to sustain finding that accident could have been prevented by exercise of reasonable care and foresight on part of city in providing adequate ropes, and that accident was not due exclusively to natural causes.
Headnotes as revised by Ethridge, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
E.W. Stennett, W.T. Neely, Jackson, for appellant.
I. The Court should have sustained the defendant's motion for a directed verdict and should have granted defendant the peremptory instruction requested by it for the reason the plaintiff fails to prove a contract with the defendant municipality. Kidder v. McClanahan, 126 Miss. 179, 88 So. 508; Sec. 4048, Code 1942.
II. The Court should have sustained the defendant's motion for a verdict and should have granted the defendant the peremptory instruction requested by it for the reason that the plaintiff failed to prove negligence on the part of defendant City. Black v. Stone County Lumber Co., 216 Miss. 844, 63 So.2d 405.
III. The Trial Court should not have refused Instruction No. Three requested by appellant announcing the law relative to type of ropes required to be used by the defendant City. Illinois Cent. R.R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Mauney v. Gulf Rfg. Co., 193 Miss. 421, 9 So.2d 780.
IV. The Court should have sustained appellant's motion for a new trial for the reason that the verdict is not supported by the evidence and is against the clear preponderance of the evidence, and for other causes shown on the motion. Fore v. Illinois Cent. R.R. Co., 173 Miss. 451, 160 So. 903; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756.
Jackson Ross, Jackson, for appellee.
I. The City of Jackson was liable to Mrs. Brummett for any negligence in allowing her airplane to be damaged while in its possession. Brummett v. City of Jackson, 211 Miss. 116, 51 So.2d 52; C.L. Gray Lumber Co. v. Shubuta Motor Co., 169 Miss. 393, 153 So. 155; Columbus G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Coulson v. Stevens, 122 Miss. 797, 85 So. 83; Meridian Star v. Kay, 211 Miss. 536, 52 So.2d 35; Ogden v. Transcontinental Airport, 39 Ohio App. 301, 177 N.E. 536; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Seward v. First Natl. Bank in Meridian, 193 Miss. 656, 8 So.2d 236; Tarver v. J.W. Sanders Cotton Mill, 187 Miss. 111, 192 So. 17; Woodson v. Hare, 244 Ala. 301, 13 So.2d 172; Yazoo M.V.R.R. Co. v. Hughes, 94 Miss. 242, 47 So. 662; Sec. 1455, Code 1942; 2 Am. Jur., Secs. 101-03 p. 82, et seq.; 6 Am. Jur., Secs. 75, 84 pp. 230, 236; Griffith's Outlines of the Law (Miss.), p. 122; Mississippi Digest, Evidence, Key No. 597.
II. Appellee's proof of negligence was ample for consideration by the jury. C R Stores v. Scarborough, 189 Miss. 872, 196 So. 650; City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So.2d 368; Gardner v. Alderman (Miss.), 13 So.2d 39; Hornsby v. Logaras, 210 Miss. 512, 49 So.2d 837; Jefferson v. Yazoo M.V.R.R. Co., 194 Miss. 729, 11 So.2d 442; Kirkpatrick v. Love, 220 Miss. 174, 70 So.2d 321; Loper v. Yazoo M.V.R.R. Co., 166 Miss. 79, 145 So. 743; Smith v. Farmers Ginning Assn., 201 Miss. 575, 29 So.2d 663; Sovereign Camp, W.O.W. v. Banks, 177 Miss. 279, 170 So. 634; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; 6 Am. Jur., Bailment, Sec. 399 p. 482; 38 Am. Jur., Negligence, Sec. 352 p. 1060.
III. There was no error in refusal of appellant's Instruction No. Three. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; City of Hattiesburg v. Hillman, supra; Rex Nitrogen Gas Co. v. Hill, 213 Miss. 698, 57 So.2d 173; Mississippi Digest, Trial, Key No. 252(1).
APPELLANT IN REPLY.
I. There can be no implied contract on the part of municipalities in the State of Mississippi. Adalian Bros. v. City of Boston, 84 N.E.2d 35; American La-France Fire Engine Co. v. Borough of Shenandoah, 115 F.2d 866; Attala County v. Mississippi Tractor Equipment Co., 162 Miss. 564, 139 So. 628; Bituminous Cas. Corp. v. City of Harrisburg, 315 Ill. App. 243, 42 N.E.2d 971; Bride v. City of Slater, 263 S.W.2d 22; Brummett v. City of Jackson, 211 Miss. 116, 51 So.2d 52; Chandler Chandler v. City of Shreveport (La.), 162 So. 437; Cincinnati Ry. Co. v. City of Lexington, 86 F. Supp. 913; City of Wellston v. Morgan, 62 N.E. 127; Colle Towing Co., Inc. v. Harrison County, 213 Miss. 442, 47 So.2d 171; Edwards Hotel Co. v. City of Jackson, 96 Miss. 547, 51 So. 802; Louisville Extension Water Dist. v. Sloss, 236 S.W.2d 265; Miller v. McKinnon, 124 Pa.2d 34, 140 A.L.R. 570; Roemheld v. City of Chicago, 231 Ill. 467, 83 N.E. 291; Sagarese v. Morristown, 99 A.2d 533; Sorensen v. City of New York, 99 F. Supp. 411; Thornhill v. Ford, 213 Miss. 49, 56 So.2d 23; Village of Eastlake v. Davis, 114 N.E.2d 627; Wacker-Wabash Corp. v. City of Chicago, 112 N.E.2d 903; Secs. 3803-04, 3816, 4048, Code 1942; 63 C.J.S., Municipal Corporations, Sec. 983 p. 544; 84 L.R.A. 954; Vol. X, McQuillin on Municipal Corporations (3rd ed.), Sec. 29.112.
This is a suit against a municipality for its alleged negligence in parking and tying down an airplane at its airport, as a result of which the plane was damaged when the ropes securing it broke during a heavy wind and the plane turned over.
Appellant, City of Jackson, owns and operates the Jackson Municipal Airport, known as Hawkins Field. The City equipped, and maintains and operates the airport under the authority of Code of 1942, Sec. 7538. Appellee, Mrs. Gladys Roper Brummett, plaintiff below, owned a Cessna Model No. 170 airplane, which she parked at the airport. The manager of the airport was Bob Neblett. Neblett, acting for the City, made an oral agreement with appellee and other owners of airplanes to furnish them a parking place for their planes, to the east of the administration building, and to furnish "tie-down service" for such planes. The jury was warranted in finding that before May 30, 1949, appellee's plane had been parked and tied down in the designated area by a city employee. This was done by the use of three ropes, one each from the right and left wings and another rope at the rear of the plane. These were tied to three ushaped steel bars embedded in the concrete.
In the late afternoon of May 30, 1949, with very little warning, the wind increased in velocity from 7 mph to 45 mph, and, according to the U.S. Weather Bureau Station located at the airport, there were wind gusts up to 65 miles per hour. According to appellee's witnesses the ropes which had been used by appellant's employee to tie her plane down were rotten and worn-out. Appellant's evidence was to the contrary, but this made an issue for the jury. The jury was warranted in finding that as a result of the rotten and worn-out condition of the ropes, the plane was broken aloose from its moorings, and blown over and upon another plane parked nearby. None of the other seven planes parked in the immediate area and tied down by appellant was damaged, although two of the ropes were broken on one and one rope on another. There was also a conflict in the evidence as to the velocity of the wind. The jury had the right to accept the report of the U.S. Weather Bureau.
(Hn 1) Issues properly submitted to the jury were whether appellee's husband had delivered the airplane to appellant, whether appellant's employee had parked and tied it down, and whether appellant negligently used defective ropes in tying down the plane.
Appellant argues that appellee failed to prove that she had a valid parking and tie-down contract with the City; that the agreement, if any, was oral and made with Neblett, manager of the airport; that appellee did not show that Neblett was authorized by ordinance of the City Council to make such agreements; and that there can be no implied power in Neblett to contract for the City. This case was first before the Court in 1951, in Brummett v. City of Jackson, 211 Miss. 116, 51 So.2d 52. The circuit court had sustained the City's pleas in bar that it had no power or authority to make a tie-down contract, and that even if it did, the City had relieved itself of liability by declaring in an ordinance and by a notice posted at the field that the City was not responsible for loss of property. It was held that Code Sec. 7538 gave municipalities the power to acquire, equip and maintain an airport, and this included the authority to "operate for income"; that in the operation of the airport the City was acting in corporate and not a governmental capacity; and that plaintiff had not made any contract to relieve the City of liability for negligence.
(Hn 2) The power to maintain and operate an airport being expressly vested in appellant, we think that such power would also include, as necessary and ancillary thereto, the power to contract with owners of airplanes to furnish them parking and tying-down facilities at the airport. It is undisputed that Neblett was the general manager of the airport for appellant. So for these reasons the appellant's agreement with appellee to park and tie down her plane was a valid bailment and service contract. (Hn 3) And when the bailee City, acting in its corporate capacity, negligently tied down the plane with rotten and worn-out ropes, it became liable for damages resulting from such negligence.
(Hn 4) Appellant argues that the sole, proximate cause of the damage to the plane was an act of God, a sudden, extraordinary and unprecedented wind. No one is liable for an injury proximately caused by an act of God, which is an injury due directly and exclusively to natural causes without human intervention, and which could not have been prevented by the exercise of reasonable care and foresight. But an act which may be prevented by the exercise of ordinary care is not an act of God which would immunize a tort-feasor from liability. City of Hattiesburg v. Hillman, 76 So.2d 368, 370 (Miss. 1954). (Hn 5) The jury was amply warranted in finding that the damage to appellee's airplane was not due exclusively to natural causes, and that it could have been prevented by the exercise of reasonable care and foresight on the part of the City in providing adequate ropes to tie the plane down and by the exercise of ordinary care in that respect. There is no merit in the other assignments of error.
Affirmed.
Roberds, P.J., and Lee, Arrington and Gillespie, JJ., concur.