These actions are based upon the alleged negligent operation by the defendant Finley of an airplane owned by the corporate defendant but hired by Finley for his own purposes. Counts based upon alleged wilful, wanton
There was evidence of the tenor following: The plaintiff was instructing his student how to fly the plaintiff's plane in a rectangular course around a certain field, when the plane operated by Finley appeared upon the scene. Finley made movements toward the plaintiff's plane. He "dove down toward the plaintiff's plane" and appeared to pass underneath it. He made "at least two passes like that, go in, come out under him." He came "back again on him from the back." "The first thing ... [the witness, an observer on the ground, knew, the plaintiff's plane] had rolled over and crashed." The last time the Finley plane went toward the plaintiff's plane, the plaintiff's plane took a course down — "kind of pressed downwards." According to the plaintiff's own testimony the Finley plane was at one time less than fifty feet from the plaintiff's plane. At another time it was in the neighborhood of a hundred feet. Just before the crash the student, who was sitting beside the plaintiff, with a window at her right, screamed "Here he comes." She seized the controls, pulled the plane into a climb, and "froze on the controls." The plane lost speed, went into a spin, and crashed before the plaintiff could completely regain control.
2. The evidence plainly warranted a finding that Finley's conduct was negligent in that it placed the plaintiff in substantial and unnecessary peril. The jury could find that just before the accident Finley was again aiming his plane toward that of the plaintiff. The exclamation of the student, taken in connection with the plaintiff's testimony that the student immediately "froze" upon the controls and brought about the crash, warranted a further finding that the negligence of Finley set off a direct chain of causation that ended in the plaintiff's injury. The jury could find that the involuntary act of the student, terrorized as they could believe she was by Finley's act, was not an independent intervening cause but was merely one link in the chain. It is not necessary that the exact manner in which the negligent act causes injury be foreseeable. Leveillee v. Wright, 300 Mass. 382, 389, and cases cited. The case falls within the sweep of such leading cases as Ogden v. Aspinwall, 220 Mass. 100, Leahy v. Standard Oil Co. of New York, 224 Mass. 352, 359, 361, Morrison v. Medaglia, 287 Mass. 46, and Wallace v. Ludwig, 292 Mass. 251, 254. See Restatement: Torts, § 433, comment e.
3. Finley is not relieved of responsibility for his own negligence by reason of a rule of the Massachusetts aeronautics commission made under the provisions of G.L. (Ter. Ed.) c. 90, § 39, as appearing in St. 1939, c. 393, § 3. (See now St. 1946, c. 583, § 3.) This rule, according to the record, read, "4. Authority of Pilot. The pilot in command of an aircraft shall be directly responsible for its safe operation."
4. The plaintiff was not as matter of law barred of recovery by reason of violation of G.L. (Ter. Ed). c. 90, § 47, as appearing in St. 1939, c. 393, § 3. That section provides that "no person shall operate or navigate any aircraft in this commonwealth unless such person is the holder of an appropriate effective pilot's license, permit or certificate" issued by the civil aeronautics authority of the United States; "provided, that this restriction shall not apply to ... any person piloting an aircraft which is equipped with fully functioning dual controls when a certificated instructor is in full charge of one set of said controls and such flight is solely for instruction...." It was agreed that the plaintiff had been certified by the Federal civil aeronautics authority as a commercial pilot, but that he did not have an instructor's rating, and, as we understand the exhibits which are part of the record, it appeared that, although he was a resident of Massachusetts, he did not until after the accident register his Federal airman's certificate as required by G.L. (Ter. Ed.) c. 90, § 49, as appearing in St. 1939, c. 393, § 3. These provisions of law relate wholly to the licensing of operators and to the registering in this Commonwealth of licenses or certificates granted by Federal authority. Ever since Chief Justice Knowlton analyzed the subject in Bourne v. Whitman, 209 Mass. 155, it has been the law in this Commonwealth that the failure to have any operator's license at all does not render the driver of an automobile a trespasser on the highway but is merely evidence of negligence "unless in the case of the plaintiff, it is shown to be a contributing
5. We cannot agree with the defendants that the plaintiff's plane was a trespasser in the air and a nuisance because of any failure to register in this Commonwealth the Federal certificate for this plane as required by G.L. (Ter. Ed.) c. 90, § 49, as appearing in St. 1939, c. 393, § 3. It can hardly be said that a plane is unregistered, like an unregistered automobile, merely because its Federal certificate has not been recorded or registered in this Commonwealth. But apart from this the analogy in this matter between automobiles and aircraft fails. The peculiar rule that an unregistered automobile is a trespasser on the highway and a nuisance, as first announced by a divided court in Dudley v. Northampton Street Railway, 202 Mass. 443, was expressly rested upon the categorical prohibition in the pertinent statute of the operation upon any highway of any unregistered automobile. See 202 Mass. at page 447, and Bourne v. Whitman, 209 Mass. 155, at pages 171-172. No equivalent prohibition exists with reference to the operation of Federally certified aircraft whose certificates have not been registered in this Commonwealth. On the contrary, the prohibition, found in c. 90, § 48, as appearing in St. 1939, c. 393, § 3, is against the operation of aircraft that have not been licensed or certified and registered by the civil aeronautics authority of the United States or other proper licensing authority. It is apparent throughout §§ 47, 48, and 49, that the Federal licenses, permits, or certificates both of pilots and of aircraft are regarded as controlling in the interest of uniformity and of aeronautical progress. The State merely registers for its own convenience the certificates granted its residents by Federal Authority.
6. Evidence that, when Finley returned after the accident to the place of business of the corporate defendant from which he had hired the plane he was driving, he gave his name as Johnson would be competent against him as indicating consciousness of liability on his part. Hall v. Shain, 291 Mass. 506, 512-513. Sheehan v. Goriansky, 317 Mass. 10, 16-17. Whether the evidence introduced at the trial was sufficient to warrant a finding that Finley himself did give the name of Johnson need not be determined in the present posture of the case. The evidence on this point may be different at another trial.
7. We are compelled, however, to hold that there was error in receiving and recording the "verdicts." The jury were sent out on April 29, 1948. They agreed at approximately 9 P.M. of that day. At about six o'clock on the following morning, April 30, one of the panel, not the foreman, died. At the opening of court at ten o'clock on that day the judge, presumably in the presence of the remaining eleven jurors, and against the objection and exception of the defendants, received and recorded sealed "verdicts," which we assume were prepared, signed, and sealed before the jury separated the night before. The sealed "verdicts" were verified in open court by the assent of only eleven jurors. These were not the verdicts of a jury of twelve men. In Lawrence v. Stearns, 11 Pick. 501, where the jury had come to an agreement during the evening and had been permitted to separate, and where, upon their reassembling the following morning, one of the jurors who had previously agreed stated that upon more mature consideration he was unable to assent, this court, speaking through Chief Justice Shaw, said, "The only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be rendered, is an open
8. In the action against the corporation, the error in receiving the "verdicts" with leave reserved, upon which the judge subsequently entered verdicts for the defendant, did not affect the result since, in any event, verdicts ought to have been directed for the defendant at the close of the evidence. There was no evidence whatever that Finley was operating the plane of the corporate defendant as its agent, or in its behalf, or otherwise than for his own benefit as the hirer of it. The plaintiff contends that G.L. (Ter. Ed.) c. 231, § 85A, applies so that registration in the name of the corporate defendant was "prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible." But this statute applies only to actions "arising out of an accident or collision in which a motor vehicle was involved," and in our view an airplane is not a "motor vehicle" within the meaning of this section. No doubt in a sense an airplane is a vehicle, and it contains a motor, but the words "motor vehicle" had been defined in our statutes as early as 1902 in terms referring only to surface vehicles. St. 1902, c. 315, § 4. A similar definition has remained continuously upon the statute book since St. 1909, c. 534, § 1. See now G.L. (Ter. Ed.) c. 90, § 1, as amended. Registration of aircraft was required by St. 1913, c. 663, § 2. Provisions relating to aircraft have always been separate from those relating to surface vehicles, and when definitions were introduced into the laws relating to aeronautics, a definition of the word aircraft was included. St. 1928, c. 388, § 1. See now G.L. (Ter. Ed.) c. 90, § 35, as appearing in St. 1946, c. 507. In our opinion, when what is now G.L. (Ter. Ed.)
9. There was no error in the denial of the plaintiff's motion, filed after trial, to amend his declaration against the corporate defendant in such a manner as to shift the alleged ground of liability.
We have dealt with all exceptions which it is necessary to deal with in reaching the present decision and also with such questions as seem likely to arise at a second trial.
In the action of Rich v. Finley the defendant's exceptions are sustained.
In the action of Rich v. Standard Air Service, Inc., the plaintiff's exceptions are overruled, and in accordance with a statement in the defendant's brief in that case that its exceptions are to be waived if the plaintiff's exceptions are overruled, the defendant's exceptions are treated as waived, and are dismissed. Judgment is to be entered for the defendant.