IN THE SUPREME COURT
A. Stephen McDANIEL, Administrator of Estate of
Speaks, Deceased; Southern Institute of Aviation,
d/b/a Memphis Jet Center; Memphis Aviation, Inc.,
Memphis Jet Center; and J.B. Gaiennie
Glenda J. RITTER and Rebecca F. Ritter
ROBERTSON, Justice, for the Court:
Today's appeal arises from the fatal flight of a Memphisbased
Beechcraft Bonanza B36 airplane which experienced severe icing
and crashed near Joplin, Missouri, killing pilot and passenger.
The passenger's survivors have brought a wrongful death action in
this state, suing the estate of the deceased pilot and everyone
else in sight. Apparently crediting an assumption of risk defense
theory, the jury found for the four defendants who had not been
dismissed summarily. In due course, the trial judge held that he
had erred in submitting the issue of assumption of risk to the jury
and granted a new trial.
Believing the interests of litigant and judicial economy may be
served thereby, we accepted Defendants' interlocutory appeal to
settle the controlling issues of law prior to retrial. We affirm
in part and reverse in part.
The facts of the case are relatively simplethe cast of
characters and reach of potential liability and identification of
law governing same quite complex.
The Plaintiffs are (1) Glenda J. Ritter, second wife of Jack Ritter,
Jr., married to him at the time of the fatal accident and a resident
of Olive Branch, Mississippi; (2) the minor children of Jack Ritter,
Jr., who all live in Holly Springs, Mississippi, represented by
their mother, Rebecca F. Ritter, divorced from Jack in 1979. Plaintiffs
are Ritter's personal representatives, Miss.Code Ann. s 11713
(Supp.1989), and are Appellees here.
Appellants today, and among the corporate and individual parties
originally named as Defendants (FN1) in this action are: (1) A.
Stephen McDaniel, Administrator of Estate of Alton Jerry Speaks,
deceased, who was alleged to be the pilot of the aircraft at the
time of the accident; (2) Southern Institute of Aviation, Inc. d/b/a
Memphis Jet Center (hereafter "SIA"), a Tennessee corporation
with its principal place of business in Memphis, the aircraft charter
company which had rented the plane to Speaks and Ritter; (3) Memphis
Aviation, Inc., d/b/a Memphis Jet Center, a Tennessee corporation
affiliated with SIA and responsible for the maintenance of the Memphis
Jet Center charter fleet of aircraft; and (4) J.B. Gaiennie, a Memphis,
Tennessee resident, the owner of record of the Beechcraft Bonanza.
Jack Ritter and Alton Jerry Speaks were marketing agents (salesmen)
for various agricultural supply and leasing corporations, some of
which were partially owned by Speaks. Ritter was a resident citizen
of Olive Branch, whose base of business operations lay in Memphis.
Speaks was a resident citizen of Memphis, where he had his business
base as well. Both held pilot's licenses, although Speaks was by
far the more experienced of the two.
On March 19, 1984, Speaks rented a Beechcraft Bonanza aircraft from
SIA in Memphis and flew Ritter and himself to Springfield, Missouri.
Later the same day, their business in Springfield completed, the
two decided to fly to nearby Joplin some thirty minutes away for
a social visit to Speaks' motherinlaw. They departed Springfield
without obtaining a full weather briefing. En route, the Beechcraft
Bonanza B36 experienced severe icing conditions, became weighted
down by "rime ice" (a particularly dangerous form of frozen
froth), and crashed while attempting to land near Joplin, killing
the two men.
Ritter's survivors commenced this wrongful death action on November
2, 1984 in the Circuit Court of Hinds County. Plaintiffs charged
Speaks with negligent aviation and demanded judgment of and from
his estate. Plaintiffs further charged liability on the part of
SIA, Memphis Aviation, and Gaiennie upon the allegations that these
corporate and individual owners were negligent in the lease, maintenance
and ownership of the crashed aircraft. In addition, Plaintiffs alleged
that Miss.Code Ann. s 61111, et seq. (1972) and the Federal
Aviation Act of 1958, 49 U.S.C.App. s 1301 et seq. (1970), impose
strict vicarious liability upon the owners and lessors of aircraft.
Trial began in the Circuit Court of Hinds County on May 18, 1987.
At the close of the evidence, the Circuit Court held Speaks negligent
in piloting the Bonanza, and that his negligence proximately caused
Jack Ritter's death. The Court granted Plaintiffs a directed verdict
on those issues. Rule 50(a), Miss.R.Civ.P.
Of significance was the Circuit Court's ruling on the defense of
assumption of the risk. The Court refused Plaintiffs' request for
a comparative negligence instruction, submitting to the jury only
whether Ritter had assumed the risk of injury or death by accompanying
Speaks into weather which he, as a pilot himself, must have known
to be dangerous. Both parties had drafted assumption of the risk
instructions. See Rule 3.09, Unif.Cir.Ct.Rules. The Court submitted
to the jury that offered by the Plaintiffs. In due course, the jury
returned a verdict for all Defendants. Plaintiffs timely moved for
a new trial, Rule 59, Miss.R.Civ.P., and the Court granted Plaintiffs'
motion, holding that it had erred in granting the assumption of
the risk instruction.
The Defendants then moved the Circuit Court to allow an interlocutory
appeal of all issues in the case which had been resolved adversely
to them. On January 26, 1988, the Circuit Court denied this motion.
The Defendants then petitioned this Court for leave to appeal the
Circuit Court's grant of a new trial, again raising the various
issues upon which they had not prevailed in their various summary
judgment motions. By order entered March 16, 1988, this Court granted
the interlocutory appeal.
At the outset, the Plaintiffs/Appellees, the Ritters, seek to limit
the issues presented for review. Their premise is that the order
granting the new trial is all that is the subject of this interlocutory
appeal. Since that order addressed only the assumption of the risk/comparative
negligence jury instructions, the appeal should be limited to those
issues, or so we are told. The Ritters rely upon the Circuit Court's
denial of the defendants' motion for interlocutory appeal relating
to the broader range of issues.
Our appellate jurisdiction extends to cases and not just issues.
While we normally limit our review to specific issues presented
by the parties, that limitation is one of expedition and not jurisdiction,
else how our familiar plain error rule. See Rule 28(a)(3), Miss.Sup.Ct.Rules;
and Rule 103(d), Miss.R.Ev. Interlocutory appeals are no different.
Interlocutory appeals are governed by Rule 5, Miss.Sup.Ct.Rules.
By its own terms Rule 5 does not require certification of the issues
by the lower court. The rule states:
An appeal from an interlocutory order may be sought if the order
grants or denies certification by the trial court that a substantial
basis exists for a difference of opinion on a question of law....
The Advisory Committee Comment to Rule 5 notes: "the rule contemplates
that either the trial court will grant an interlocutory appeal subject
to appellate review of that decision, ... or the Supreme Court will
grant the appeal itself." Under Rule 5, the scope of the issues
presented for appellate resolution is ordinarily and practically
restricted only by the contents of the petition presented to this
Court pursuant to Rule 5(b), not the order of the trial court. Moreover,
once a case becomes subject to our appellate jurisdiction, we have
authority to address all matters as may appear in the interests
of justice and economy. (FN2)
Of course acceptance of this appeal is not obligatory in any sense,
and for pragmatic reasons we deny most petitions for interlocutory
appeal. The grant of a new trial may not be appealed of right, as
there has been no final judgment. Maxwell v. Illinois Central Gulf
Railroad, 513 So.2d 901, 908 (Miss.1987); Bowman v. Rutledge, 369
So.2d 768, 769 (Miss.1979); Street v. Lokey, 209 Miss. 412, 413,
47 So.2d 816 (1950).
We have precedent of recent vintage for discretionary grant of an
interlocutory appeal from an order granting a new trial. Clark v.
Viniard By and Through Viniard, 548 So.2d 987, 988 (Miss.1989).
The parties have completed an expensive and time consuming trial
and face another. Difficult issues have been sharply contested.
Appellate consideration of those issues at this time likely will
"materially advance the termination of the litigation and avoid
exceptional expense to the parties." Rule 5(a)(1), Miss.Sup.Ct.Rules.
We have exercised our discretion, granted the interlocutory appeal,
and now consider and decide the issues discussed below.
The Defendant/Appellants argue that they may not be held subject
to in personam jurisdiction in Mississippi. Because of the disposition
we make of the case on other issues, (FN3) we need only consider
the point with respect to defendant/appellant Stephen McDaniel,
Administrator of the Estate of Alton Jerry Speaks, deceased.
Two distinct questions must be addressed. (FN4) First, we inquire
whether the estate of Speaks was amenable to suit here by virtue
of the Mississippi Long Arm Statute. Miss.Code Ann. s 13357
(Supp.1989). Assuming an affirmative answer there, the question
is whether the estate of Speaks may be amenable to suit in Mississippi
consistent with the due process clauses of the federal constitution,
and, as well, this state's constitution, that is, the familiar minimum
A. Mississippi Long Arm Statute
Section 13357, in relevant part, declares
Any nonresident person, firm, general or limited partnership,
or any foreign or other corporation not qualified under the constitution
or laws of this state as to doing business herein, who shall ...
do any business or perform any character of work or service in this
state, shall by such act or acts be deemed to be doing business
Any such nonresident is declared amenable to suit in Mississippi
"in any actions or proceedings accrued or accruing from such
act or acts, or as an incident thereto,...." [Emphasis supplied]
This latter clause will acquire significance below.
The Long Arm Statute specifically addresses the power of a Mississippi
court to gain in personam jurisdiction over a foreign executor or
Any such cause of action against any such nonresident, in the event
of death or inability to act for itself or himself, shall survive
against the executor, administrator, receiver, trustee, or any other
selected or appointed representative of such nonresident.
* * * * * *
The doing of such business, or the engaging in any such work or
service in this state, or the making of such contract, or the committing
of such tort in this state, shall be deemed to be a signification
of such nonresident's agreement that any process against it or its
representative which is so served upon the secretary of state shall
be of the same legal force and effect as if served on the nonresident
at its principal place of business in the state or country where
it is incorporated and according to the law of that state or country.
Miss.Code Ann. s 13357 (1972 & Supp.1989) [emphasis
The use of the word "representative" (1) encompasses executors
and administrators of an estate and (2) contemplates that the actions
of a decedent during his lifetime which would have rendered him
amenable to suit here will similarly subject his administrator or
executor (i.e. his personal "representative") to in personam
jurisdiction in Mississippi.
Such a view is consonant with the Restatement (Second) of Conflict
of Laws, s 358 (1971) which declares:
An action may be maintained against a foreign executor or administrator
upon a claim against the decedent when the local law of the forum
authorizes suit in the state against the executor or administrator
(a) suit could have been maintained within the state against the
decedent during his lifetime because of the existence of a basis
of jurisdiction other than mere physical presence, or
(b) the executor or administrator has done an act in the state in
his official capacity.
Determinations of whether a defendant is "doing business"
within the state proceeds on an ad hoc basis. Miss Cal 204, Ltd.
v. Upchurch, 465 So.2d 326, 330 (Miss.1985); S & A Realty Co.
v. Hilburn, 249 So.2d 379, 382 (Miss.1971). Our review of jurisdictional
issues is essentially de novo: "In making this determination,
this Court is in the same position as the trial court, since all
facts are set out in the pleadings or exhibits, and the chancellor
may be reversed if he erred whether the error was manifest or not."
Miss Cal, 465 So.2d at 330.
The record reflects that
(1) Speaks was a native Mississippian, although he was a citizen
of Tennessee at all times relevant hereto.
(2) Speaks had incorporated Consolidated Enterprises, Inc. as a
Mississippi corporationthis corporation was Ritter's employer.
(3) Speaks had entered into a partnership, S & S Enterprises,
which conducted business in Mississippi and owned land near Sardis,
(4) He was a principal stockholder of Consolidated Agri Leasing,
a Tennessee corporation which is qualified to do business in Mississippi
and which in fact does conduct business here.
Speaks was doing business in Mississippi in the sense that he did
various acts here for the purpose of realizing a pecuniary benefit
or otherwise accomplishing an object. Restatement (Second) of Conflict
of Laws s 35, Comment a (1971). Though his domestic and business
residences were in Memphis, Speaks' presence within Mississippi
was of such a continuing and substantial a nature that we regard
him doing business here within the meaning and contemplation of
We are told that in personam jurisdiction over Speaks' Estate must
nevertheless fail for lack of a sufficient nexus between Speaks'
Mississippi activity and the Ritters' claim. The long arm statute
requires no direct nexus to the nonresident's business done
here, only that the claim be incident thereto. The statute thus
requires far less than that the liability generating conduct have
occurred in Mississippi. Here we focus upon Consolidated Enterprises,
Inc., a Mississippi corporation, organized by Speaks and of which
Speaks was the principal shareholder. Consolidated is engaged in
the business of leasing dairy cows to farmers and has an office
in Columbus, Mississippi. Speaks was a director and officeran
employee, if you willof the corporation which paid him
a salary. Consolidated Enterprises also employed Ritter. Speaks'
and Ritter's trip to Missouri (though not necessarily to Joplin)
was on behalf of Consolidated. The fatal crash occurred before their
return to Memphis.
On these facts, we hold the Plaintiffs Ritter's claim to have arisen
out of facts sufficiently incident to business done by Speaks in
Mississippi that Speaks' estate is amenable to suit here under Section
B. Minimum Contacts/Due Process
The general principle regarding the exercise of jurisdiction over
a nonresident is that he "may not be subjected to a litigation
in a foreign jurisdiction unless he has 'certain minimum contacts
with it such that the maintenance of the suit does not offend the
traditional notions of fair play and substantial justice'. International
Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.
95, 102 (1945)." Administrators of the Tulane Ed. Fund v. Cooley,
462 So.2d 696, 702 (Miss.1984). These contacts must amount to something
more than occasional "fortuitous" instances where the
defendant had in the past come into some casual, isolated contact
with an instate resident. Cooley, 462 So.2d at 703 (citing
Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct.
559, 566, 62 L.Ed.2d 490, 500 (1980))
"Purposeful activity" by a nonresident in the forum
state may subject him to in personam jurisdiction there. If a nonresident
corporate or individual defendant has "purposefully availed
itself of the privilege of conducting activities within the forum
state", then it is considered not "unfair" that the
nonresident's important rights be adjudged in that forum. Hanson
v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283,
1298 (1958). See Wilkinson v. Mercantile National Bank, 529 So.2d
616, 61820 (Miss.1988); Anderson v. Sonat Exploration Co.,
523 So.2d 1024, 102627 (Miss.1988).
We perceive no constitutional imperative that the action arise out
of the nonresident defendant's contacts/activities in this
state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408,
414, 104 S.Ct. 1868, 80 L.Ed.2d 404, 411 (1984); Perkins v. Benquet
Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485
(1952); Administrators of the Tulane Educational Fund v. Cooley,
462 So.2d 696, 703 (Miss.1984). All that is required is that the
nonresident defendant have continuous and systematic general
contacts with this state. See Restatement (Second) of Conflict of
Laws s 35(3) (1971). In the latter years of his life, Speaks had
such Mississippi contacts.
The Circuit Court did not err in holding the Estate of Speaks subject
to in personam jurisdiction in this state.
Points of personal jurisdiction settled, we turn to questions of
choice of substantive law. By order dated May 12, 1987, the Circuit
Court granted Plaintiffs' motion that Mississippi law be applied
to all aspects of the case. Defendants had opposed the motion, contending
that Tennessee law was applicable, as that state had the most significant
relationship to both the events giving rise to the lawsuit and the
parties involved. Defendants reassert the point on appeal.
Since Craig v. Columbus Compress & Warehouse Co., 210 So.2d
645, 649 (Miss.1968) and Mitchell v. Craft, 211 So.2d 509 (Miss.1968),
Mississippi has ascribed to the most significant relationship test
embodied in the Restatement (Second) of Conflicts of Law. (FN5)
This general view has been reaffirmed in a number of cases, culminating
in Boardman v. United Services Automobile Association, 470 So.2d
1024 (Miss.1985); see also White v. Malone Properties, Inc., 494
So.2d 576, 578 (Miss.1986). Nothing in Williams v. Taylor Machinery,
Inc., 529 So.2d 606, 609 (Miss.1988), or Shewbrooks v. A.C. &
S, Inc., 529 So.2d 557, 56468 (Miss.1988) suggests a differing
view on any of the choice of law issues presented today.
The Restatement (Second) s 145 governs choice of law questions in
tort actions and provides:
(1) The rights and liabilities of the parties with respect to an
issue in tort are determined by the local law of the state which,
with respect to that issue, has the most significant relationship
to the occurrence and the parties under the principles stated in
(2) Contacts to be taken into account in applying the principles
of s 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation
and place of business of the parties,
(d) the place where the relationship, if any, between the parties
These contacts are evaluated according to their relative importance
with respect to the particular issue. (FN6)
The principles of Sections 6 and 145 of the Restatement (Second)
defy mechanical applicationthey are less "rules of
law" than generallystated guideposts. Additionally, the
factors relevant to issues of in personam jurisdiction and those
regarding choice of law must be kept distinct. While a foreign defendant
may have sufficient contacts to be amenable to suit in Mississippi,
it does not necessarily follow "that Mississippi substantive
law will govern the rights and liabilities of the parties."
Boardman, 470 So.2d at 1035; see also Administrators of the Tulane
Educational Fund v. Cooley, 462 So.2d 696, 701 (Miss.1984). For
in personam jurisdiction purposes, the court focuses upon the contacts
of a single party. On choice of law we look at all contacts of all
partiesand more. Minimum contacts suffice for in personam
jurisdiction. Choice of law seeks the state where the contacts are
Joplin, Missouri, the locus delicti, was not quite as fortuitous
as in some fatal aircraft accident suits. See Proprietors Insurance
Company v. Valsecchi, 435 So.2d 290, 29497 (Fla.App.1983).
Still, this is one of those cases where locus bears little relation
to the parties. Where the plane went down will not necessarily control
the choice of law issues before us if with respect to a given issue
another state has a more significant relationship. See Vick v. Cochran,
316 So.2d 242, 246 (Miss.1975); Turner v. Pickens, 235 So.2d 272,
274 (Miss.1970); Mitchell v. Craft, 211 So.2d 509, 512 (Miss.1968);
Restatement (Second) of Conflict of Laws ss 145, Comment e, 146
and 175 (1971).
Before proceeding, a seriatim notation of the seemingly significant
facts may be of benefit. These facts are:
(1) The Beechcraft Bonanza was registered in the state of Tennessee.
(2) The aircraft was owned by defendant J.B. Gaiennie, a Tennessee
(3) The aircraft was hangared at the Memphis, Tennessee, airport.
(4) The leaseback arrangement between Gaiennie and Memphis
Jetcenter was negotiated and entered into in Tennessee.
(5) The lessors of the aircraft, the Memphis Jetcenter companies,
are Tennessee corporations centered in Memphis.
(6) On the occasion at issue, the aircraft was leased by Consolidated
Agri Leasing, Inc., a Tennessee corporation centered in Memphis,
which had leased various aircraft (through Speaks) from the Jetcenter
on fiftynine previous occasions.
(7) The flight originated from the Memphis Airport; plans had called
for the flight to terminate there as well.
(8) The pilot was Jerry Speaks, a Tennessee resident.
(9) Plaintiffs' decedent, Jack Ritter, was a resident of Olive Branch,
Mississippi, a commuter with his business base in Memphis.
(10) Plaintiffs, the heirs of Jack Ritter, are all Mississippi residents.
(11) Ritter was employed by Consolidated Enterprises, a Mississippi
corporation having its principal place of business in Memphis.
The Plaintiffs emphasize that Ritter lived in Mississippi and was
employed by a Mississippi corporation and that this employment was
the central relationship which led him to Joplin. In truth and in
fact, Tennessee was Ritter's business base. Of importance is the
pilot/passenger relationship between Speaks and Ritter which was
established in Memphis. See Vick v. Cochran, 316 So.2d 242, 246
(Miss.1975) (application of the Alabama "guest statute"
where the "guest" relationship was established in Alabama).
The interstate trip began and was to have ended in Memphis. Vick
v. Cochran, 316 So.2d at 246. Of course, the record reflects incidental
and on occasion not insignificant Mississippi contacts. The tort
occurred in Missouri. Both in number and significance, the relevant
"contacts" considered as a whole suggest without serious
doubt that, visavis Mississippi or Missouri, Tennessee
is the state with the most significant relationship to the occurrence
and the parties.
The Circuit Court erred when it held Mississippi law applicable
to all issues in the case, but that does not answer what state's
law controls each specific issue, e.g., vicarious liability. "[T]he
law of a single state does not necessarily control every issues
in a given case. We apply the center of gravity test to each question
presented, recognizing that the answer produced in some instances
may be that the law of this state applies and on other questions
in the same case the substantive law of another state may be enforceable."
Boardman, 470 So.2d at 1031.
Our first substantive question is whether SIA, Memphis Aviation
and Gaiennie may be held liable vicariously for damages occasioned
by Speaks' neglect. The place of the accident and the tortious conduct,
i.e., Missouri, is certainly relevant. Restatement (Second) of Conflicts
of Laws ss 145(2)(a) and 146 and 174 (1971). If the party injured
or killed had been a Missourian, that state's law would control.
Restatement, s 174, Comment b, Illustration 2 (1972). We find a
distinct and predominant Tennessee flavor emanating from the ownership,
management, maintenance, lease and operation of the aircraft, and,
as well, the Tennessee contacts noted above. On these facts one
may but conclude that Tennessee law controls this particular issue.
Cf. Vick v. Cochran, 316 So.2d at 24648. The lone Mississippi
contact with this issue is the presence of a Mississippi resident
in the passenger's seat. This is not enough.
The Tennessee legislature has enacted that:
The liability of the owner of one aircraft to the owner of another
aircraft or to aeronauts or passengers on either aircraft for damages
caused by collision on land or in the air shall be determined by
the rules of law applied to torts on land.
Tenn.Code Ann. s 421106 (1964) (emphasis added). Lacking
judicial guidance from Tennessee courts, we take the statute at
Plaintiffs argue that this section only has application to collisions
between two aircraftan "air crash", for lack
of a better term, not to the results of a single aircraft impacting
against the ground. The position is untenable. But a moment's reflection
recalls to mind that mother earth and her inherent power, the pull
of gravity, are the pilot's primary peril. Earth is a larger and
relatively more stationary object than another aircraft. Even when
planes collide in the air, the damage occurs when each thereafter
collides with earth. We perceive no rational principle which would
exempt the owner in event of collision in the air but hold him liable
as here where the plane collides with the groundparticularly
where the causeof damage in the former case is likely not the collision
in air but that with the ground.
The word "collision" means simply "striking together
of two objects, one of which may be stationary. ... The term implies
an impact or sudden contact of a moving body with an obstruction
in its line of motion, whether both bodies are in motion or one
stationary and the other, no matter which, in motion." Black's
Law Dictionary 23940 (5th ed. 1979). Literalistic contortion
does not generate legal construction where absurd results would
obtain. See Johnson v. United States, 196 U.S. 1, 25 S.Ct. 158,
49 L.Ed. 363 (1904).
Turning to the Tennessee "law applied to torts on land,"
we find the familiar common law rule which declines to impose vicarious
liability upon a bailor for the negligence of the bailee. Hamrick
v. Spring City Motor Co., 708 S.W.2d 383, 385 (Tenn.1986); Smith
v. Bullington, 499 S.W.2d 649, 660 (Tenn.App.1973); English v. Stephens,
35 Tenn.App. 557, 249 S.W.2d 908, 910 (Tenn.App.1952), and Siegrist
Bakery Co. v. Smith, 162 Tenn. 253, 36 S.W.2d 80, 81 (Tenn.1931).
We perceive no basis in Tennessee law for imposing vicarious liability
upon SIA, Memphis Aviation or Gaiennie.
Nor may the Federal Aviation Act of 1958 be so construed. (FN7)
49 U.S.C.A.App. s 1301 et seq. (1971). Recent readings of this federal
statute (and its state statutory clones) have limited liability
solely to the pilots of aircraft. Broadway v. Webb, 462 F.Supp.
429, 433 (W.D.N.C.1977); McCord v. Dixie Aviation, 450 F.2d 1129,
1130 (10th Cir.1971); Nachsin v. DeLaBretonne, 17 Cal.App.3d 637,
95 Cal.Rptr. 227, 228 (1971); Ferrari v. Byerly Aviation, Inc.,
131 Ill.App.2d 747, 268 N.E.2d 558, 56061 (1971); see also
2 S. Speiser & C. Krause, Aviation Tort Law s 14:3 (1979 &
Supp.1988); and L. Kreindler, Aviation Accident Law s 4.02 (1986).
In sum, we find no applicable or enforceable law, either state or
federal in sovereign origin, under which SIA, Memphis Aviation or
Gaiennie may be held vicariously liable for the negligence of pilot
Speaks. The Circuit Court erred in holding otherwise. Since no other
basis appears upon which liability may be imposed on these Defendants,
or any of them, we may only hold that the Circuit Court erred when
it denied the motion of each for a directed verdict at the close
of the evidence, Rule 50(a), Miss.R.Civ.P., and, as well, when it
granted Plaintiffs' motion for a new trial against these Defendants.
To this extent, we reverse the judgment of the Circuit Court and
render final judgment here in favor of SIA, Memphis Aviation and
Defendants argued below, and renew the argument on this appeal,
that the exclusiveness of liability provision of the applicable
workers' compensation statute precludes a part of this action because
Ritter, generally speaking, was on a business trip at the time of
his death. Tenn.Code Ann. s 506108 (Supp.1988). Defendants'
position is that "the applicable Workmen's Compensation statute
covers business trips 'from beginning to end.' " In view of
our holding in Part VI above, the import of Defendants' point is
that Plaintiffs would have no tort action against Estate of Speaks,
for Speaks also was an employee of Consolidated Enterprises. Majors
v. Moneymaker, 196 Tenn. 698, 70405, 270 S.W.2d 328, 331 (1954);
Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 621
The facts leading up to the fatal flight, and the reason the two
men chose to fly on that icy night, were extensively developed below.
Speaks and Ritter often conducted business in southern Missouri
and had made the acquaintance of two women who lived in Joplin.
In fact, Speaks had recently married Janna Thomas, a Joplin native.
(FN8) Ritter had developed a relationship (platonic we are told)
with another Joplin resident, Gloria Gough. The four would often
dine together when Ritter and Speaks were both in Joplin.
On the day in question, March 19, 1984, Ritter and Speaks arrived
in Springfield and rented a car, giving the name of a local motel
as their "local address" on the car rental form. The two
met with a local "Consolidated" employee, Jeanne Rippee,
at the nearby Mansfield office and indicated that they would be
staying in the Springfield area through the following day. Speaks
told Rippee that they would be able to help her take delivery of
a new company pickup truck the next day. Speaks also made arrangements
to fly a prospective customer, Shirley Hambelton, from Mansfield
to the Neosho, Missouri Airport on March 20 to inspect some chicken
houses she might purchase. At some point during the day, Speaks
telephoned his motherinlaw and arranged to dine with her
that evening in Joplin. Ritter telephoned Gloria Gough at approximately
6:00 PM and invited her to join them for dinner that evening, as
he would be accompanying Speaks to Joplin.
Defendants have but a single circumstance to support their claim
the flight was business relatedthe arrangements made by
Speaks with the Neosho chicken farmer, Jackie Osborne, to meet with
a prospective buyer on the 20th. Neosho is in the general vicinity
of Joplin. No one proposes to know whether Ritter and Speaks intended
to return to Springfield or Mansfield after dinner in Joplin.
Defendants' contend that the entire Missouri trip of Speaks and
Ritter was businessrelatedthat their "business travel"
would not conclude until their return to the Memphis Airport. This
is far too general a mischaracterization to be of value. From the
facts surrounding the flight the following seems clear: Speaks'
and Ritter's business in Mansfield had concluded for the day, to
resume the next morning in Mansfield. The "sidetrip"
(FN9) to Joplin which resulted in the death of the two men was for
purely personal endeavorsa "frolic". As such,
it lies outside the coverage of the Tennessee Workers' Compensation
Act. Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591, 592 (1959).
Enforcing our procedural law, Defendants' plea of protection from
the compensation act's exclusiveness of liability provisions was
an affirmative defense. Rule 8(c), Miss.R.Civ.P. As such, Defendants
bore the burden of production and the risk of nonpersuasion.
Smith v. Sanders, 485 So.2d 1051, 1053 (Miss.1986). The Circuit
Court correctly held that the evidence regarding the proposed visit
to the Neosho chicken farm was insufficient that a jury may reasonably
have found that the two men were in the course and scope of their
employment at the time of the crash. Stubblefield v. Jesco, Inc.,
464 So.2d 47, 54 (Miss.1984); Paymaster Oil Mill Co. v. Mitchell,
319 So.2d 652, 657 (Miss.1975). Plaintiffs' tort action against
Estate of Speaks is not barred by the exclusiveness of liability
protections of the Tennessee Workers Compensation Act.
As will be recalled, the Circuit Court granted the Plaintiffs' motion
for a new trial on the ground that the assumption of risk instruction
should not have been given. Defendants argue that this was error.
At trial the Court had refused Plaintiffs' request for a comparative
negligence instruction, submitting to the jury only whether Ritter
had assumed the risk of injury or death by accompanying Speaks into
weather which he, as a pilot himself, must have known to be dangerous.
In ruling on the matter, the Court stated:
I'm going to rule that this is not a contributory negligence case.
It's a pure assumption of the risk case. There is no evidence of
contributory negligence that overlaps with an assumption of risk....
In this case, Mr. Ritter could not have been negligent in any way
and could only have assumed the risk of Mr. Speaks' negligence,
therefore, a contributory negligence instruction is not warranted
and it will be refused.
Both parties had drafted assumption of risk instructions. Rule 3.09,
Unif.Cir.Ct.Rules. The Court submitted to the jury that offered
by the plaintiffs. (FN10)
Mitchell v. Craft and progeny again mandate that we seek Tennessee
law, but when we do so we find a Tennessee choice of law rule that
mandates enforcement of the law of the state where the accident
occurred, the old lex loci rule, if you will. Winters v. Maxey,
481 S.W.2d 755, 756 (Tenn.1972); Patterson v. Smith, 57 Tenn.App.
673, 424 S.W.2d 204, 208 (1965); see Smith, Choice of Law in the
United States, 38 Hastings L.J. 1041, 114446 (1987). The accident
occurred in Missouri. (FN11) That a Tennessee court would likely
enforce Missouri law does not control us; it is but a factor.
To submit to a jury the matter of a plaintiff's (or, here Plaintiffs'
decedent's) assumption of risk, Missouri law mandates that the defendant
must demonstrate: (1) Knowledge on the part of the injured party
of a condition inconsistent with his safety; (2) appreciation by
the injured party of the danger of the condition; and (3) a deliberate
and voluntary choice on the part of the injured party to expose
his person to that danger in such a manner as to register assent
on the continuance of the dangerous condition. Turpin v. Shoemaker,
427 S.W.2d 485, 489 (Mo.1968); Day v. Mayberry, 421 S.W.2d 34, 4243
(Mo.1967); Terry v. Boss Hotels, Inc., 376 S.W.2d 239, 24751
(Mo.1964). Happily, Tennessee law appears the same. (FN12) Haga
v. Blanc & West Lumber Co., 666 S.W.2d 61, 65 (Tenn.1984); Ellithorpe
v. Ford Motor Co., 503 S.W.2d 516, 522 (1973); Rogers v. Garrett,
217 Tenn. 282, 287, 397 S.W.2d 372 (1965). We need not decide which
state's law would control were there a conflict.
The facts surrounding the fatal flight itself are threadbare. No
one accompanied the men to the airport. All that is known about
Speaks' flight preparations come from FAA recordings of radio transmissions
between Speaks and the Springfield and Joplin control towers. What
conversations Ritter overheard from the radio, what he knew or appreciated
prior to takeoff is subject to the conjecture of both parties.
Defendants' trial theory was that, because Jack Ritter was also
a pilot, he knew and appreciated the danger of flying into unknown
weather conditions. Defendants further assert that Ritter could
not help but appreciate the deteriorating weather conditions before
departure and that this bolsters their premise that Ritter voluntarily
placed himself into a position which he knew to be perilous.
The Plaintiffs Ritter, on the other hand, note facts that tend to
exonerate their decedent from any assumption of risk:
(1) Weather conditions occurring at ground level are not informative
of weather conditions at flying altitude, particularly regarding
freezing temperature and icing conditions.
(2) Ritter's certification was limited to Visual Flight Rules (VFR),
and he could be presumed to have relied upon Speaks' superior (IFR)
training in instrument flying conditions.
(3) Defendants presented no evidence that Ritter was privy to any
of Speaks' preflight communications, as the aircraft may have
been equipped with earphones which allow only the pilot to hear
As is apparent, there is little "hard" evidence to support
The skeletal record regarding the acts of Speaks and Ritter prior
to the March 19 flight is legally insufficient to support the assumption
of risk instruction as it is based entirely upon what might have
happened. The evidence at trial, even giving the defense the benefit
of every doubt, only raised an issue regarding Ritter's negligence.
That evidence did not, however, rise to a level approaching that
required by lawthat Ritter knew, appreciated and affirmatively
chose to encounter the risk.
Even assuming that Ritter so assumed the risk of flying into bad
weather, he cannot be assumed to have assented to the continuing
negligence of Jerry Speaks. The Circuit Court found three distinct
acts of negligence committed by Speaks: (1) failure to obtain the
weather briefing; (2) failure to return to Springfield once the
severity of the condition became apparent (FAA records indicated
that Speaks reported severe icing five minutes into the thirty minute
flight); and (3) failure to request an emergency "straightin"
landing in Joplin, choosing instead to take an approach requiring
a banking maneuver, which reduced the aircraft's "lift".
To the point, Prosser notes:
It is not true that in any case where the plaintiff voluntarily
encounters a known danger he necessarily consents to any future
negligence of the defendant. A pedestrian who walks across the street
in the middle of a block, through a stream of traffic traveling
at excessive speed, cannot by any stretch of the imagination be
found to consent that the drivers shall not use care to watch for
him and avoid running him down. ... This is contributory negligence
pure and simple; it is not assumption of risk.
... [T]he plaintiff has exposed himself to the risk of future harm,
but he has not consented to relieve the defendant of any future
duty to act with reasonable care. This is a distinction which has
baffled a great many law students, some judges, and unhappily a
few very learned legal writers.
Prosser & Keeton, The Law of Torts s 68, at p. 485 (5th ed.
1984) (emphasis added).
The Circuit Court erred when it submitted to the jury the issue
of Ritter's assumption of risk. The verdict may only be explained
by assuming that the jury found that Ritter had indeed assumed the
risk. Contrast McLeod v. Whitten, 413 So.2d 1020, 102324 (Miss.1982);
and Wallace v. J.C. Penney Co., 236 Miss. 367, 37374, 109 So.2d
876, 878 (1959). The Circuit Court correctly held that the erroneous
granting of the assumption of risk instruction required the grant
of a new trial.
We have held that the Circuit Court correctly ruled that it had
erred when it refused to submit the case to the jury on comparative
negligence, i.e., that the Court had previously erred in holding
this only an assumption of risk case. The case, of course, must
now go back for a new trial against the Estate of Speaks. We have
held above that Tennessee law controls several other liability issues,
with respect both to the Estate of Speaks and other Defendants we
this day exonerate. Tennessee holds to the common law rule that
contributory negligence is a bar to a plaintiff's recovery in tort.
Arnold v. Hayslett, 655 S.W.2d 941 (Tenn.1983); Street v. Calvert,
541 S.W.2d 576 (Tenn.1976). The question becomes whether this issue
will be tried anew under Tennessee law or under a rule of comparative
negligence, a suggestion instantly causing thought of our familiar
statute. Miss.Code Ann. s 11715 (1972).
Notwithstanding that another state may have the most significant
relationship to a given issue, we have expressed our reluctance
to enforce the law of that state where such would be offensive to
the deeply ingrained or strongly felt public policy of this state.
Boardman v. United Services Automobile Assoc., 470 So.2d 1024, 103839
(Miss.1985). Following this principle, (FN13) we have preferred
our comparative negligence statute over the common law contributory
negligence rules of other jurisdictions. (FN14) Fells v. Bowman,
274 So.2d 109, 11213 (Miss.1973); Mitchell v. Craft, 211 So.2d
509, 51316 (Miss.1968); see also Boardman, 470 So.2d at 1038
and Restatement (Second) of Conflict of Laws, ss 6(2)(b), (c) and
(e), 145 and 164(1) (1971). Both from the point of view of civil
justice (FN15) and economic efficiency, (FN16) comparative negligence,
as an approach to the effect that ought be given a plaintiff's contributory
fault, is demonstrably superior to the traditional common law contributory
The fatal crash occurred in Missouri, which at least since 1983
has adhered to a regime of comparative fault. Love v. Park Lane
Medical Center, 737 S.W.2d 720 (Mo.1987); Gustafson v. Benda, 661
S.W.2d 11 (Mo.1983); see Comment, Comparative Fault in Missouri,
50 Mo.L.Rev. 141 (1985). Our law recognizes as controlling the law
of the state where the fault and the injury occur, absent a more
significant relationship with another state. Mitchell v. Craft,
211 So.2d at 51516; Restatement, ss 145(2), 146 and 164(2)
(1971). Mississippi comparative negligence law is not identical
to Missouri's, but is quite similar in practical effect.
No extended discussion of the relevant interests, Mitchell, 211
So.2d at 516, and Restatement, s 6, is necessary. On the authority
of the foregoing, we declare that upon retrial, the effect, if any,
of Ritter's negligence, if any, will be governed by Mississippi's
comparative negligence statute to the exclusion of the Tennessee
contributory negligence rule.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REMANDED FOR A
NEW TRIAL AGAINST ESTATE OF SPEAKS ONLY.
ROY NOBLE LEE, C.J., and PRATHER, ANDERSON, PITTMAN and BLASS, JJ.,
HAWKINS, and DAN M. LEE, P.JJ., and SULLIVAN, J., dissent.
SULLIVAN, J., writes separately.
HAWKINS, Presiding Justice, dissenting:
This case is before the Court on a interlocutory appeal from a circuit
court order directing a new jury trial on all issues.
I respectfully dissent.
The Court erred in ever granting an interlocutory appeal, and had
the motion for such appeal ever been presented en banc I would have
dissented from the order granting it.
The authority of a trial judge to grant a new trial for perceived
errors during trial is of ancient common law origin. Fayter v. Shore,
114 Fla. 115, 153 So. 511 (1934), and the power and duty of a circuit
judge to grant a new trial when appropriate has been an integral
part of our constitutional system since the beginning of this State's
history. Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597 (1941).
The wisdom of the centuries has been that it is far better for the
litigants and for the efficient administration of justice for the
trial judge to correct his mistakes, himself, at the trial level,
rather than burden the litigants and the appellate courts with a
case he could have corrected on his own.
66 C.J.S. New Trial, s 1(b.) states:
b. Object; Function
The object or function of a motion for a new trial is to secure
the correction of, or to give the trial court an opportunity to
correct, errors occurring in the conduct of the trial, without the
delay, expense, or inconvenience of an appeal, and to preserve such
errors for appellate review.
The purpose of the law relating to new trial has been said to be
that the court be given a real opportunity to review all asserted
grounds of error and, if meritorious, to correct them by granting
the motion for new trial.
The purpose, office, or function of a motion for a new trial has
been variously stated to be to give the trial court an opportunity
to correct its own errors, or errors that have occurred in the conduct
of the trial or proceedings, without the delay, expense, inconvenience,
or other hardships of an appeal; to bring before the court errors
which, without the motion, would not be called to its attention;
to direct the attention of the trial court to all errors not waived;
to call to the court's attention errors that may have been committed
during the trial, whether they are such as have been discovered
since the trial or were committed in opposition to the moving party's
contentions asserted at the trial; to secure the correction of errors
by the court having such matters directly in hand, without the necessity
of incurring the often heavy expense, the sometimes long delays,
and the inconvenience, of appeals to a higher court; and to show
to the appellate court that such opportunity for corrections was
furnished. [Footnotes omitted]
Indeed, this Court has consistently held the necessity of giving
a circuit judge an opportunity to correct trial errors so important
that a litigant cannot complain on appeal of any perceived error
that he did not first specifically point out to the circuit judge
in a motion for a new trial. Mississippi State Highway Commission
v. Rives, 271 So.2d 725 (Miss.1972); Cooper v. Lawson, 264 So.2d
890 (Miss.1972); T.G. Blackwell Chevrolet Co. v. Eshee, 261 So.2d
481 (Miss.1972); Mercier v. Davis, 234 So.2d 902 (Miss.1970); Colson
v. Sims, 220 So.2d 345 (Miss.1969); Graham v. Swinney, 174 Miss.
579, 165 So. 438 (1934); Hayes v. Slidell Liquor Co., 90 Miss. 583,
55 So. 356 (1911); Armstrong v. Gaddis, 81 Miss. 35, 32 So. 917
(1902); Barney v. Scherling 40 Miss. 320 (1866).
This Court looks with favor upon a trial judge's rulings on a motion
for a new trial, especially when granted. Mississippi State Highway
Commission v. Hancock, 309 So.2d 867 (Miss.1975); Houston v. Page,
208 So.2d 901 (Miss.1968); Conner v. Hatcher, 203 So.2d 309 (Miss.1967);
Womble v. Mississippi State Highway Commission, 239 Miss. 372, 123
So.2d 235 (1960); Long v. Magnolia Hotel Co., 236 Miss. 655, 111
So.2d 645, sugg. error o'ruled 236 Miss. 655, 114 So.2d 667 (1959).
And, except for an order directing a new trial on damages alone,
in which instance an appeal is specifically authorized by statute,
Miss.Code Ann. s 117213, we have never permitted an appeal
from an order granting a motion for a new trial. Woods v. Lee, 390
So.2d 1010, 1011 (Miss.1980); Bowman v. Rutledge, 369 So.2d 768
(Miss.1979); State v. Richardson, 350 So.2d 59 (Miss.1977), (dismissing
appeal from such an order on our own for lack of appellate jurisdiction);
Byrd v. Sinclair Oil & Refining Co., 240 So.2d 623 (1970).
If Rule 5(a) of the Rules of the Mississippi Supreme Court authorizes
this appeal, then the rule is meaningless as any brake on interlocutory
Human nature being what it is, it is not easy to recognize our own
mistakes, and harder still to openly admit it. Thus, it is much
simpler for a circuit judge to overrule a motion for a new trial
and pass the case on to us. It is equally demonstrable that far
fewer new trials are granted at the trial level than should be.
Otherwise, why the substantial percentage of reversals of cases
where motions for new trial have been denied? Yet historically we
have with good reason encouraged trial judges to grant new trials
when appropriate. If the trial judge should occasionally make an
error in doing so, it can be corrected upon appeal from the second
In this case we have a circuit judge who had the intelligence to
recognize and courage to correct a mistake he considered he made.
He was doing the very thing we have pleaded with judges for two
centuries to do when they considered a mistake had been made: order
a new trial.
And, what do we do? Grant an interlocutory appeal and decide all
issues in the case ourselves. Vanity, that psychological defense
against the terror of extinction, has not passed over the judiciary.
We publicize our erudition.
But what has happened to stability, or judicial economy?
And, we have just extinguished an endangered species, circuit judges
intelligent enough to recognize their mistakes and courageous enough
to correct them on their own.
My discomfort with this Court's abolition of settled principles
governing interlocutory appeals has been expressed. Kilgore v. Barnes,
490 So.2d 895, 896 (Miss.1986); Southern Farm Bureau Casualty Insurance
Co. v. Holland, 469 So.2d 55, 60 (Miss.1984). This case does not
allay my apprehension.
DAN M. LEE, P.J., and SULLIVAN, J., join this opinion.
SULLIVAN, Justice, writing separately:
IS ASSUMPTION OF THE RISK A SEPARATE DOCTRINE UNDER
In 1917 the State of Mississippi adopted the doctrine of comparative
negligence and codified it in the state code. See Hemingway's 1917
Mississippi Code s 502; Miss.Code Ann. (1930) s 511; Miss Code Ann.
(1942) s 1454. This doctrine is presently stated in s 11715,
Miss.Code Ann. (1972), as Amended. This section states:
In all actions hereafter brought for personal injuries, or where
such injuries have resulted in death, or for injury to property,
the fact that the person injured, or the owner of the property,
or person having control over the property may have been guilty
of contributory negligence shall not bar a recovery, but damages
shall be diminished by the jury in proportion to the amount of negligence
attributable to the person injured, or the owner of the property,
or the person having control over the property.
Since contributory negligence was no longer a bar to recovery this
Court became plagued with another question:
Does the doctrine of assumption of the risk remain a viable and
distinct alternative to comparative negligence? (i.e. should assumption
of the risk be treated the same as contributory negligence under
Mississippi's comparative negligence statute)?
Drawing a clear distinction between contributory negligence and
assumption of the risk has always been difficult. Hill v. Dunaway,
487 So.2d 807, 810 (1986). In early cases assumption of the risk
was seen as a complete bar to recovery while contributory negligence
was almost like a lesser included offense. For assumption of the
risk there had to be the element of "venturousness" but
"carelessness" was all that was required for contributory
negligence. Saxton v. Rose, 201 Miss. 814, 823, 29 So.2d 646, 649
(1947). The doctrines began to become muddled when jury instructions
began to eliminate the distinction between assumption of the risk
and contributory negligence. Wallace v. J.C. Penny Co., Inc., 236
Miss. 367, 372, 109 So.2d 876, 87778 (1959). The Court struggled
in numerous cases to keep the distinction between the two doctrines.
Crouch v. Mississippi Power and Light, 193 So.2d 144, 14647
(Miss.1966); White v. Mississippi Power and Light Company, 196 So.2d
343, 35153 (Miss.1967); Shurley v. Hoskins, 271 So.2d 439,
As it became more difficult to maintain the distinction between
assumption of the risk and contributory negligence the Court began
to move away from assumption of the risk. The Court leaned away
from assumption of the risk by stating that when there is uncertainty
as to which is the proper legal theory, contributory negligence
is favored. Braswell v. Economy Supply Co., 281 So.2d 669, 677 (Miss.1973)
(by favoring contributory negligence rather than the absolute bar
of assumption of the risk the party was still entitled to recover
because of the comparative negligence statute, s 11715).
In Braswell the conflict was finally addressed by this Court. While
assumption of the risk was not abolished by Braswell this Court
further limited the use of the doctrine by stating that an assumption
of the risk instruction should rarely be granted. Singleton v. Wiley,
372 So.2d 272, 27475 (Miss.1979). The Court's trend of removing
assumption of the risk faltered in Nichols v. Western Auto Supply
Co., Inc., 477 So.2d 261, 26465 (Miss.1985), but Braswell was
distinguished, thereby leaving in place the framework for abolishing
the doctrine of assumption of the risk. Nichols, while it stated
that assumption of the risk is still viable, admitted that most
jurisdictions refer to it as contributory fault. 477 So.2d at 264.
So the case would still seem to support removal of assumption of
the risk as a separate doctrine.
The movement away from assumption of the risk returned on track
in Hill v. Dunaway. In a footnote in Hill this Court recognized
the trend of moving assumption of the risk into the defense of contributory
negligence. Hill, 487 So.2d at 810 n. 1. The footnote cited two
cases and a law review article for support of the merger of assumption
of the risk into the contributory negligence doctrine. The case
Wilson v. Gordon, 354 A.2d 398, 40203 (Maine 1976), cited in
the Hill footnote listed nine states that had abolished the defense
of assumption of the risk. Wilson stated that there were very few
jurisdictions that believed assumption of the risk could exist with
the doctrine of comparative negligence. In the other case cited
in the Hill footnote Li v. Yellow Cab Company of California, 13
Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 124042 (1975),
the California Supreme Court stated that the adoption of a comparative
negligence system should involve the merger of the doctrine of assumption
of the risk since assumption of the risk is no more than a variant
of contributory negligence. This Court stated in Hill that it was
not the proper case for resolution of the issue but admitted that
the comparative negligence rule serves the same purpose as assumption
of the risk.
The Hill case brings the Court to where it is today, waiting for
the right case to once and for all abolish the doctrine of assumption
of the risk and treat all fault under the comparative negligence
statute. Gaiennie is such a case. It is an example how even with
the best intentions the doctrines of assumption of the risk and
contributory negligence are still confused.
In this case the argument was made that Ritter had enough information
prior to the flight to make his decision to fly "knowing and
voluntary" thus qualifying for an assumption of the risk instruction.
In reality a comparative negligence instruction was more appropriate
to the facts since there was insufficient evidence to show that
Ritter had enough weather information to make his decision to fly
"knowing and voluntary". Despite the guidelines set forth
in Braswell and Singleton limiting the use of the doctrine, an assumption
of the risk instruction was given. This confusion shows that regardless
of good intentions or the diligence of the judge as long as assumption
of the risk continues to exist as a separate doctrine it will continue
to be confused with the comparative negligence doctrine.
What should have been done in the case at bar was state that Ritter
was careless as a pilot in accompanying Speakes on the flight without
further investigation of the weather conditions. This carelessness
should have been used to reduce any award or if the jury found this
carelessness serious enough prohibit any award. Yet, because assumption
of the risk is still a valid doctrine it was mentioned, which caused
the judge to rethink his decision and grant a new trial.
If assumption of the risk had not been available as a separate doctrine
prior to this trial the cost of a retrial could have been saved.
The doctrine should be incorporated into the doctrine of contributory
negligence and covered by Mississippi's comparative negligence statute,
s 11715. For no reason other than to alleviate further
confusion when the doctrine is merged the new concept should be
titled comparative fault rather than comparative negligence. This
new title would more properly reflect the purpose of the doctrine.
When the plaintiff is partly at fault for the injuries he receives
his recovery should be reduced and when the plaintiff is totally
at fault his recovery should be barred.
I would so declare our law to be.
FN1. There were a number of other Defendants in
the action below, in each of whose favor judgment has been entered
summarily and become final.
FN2. Compare Robbins v. Professional Construction Co., 72 Ill.2d
215, 222, 20 Ill.Dec. 577, 580, 380 N.E.2d 786, 789 (1978); Turner
v. Commonwealth Edison Company, 63 Ill.App.3d 693, 69899, 20
Ill.Dec. 499, 504, 380 N.E.2d 477, 482 (1978) (on interlocutory
appeal from order granting new trial, appellate court will review
FN3. As will appear below, final judgment must be entered exonerating
Appellants Gaiennie, SIA and Memphis Aviation, Inc. We well recognize
the conceptual difficulty with entering an adjudication on the merits
affecting important rights of nonresident parties arguably
not subject to in personam jurisdiction in the forum state. To the
end that our disposition may be final and have res judicata effect,
we hold, without discussion, that Gaiennie, SIA and Memphis Aviation,
Inc. are each wholly subject to in personam jurisdiction in Mississippi
for purposes of this action.
FN4. A note regarding the basics may be of value. Before a court,
any court, has authority to make an adjudication affecting the important
rights of a nonresident (or any other party, for that matter),
at least four distinct predicates must be established. In no particular
order these are:
(1) The defendant must be amenable to suit in the forum state consistent
with due process; that is, the defendant must have constitutionally
adequate minimum contacts with the forum state. See, e.g., Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d
528 (1985); International Shoe Co. v. Washington, 326 U.S. 310,
66 S.Ct. 154, 90 L.Ed. 95 (1945); Administrators of the Tulane Educational
Fund v. Cooley, 462 So.2d 696 (Miss.1984). Though this imperative
is largely a function of U.S. Const. Art. XIV, it may derive as
well from the state's due process clause. Miss. Const. Art. 3, s
14 (1890). See Restatement (Second) of Conflict of Laws s 24 (1971).
(2) The defendant must have been accorded procedural due process
consistent with the federal constitution; that is, he must have
been given reasonable advance notice of the trial or hearing and
a meaningful opportunity to be heard in response. See, e.g., Tulsa
Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108
S.Ct. 1340, 99 L.Ed.2d 565 (1988); Mullane v. Central Hanover Bank
& Trust Company, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed.
865, 873 (1950); Covington v. Covington, 459 So.2d 780, 782 (Miss.1984).
Again, this requirement emanates from the Due Process Clause of
the Fourteenth Amendment. It may also be predicated upon the state's
constitutional due process imperative. See Restatement (Second)
of Conflict of Laws ss 25, 26 (1971).
(3) The defendant must be amenable to suit here as a matter of state
statutory law. See Restatement (Second) of Conflict of Laws s 35,
Comment f (1971). Here we refer to such requirements in our law
as those found in Miss.Code Ann. s 13357 (Supp.1986) (that
defendant has made a contract to be performed here, committed a
tort here, or done business here), s 11311 (Supp.1986)
(that defendant has property here), etc. A state's long arm statute
need not necessarily extend to the federal constitutional outer
limits of state power.
(4) The defendant must have been served with process in conformity
with the requirements of a procedural rule prescribing the manner
of service of process. Most prominent here is Rule 4, Miss.R.Civ.P.
Each of these requisites is independent of the other three. All
four must be satisfied before a court of the forum state may do
anything that affects the important rights of the defendant and
that is entitled to enforcement in the forum state or to full faith
and credit elsewhere. Only (1) and (3) are challenged on this appeal,
and our discussion above is so limited.
Conceptually, the state constitutional due process analogies to
International Shoe and Mullane, Inquiries Nos. (1) and (2) above
may be more like Inquiries Nos. (3) and (4). There is nothing that
would prohibit our holding that our due process clause, Miss. Const.
Art. 3, s 14 (1890), affords nonresident defendants greater
rights and protections than are found in International Shoe and
Mullane and progeny. See Michigan v. Long, 463 U.S. 1032, 1037,
1040, 103 S.Ct. 3469, 3474, 3476, 77 L.Ed.2d 1201, 1212, 121415
(1983); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100
S.Ct. 2035, 204041, 64 L.Ed.2d 741, 752 (1980). In fact, we
have given our due process clause no such construction and in several
contexts have held that it should be construed identically with
federal due process requirements. Mississippi Power Co. v. Goudy,
459 So.2d 257, 26162 (Miss.1984); N.C.A.A. v. Gillard, 352
So.2d 1072, 1081 (Miss.1977); Walters v. Blackledge, 220 Miss. 485,
515, 71 So.2d 433, 444 (1954). We have in dicta suggested (arguably
incorrectly at the timeor even now!) that this state's
long arm reaches as far as the federal constitution allows. Breckenridge
v. Time, Inc., 253 Miss. 835, 842, 179 So.2d 781, 783 (1965); Mladinich
v. Kohn, 250 Miss. 138, 147, 164 So.2d 785, 789 (1964).
FN5. See Smith, Choice of Law in the United States, 38 Hastings
L.J. 1041, 109091 (1987); but see Selder, Rules of Choice of
Law Versus Choice of Law Rules: Judicial Method in Conflicts Torts
Cases, 44 Tenn.L.Rev. 975, 100912 (1977).
FN6. We have accepted and enforced the Restatement's issue by issue
approach. Boardman v. United Services Automobile Assoc., 470 So.2d
1024, 1031 (Miss.1985); Vick v. Cochran, 316 So.2d 242, 246 (Miss.1975);
Fells v. Bowman, 274 So.2d 109, 112 (Miss.1973).
FN7. The provision relied upon by the plaintiffs for the proposition
that federal law imposes vicarious liability upon the lessors, bailors
and owners of aircraft is contained in the "definitions"
section of the Act and reads as follows:
"Operation of aircraft" or "operate aircraft"
means the use of aircraft, for the purpose of air navigation and
includes the navigation of aircraft. Any person who causes or authorizes
the operation of aircraft, whether with or without the right of
legal control (in the capacity of owner, lessee, or otherwise) of
the aircraft, shall be deemed to be engaged in the operation of
aircraft within the meaning of this chapter.
49 U.S.C.A. s 1301(26).
Many state statutes regarding the regulation of aircraft are modeled
after this federal act. See e.g. Miss.Code Ann. s 6113(j)
(1972) (identical to Section 1301(26)). Plaintiffs place reliance
upon an opinion of the United States Court of Appeals for the Fifth
Circuit construing this definition of "operator" to impose
statutory vicarious liability upon owners and bailors of aircraft.
Hays v. Morgan, 221 F.2d 481, 483 (5th Cir.1955) (construing predecessor
to section 6113(j)). Subsequent cases, however, have criticized
the rationale employed in Hays and the holding has since been limited
by the Fifth Circuit. That court now considers the holding but a
reading of Mississippi statutory law and has declined to extend
the rationale to the identically worded federal counterpart. Rogers
v. Ray Gardner Flying Service, Inc., 435 F.2d 1389, 139394
(5th Cir.1970). As Tennessee law governs, we have no occasion to
resolve the point.
FN8. The record in this case reflects that Speaks' first marriage
had not yet legally terminated, as he was scheduled to execute an
instrument of final divorce upon his return from Missouri. We take
no position nor do we make any comment upon the legal rights of
FN9. Mississippi law is like Tennessee's.
If a servant steps aside from the master's business for some purpose
of his own disconnected from his employment, the relation of master
and servant is temporarily suspended and "this is no matter
how short the time, and the master is not liable for his acts during
Persons v. Stokes, 222 Miss. 479, 486, 76 So.2d 517, 519 (1954).
This rule, borrowed from the tort principle of respondeat superior,
obtains in the area of workers' compensation as well. Collier v.
Texas Construction Co., 228 Miss. 824, 828, 89 So.2d 855, 857 (1956);
Earnest v. Interstate Life & Accident Ins. Co., 238 Miss. 648,
652, 119 So.2d 782, 783 (1960). Thus, deviations from that which
is necessary to carry the worker to and from business events are
not within the reach of the act. Dowdle & Pearson, Inc. v. Dep.
of Hargrove, 222 Miss. 64, 69, 75 So.2d 277, 278 (1954); see Dunn,
Mississippi Workers' Compensation, s 171 (3d ed. 1982). See generally
Restatement (Second) of Conflict of Laws s 183 (1971).
FN10. Defendants argue Plaintiffs may not complain as the assumption
of risk instruction given the jury was the one drafted and submitted
by Plaintiffs' counsel. They ignore our long standing policy that,
when the trial court makes a ruling adverse to a litigant, that
litigant and his lawyer are entitled to try the rest of the case
on the assumption that the trial judge's ruling will not be disturbed
on appeal. When that litigant reaches this Court, we will not imply
a waiver from subsequent conduct which does nothing more than show
the lawyer's obligatory respect for the trial judge while at the
same time continuing as best she can to advance her client's cause.
Stringer v. State, 500 So.2d 928, 946 (Miss.1986); Stong v. Freeman
Truck Line, Inc., 456 So.2d 698, 711 (Miss.1984); Home Insurance
Co. of New York v. Dahmer, 167 Miss. 893, 901, 150 So. 650, 652
(1933). As this policy is in the nature of local procedure, we may
enforce it, notwithstanding the choice of law principles articulated
FN11. This is as good a point as any to note that Mitchell v. Craft
did not declare the place of the accident irrelevant in the choice
of law inquiry. The law of that state still controls the rights
and liabilities of the parties, unless, with respect to the issue
at hand, some other state has a more significant aggregate relationship.
Restatement (Second) of Conflict of Laws s 146 (1971).
FN12. The Mississippi rules regarding assumption of risk seem identical
to Missouri's and Tennessee's. Nichols v. Western Auto Supply Co.,
477 So.2d 261, 264 (Miss.1985); Elias v. New Laurel Radio Station,
Inc., 245 Miss. 170, 179, 146 So.2d 558, 56162 (1962).
FN13. In Restatement parlance we act by reference to the "relevant
policies of the forum" and the "basic policies underlying
the particular field of law." Restatement (Second) of Conflict
of Laws s 6(2)(b) and (e) (1971). Prof. Robert A. Leflar's more
brazen form of expressing the point would be that we enforce our
comparative negligence rule because it is a "better rule of
law", cited in Mitchell, 211 So.2d at 514; see Leflar, Conflicts
Law: More on ChoiceInfluencing Considerations, 54 Calif.L.Rev.
1584, 1587 (1966); see also Hill, The Judicial Function in Choice
of Law, 85 Colum.L.Rev. 1585, 161819 (1985).
FN14. We can but confess Tennessee appears to take a different view.
See Patterson v. Smith, 57 Tenn.App. 673, 424 S.W.2d 204, 208 (1965),
which enforced our comparative negligence statute, notwithstanding
Tennessee's contributory negligence rule. Perhaps the Tennessee
courts similarly recognize that comparative negligence is the better
rule, believing only that implementation of the new regime is not
within the judicial prerogative. See Street v. Calvert, 541 S.W.2d
at 586; Arnold v. Hayslett, 655 S.W.2d at 945 n. 4.
FN15. Prosser and Keeton, The Law of Torts s 67 (5th ed. 1984);
Schwartz, Contributory and Comparative Negligence: A Reappraisal,
87 Yale L.J. 697, 72127 (1978).
FN16. Rubinfeld, The Efficiency of Comparative Negligence, 16 J.Legal
Stud. 375 (1987).