Thursday, October 27, 2011

Important Cases: Linam v. Murphy, 232 S.W.2d 937 (Mo. 1950)

Was a simple case of liability but that never stops a Missouri trial judge bent on re-writing the law.

The plaintiff was a student passenger, injured when the flight instructor negligently flew into power lines over a river and plunged into the stream.

"Cooke circled, lost altitude and "buzzed" Rocky Beach, south of Ginger Blue, where people were swimming. The plane was 10 feet above the water. He then gained altitude and flew south of Noel. From the state highway bridge over Elk River he flew downstream, turned below the dam (about one-fourth mile below the bridge), lost altitude, flew upstream, and "buzzed" the dam, the bridge and the town of Noel. Between the dam and the bridge he flew at an altitude only a little higher than the tops of the trees at the ends of the dam. Plaintiff asked Cooke to "get up and fly at a higher altitude before we run into something," and said, "Let's get out of here and fly like we are supposed to." Cooke replied, "Don't worry; you know I am not going to hurt myself. Take it easy." Cooke regained altitude but was up only about 500 feet when "buzzing" the bridge and the town. He then again circled, flew downstream, turned around below the dam and flew upstream at an altitude lower than that of his first upstream trip. When he "buzzed" the dam the second time the plane was not over 40 feet above the structure. This time, before he reached the bridge, the plane struck the wires of a power line over the river."

The trial judge thought there was no liability for the plane owner because they had told the pilot "not to 'buzz' objects when he had the controls of a training plane with a student in the other seat."


First, "Defendants had not turned over the plane to Cooke for his personal use and pleasure. In taking over the controls he was acting within the scope of his employment, no matter what his motive may have been. He was still acting within the scope of his employment thereafter when he continued to operate the plane. Obviously, Cooke's duty to his employers (and his employers' duty to plaintiff) required him to operate the plane after he had exercised his authority in taking over the controls. His operation of the plane was "not clearly foreign to the nature and scope of his employment," as urged by defendants. See 35 Am.Jur. pp. 995, 996. There was no "direct route" from which he could deviate for his own purposes. See Sullivan v. Thurman, Mo.App., 266 S.W. 745."

"It does not suffice to say that Cooke took the controls for the purpose of "going on a frolic of his own" and then "did the buzzing" for his personal enjoyment. His motive is not material if he was still engaged in defendants' business and if his acts in taking the controls and thereafter operating the plane were part of his duties and within the scope of employment. Nor does it suffice to say that after he took the controls the subsequent "buzzing" was done for his own enjoyment. So long as the act or omission is done in the performance of the master's business as well as "for fun," such an act or omission is deemed to be within the scope of employment. 57 C.J.S., Master and Servant, § 574, pp. 328, 329. See Byrnes v. Poplar Bluff Printing Co., Mo.Sup., 74 S.W.2d 20.

Second, "Nor does it suffice to say that Cooke may have been violating defendants' instructions. We will assume that defendants had instructed Cooke not to "buzz" objects when he had the controls of a training plane with a student in the other seat. (We note that there was no evidence that defendants had so instructed Cooke nor any evidence of what instructions, if any, they had given him as to how he was to operate the plane. Plaintiff testified as to the type of instruction he was supposed to receive, and "buzzing" was not included. But there was no evidence that defendants had instructed Cooke not to "buzz" when he was in control and was not engaged in instructing a student.) Violation of the master's instructions does not relieve the master from liability for the negligent acts of the servant done within the scope of the latter's employment. 57 C.J.S., Master and Servant, § 570, pp. 312, 313. See Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; and Liberty Mutual Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787."

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