Tompkins v. Northwestern Union Trust Co.

No. 81-403
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982

E. ALLEN TOMPKINS and MYRTLE TOMPKINS,
heirs of HILLARY TOMPKINS, deceased,
Plaintiffs and Appellants,
VS.

NORTHWESTERN UNION TRUST COMPANY OF HELENA, MONTANA,
et al.,
Defendants and Respondents.
No. 81-404
JAMES V. SMITH and ROSENA A. SMITH,
heirs of LARRY B. SMITH, deceased,
Plaintiffs and Appellants,
vs.
NORTHWESTERN UNION TRUST COMPANY OF HELENA, MONTANA,
et al.,
Defendants and Respondents.

Appeal from: District Court of the First Judicial District,
In and for the County of Lewis and Clark
Honorable Gordon Bennett, Judge presiding.
Counsel of Record:
For Appellants:
Lu*
C. W. Leaphart, . argued and 3%W. Leaphart, C .,
argued, Helena, Montana
For Respondents:
Recht and Greef, Hamilton, Montana
John D. Greef argued, Hamilton, Montana
Kline and Niklas, Helena, Montana

Submitted: February 23, 1982
Decided: May 11, 1982
Filed: MAY 11 1982

. u
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion
of the Court.

Plaintiffs appeal from judgment entered for defendant
and the denial of a new trial motion. This is a negligence
action for wrongful death, brought in the First Judicial
District Court, Lewis and Clark County. We reverse and
remand for a new trial.
The action arises out of an airplane crash in which all
aboard were killed. On September 19, 1978, pilot Herschel
Dean Moore, 111, left Missoula bound for Bozeman at 3:30
P.M. Moore had three passengers in a Piper Archer I1 rented

from Executive Aviation in Missoula. Six miles west of
Hall, Montana, near 4:00 o'clock P.M., the plane crashed
into a hill at 5,500 feet. The accident site was approximately
15 miles southwest of Drummond, Montana.
Pilot Moore, a University of Montana student, had

obtained his pilot's license a month prior to the crash. He
had 71 hours total flying time, including 23 hours solo
time. He was not instrument rated, but was described as an
excellent student pilot by his flight instructor.
Pilot Moore obtained a weather briefing at 1:30 P.M.,

but did not receive a briefing immediately prior to departure
at 3:30 P.M. According to the meteorologist who testified,
the weather improved slightly over Drummond between 1:30
P.M. and 3:45 P.M.; there was a ceiling of broken clouds
which had lifted from 3,500 to 4,000 feet; the wind at 1:30
P.M. was 22 miles per hour; the visibility remained at 12

miles throughout; there was a precipitation area 15 to 20
miles southwest of Drummond. The weather in Bozeman had
deteriorated to Instrument Flight Rules by 4:30 P.M.
 Plaintiffs' position was two-fold. First, plaintiffs
relied upon the legal theory of -- loquitur to establish
res ipsa
liability. Secondly, plaintiffs alleged that the pilot,
being inexperienced, had negligently flown into cloudy,
squally, weather which caused him to become disoriented and
to lose control of the aircraft. Plaintiffs' expert witness
testified that the aircraft went into a descending spiral,
overstressing the wings and tail, and causing the aircraft
to come apart.

Defendant countered with expert testimony which contra-
dicted the "descending spiral" theory espoused by the

plaintiffs' expert. Defendant's expert witness testified
that, because debris was found along an almost straight line
over 2,000 feet in length, the aircraft could not have been
spiraling down. Defendant's experts testified that the left
wing flap of the aircraft came off before the crash and that
this detached flap struck and broke the tail assembly which

controlled vertical direction. Defendant's proof attributed

the cause of the accident to this equipment failure.
The trial court submitted the case to the jury, omitting
plaintiffs' theory of - - loquitur from the jury instruc-
res ipsa

tions. Defendant contended at the trial court level, and
here contends, that -- loquitur is inapplicable because
res ipsa

defendant's experts testified to a cause of the crash which
negated any presumption of negligence. The trial court
agreed.
The jury returned a verdict for defendant on the negligence
issues. Judgment was entered accordingly and plaintiffs
appeal.
Plaintiffs raise the following errors:

(1) The jury verdict for defendant was contrary to the

weight of the evidence and the law.
 (2) The District Court erred in allowing defense
experts to testify regarding defective equipment since such
defense was not raised in the pleadings.
(3) The District Court erred by allowing the defense
to inject the issue of strict liability into a negligence
case.
(4) The District Court erred in not submitting -
res
ipsa loquitur to the jury.
We affirm the District Court's rulings on issues 1, 2,
and 3, but reverse on issue 4.
SUFFICIENCY - - EVIDENCE
OF THE
Plaintiffs contend that the jury's verdict is contrary
to the evidence and to the law. Defendant produced expert
testimony which negated plaintiffs' theory of how the accident
occurred. Plaintiffs' expert witness testified that the
aircraft came apart because it went into a descending spiral.
Plaintiffs proof sought to establish that the descending
spiral resulted from an inexperienced pilot becoming disoriented
in unfavorable weather conditions. Defendant's proof was
designed to show such a theory to be ill-founded since
debris was scattered in a straight line over a distance of
some 2,000 feet. There was clearly a conflict in theories
and proof which required submission of the issue to a jury.
Gunnels v. Hoyt and Balsam (1981), 38 St.Rep. 1492, 633 P.2d
1187. There is sufficient support in the record to uphold
a jury verdict in favor of either the plaintiffs or the
defendant. Therefore, we reject plaintiffs' first contention.
Plaintiffs contend in issue 2 that the District Court
erred in allowing proof of a defense not raised in the
pleadings. Issue 3 concerns alleged District Court error in
allowing injection of strict liability theories. These
issues are intertwined and we treat them together.
Defendant's answer denied that pilot negligence was the
cause of this crash. Pursuant to this allegation, defendant
was entitled to offer proof establishing another cause for

the accident. The expert testimony offered by defendant,
which sought to establish equipment failure as the cause of
the accident, negated plaintiffs1 allegation that the decedent
pilot became disoriented and put the aircraft into a descending
spiral.
Rule 8(c), M.R.Civ.P., does not require the negligence
or conduct of third parties to be pleaded as an affirmative
defense. See also Graham v. Rolandson (1967), 150 Mont.
270, 435 P.2d 263, where this Court held unavoidable accident
did have to be pleaded affirmatively.
Strict liability theories were not involved. Defendant
simply offered equipment failure as the cause of the accident.
The District Court was clearly right in permitting such
proof.
The District Court's failure to give a - - instruction
res ipsa
in this case is the dispositive issue on appeal. Defendant
relies upon two legal principles and primarily two cases in

support of opposition to a -- instruction.
res ipsa First,
defendant contended at the trial court level and contends

here, that the decedent pilot did not have the requisite
degree of control required for application of the --
res ipsa
doctrine. Defendant relies upon Campbell v. First National
Bank (D.N.M. 1973), 370 F.Supp. 1096. Defendant also alleges
that where proof is offered explaining the cause of the
accident in such a way that plaintiffs1 allegations are

refuted, -- loquitur is not available to the plaintiffs.
res ipsa
Defendant relies upon Mets v. Granrud (1980), 37 St.Rep. 313,
314-315, 606 P.2d 1384, 1386.
In Campbell, the Federal District Court held that,
where the pilot rented an aircraft from an agency the morning
before it crashed, "the conclusion is inescapable that the
requisite control over the airplane, in its mechanical as
well as directional aspects, has not been sufficiently
demonstrated to permit the doctrine of - - loquitur to
res ipsa
apply." (370 F.Supp. at 1099.) Plaintiffs here attempt to
distinguish the Campbell decision on the basis that the
evidence in this case showed recent and careful maintenance
whereas no such evidence existed in Campbell. This case can
be distinguished on an evidentiary basis but we find such a
determination to not be dispositive here. We think the

Campbell decision to be too narrow in its application of -
res
ipsa and we are drawn to the broader interpretation found
in Stoddard v. Ling-Temco-Vought, Inc. (C.D. Cal. 1980), 513
F.Supp. 314.

Stoddard involved 14 consolidated wrongful death actions
arising out of an aircraft crash which occurred when a U.S.
Air Force C-135B aircraft crashed into the Pacific Ocean.
Defendant Ling-Temco-Vought, Inc. had made structural changes
to the body of the aircraft and the crash resulted shortly
thereafter. Plaintiff alleged faulty design, construction,
inspection and testing of the aircraft by both the United

States and Ling-Temco-Vought contractors during and after
the modification. Each of the two defendants argued that

-- loquitur had no application because both of the two
res ipsa
defendants could not have "exclusive control."
Judge Paul Hatfield rejected this narrow construction,

holding that -- loquitur had application to multiple
res ipsa
defendants. Judge Hatfield said:
 "LTV, - - and the United States are the
et al.,
only parties arguably responsible for the
accident since other defendant parties to
this lawsuit have apparently been exonerated.
Neither the United States nor LTV can escape
the application of res ipsa loquitur under a
narrow interpretation of the 'exclusive con-
trol' requirement. The facts as presently
alleged suggest that defendants LTV, - -
et al.,
and the United States are both subject to the
doctrine. Nevertheless, if there is sufficient
doubt as to control, that question can become
one for the jury or trier of fact. Northwest
Airlines, Inc. v. Rowe, 226 F.2d 365 (8th Cir.
1955) cited with approval Barnes v. North-
west Airlines, Inc., 233 Minn. 410, 47 N.W.2d
180 (1951)."
In Little v. Grizzly Manufacturing (1981), 38 St-Rep.
1994, 636 P.2d 839, this Court quoted the - ipsa loquitur
res
doctrine from Whitney v. Northwest Greyhound Lines (1952),
125 Mont. 528, 533, 242 P.2d 257, wherein it is stated that:
"When an instrumentality which causes injury,
without any fault of the injured person, is
under the exclusive control of the defendant
at the time of injury, and the injury is such
as in the ordinary course of things does not
occur if the one having such control uses
proper care, then the law infers negligence
on the part of the one in control as the cause
of injury."
The statement quoted is an accurate statement of the
law. However, the court did not state that exclusive and sole
control was a necessary element of a - ipsa case.
res In fact
it is not. The doctrine of res ipsa loquitur is stated in
Restatement of Torts Second, Section 328D, as follows:
"(1) It may be inferred that harm suffered
by the plaintiff is caused by negligence of
the defendant when
"(a) the event is of a kind which ordinarily
does not occur in the absence of negligence;
"(b) other responsible causes, including the
conduct of the plaintiff and third persons,
are sufficiently eliminated by the evidence;
and
"(c) the indicated negligence is within the
scope of the defendant's duty to the plaintiff.
 "(2) It is the function of the court to deter-
mine whether the inference may reasonably be
drawn by the jury, or whether it must neces-
sarily be drawn.
"(3) It is the function of the jury to deter-
mine whether the inference is to be drawn in
any case where different conclusions may reason-
ably be reached."

There are cases where the facts compel the inference of

-- loquitur. See Newing v. Cheatham
res ipsa (1975), 124
Cal.Rept. 193, 540 P.2d 33. In other cases, the inference
is permissive but not mandatory. See Little v. Grizzly
Manufacturing, supra. The question here is whether - -
res ipsa
should be submitted to the jury at all.
Comment g to section 328D, Restatement of Torts Second,
is instructive. The following language is taken from Comment

"It is not, however, necessary to the infer-
ence that the defendant have such exclusive
control; and exclusive control is merely one
way of proving his responsibility. He may
be responsible, and the inference may be
drawn against him, where he shares the con-
trol with another, as in the case of the fall
of a party wall which each of two landowners
is under a duty to inspect and maintain. ..
Exclusive control is merely one fact which
establishes the responsibility of the defen-
dant; and if it can be established otherwise,
exclusive control is not essential to a res
ipsa loquitur case. The essential question
becomes one of whether the probable cause is
one which the defendant was under a duty to
the plaintiff to anticipate or guard against."
The proof of exclusive control assists the plaintiff in
establishing probable cause in a -- loquitur case.
res ipsa
However, concurrent causes may exist and yet not foreclose
reliance upon -- loquitur.
res ipsa
In this case, proof of equipment failure does not deny
the application of -- loquitur for a pilot error may
res ipsa
have combined with equipment failure to produce the result.
Plaintiffs' proof here was reinforced by testimony that a
recent check of equipment had found it to be sound, but
such proof is not essential.
The pilot, Moore, was in exclusive control of the
aircraft at the time the crash occurred. No other occupants
were pilots. The fact that a third party was responsible
for maintaining the aircraft does not foreclose the application
of -- loquitur.
res ipsa To engage such rationale would render

-- inapplicable on the basis that an aircraft was
res ipsa
manufactured by someone other than the pilot and therefore
exclusive control was lacking.
If in fact, the accident speaks of negligence, and if
the undisputed evidence does not show the accident resulted
from the conduct of another, then the doctrine of --
res ipsa
loquitur may attach.
Defendant very properly relies upon our decision in
Mets v. Granrud, supra. In that case, an automobile left
the highway and hit a pole, killing the passenger and injuring
the driver so severely that he could not remember the accident.
The decedent's wrongful death case depended upon the applica-
tion of -- loquitur.
res ipsa This Court affirmed a summary
judgment for defendant and said:
"In the instant case, it is possible that
there was some lapse on the driver's part
and that the driver was negligent, and be-
cause of that, the vehicle went off the road
and collided with the telephone pole. But
it is also possible that the cause of the
accident was not due to the driver's fault;
and that the cause of the accident was the
failure of the brakes to operate, a failure
in the steering mechanism, or some other
reason not due to lack of care on the part
of the driver. See Speiser, The Negligence
Case: Res Ipsa Loquitur, Vol. 2, Section
26.729(
n. 71
1) such a situation, the
balance of probabilities between, first
causes of an accident involving the vehicle
which are due to lack of care on the part
of the driver, and second, causes of an acci-
dent not due to lack of reasonable care, are
 so nearly equal that a conclusion that the
driver was negligent cannot reasonably be
found and would be the result of mere specu-
lation. This conclusion is further support-
ed by the conflicting opinions of Denning
and Godtland concerning the pitman arm and
the cause of the accident."
In the Mets case, the plaintiff argued that a car does
not generally leave the road unless the driver is negligent.
In other words, if the driver had control of his vehicle,
it would not leave the road absent special circumstances not
shown by the evidence in the Mets case. This Court held
that -- had no application because a number of things
res ipsa
could have occurred to cause the vehicle to leave the traveled
portion of the roadway and hit the pole.
The plaintiffs, in the case at bar, argue that the
aircraft would not have struck the hill but for negligence;
the accident itself speaks of negligence. The same argument
advanced by the defendant in Mets is advanced in this case;
i.e., causes other than pilot error are equally as likely to
have produced the accident, and therefore -- does not
res ipsa
have application. There seems to be a strong parallel
between the two cases.
In the Mets case, defense produced an expert witness to
testify that the pitman arm in the steering assembly broke
and, that in his opinion, the broken pitman arm caused the
vehicle to leave the roadway. Such a cause would exonerate
the defendant driver. However, plaintiff countered with
expert testimony showing that the pitman arm broke on
impact.
In the case at bar, expert testimony was offered by the
plaintiffs for the purpose of reinforcing the allegation of
pilot error as primary cause. The defense offered expert

testimony refuting plaintiffs' expert evidence and sought to
explain the accident by showing equipment failure. Defendant
argues forcefully that if -- loquitur was not applicable
res ipsa
to the fact situation in Mets, then it could not be applicable

to the fact situation we have here. In Mets a car, without

explanation, left the road and hit a pole. In this case, an
aircraft flew into the side of a hill without explanation
from occupants of the craft itself. In both cases, explanations
for the accident come from experts reconstructing the accident.

In each case, there is a dispute between experts.
Justice Daniel Shea dissented in Mets. He said:
"It is reasonable to assume that under normal
circumstances automobiles simply do not veer
off the road into a borrow pit unless the
driver has been negligent. The majority con-
clusion that it is possible that the accident
was not due to the driver's fault, that is,
that the cause of the accident may have been
due to brake failure, or some other reason,
is itself mere speculation. The plaintiffs
here were not required to eliminate all pos-
sibilities of how the accident may have hap-
pened. Plaintiffs were required only to
establish a factual basis to infer negligence
on the part of the driver. The inference is
clear in this case; whether the jury would
have accepted this inference is yet another
matter." 37 St.Rep. at 319.

We agree with this statement from Justice Shea's dissent.
The statement is relevant here. An aircraft flying into the

side of a hill speaks of negligence. This case is a proper
one for the application of -- loquitur.
res ipsa To the extent
that Mets is inconsistent with this opinion, it is hereby
overruled.
Defendant relies upon Knowlton v. Sandaker (1968), 150
Mont. 438, 436 P.2d 98. In that case, the evidence established
that a welder was killed when a petroleum tank exploded.
The evidence established that the explosion was just as
likely to have occurred because of the negligence of the
decedent as because of any fault on the part of the defendant.
In addressing equally plausible causes the court said at
page 447:
"To have allowed the case to go to the jury
on the basis of the doctrine of res ipsa
would have allowed the jury to conjecture
between two equally plausible explanations
of the cause of the accident. In such a
case the appellant has failed to establish
that there was a greater likelihood that
respondents' negligence was the proximate
cause of the accident and has thus failed
to satisfy a crucial requirement for the
application of the doctrine of res ipsa
loquitur. See Jackson v. William Dingwall
Co., 145 Mont. 127, 399 P.2d 236."
The facts in Knowlton do not support - ipsa loquitur.
res
The evidence showed that the tank in which decedent was
welding had not been ventilated. There was testimony that
the decedent was told not to weld in the tank if he had any
doubts about the tank's explosive potential. The plaintiff's
case was premised upon defendant's failure to exercise due
care in supplying a dangerous chattel or, in the alternative,
on the basis of - ipsa loquitur.
res The court held that,
"[tlhe evidence as presented by the appellant clearly showed
that the respondents Fruehauf and Sandaker did not have such
exclusive control as would make it likely that their negligence,
if any, was the cause of the injury complained of."
The court in Knowlton found that the conduct of decedent
was just as likely a cause as any conduct on the part of the
defendants. The court said: "To have allowed the case to
go to the jury on the basis of the doctrine of res ipsa
would have allowed the jury to conjecture between two equally
plausible explanations of the cause of the accident." Under
the facts of Knowlton, such a result is compelling.
The decision in Knowlton is not controlling here.
First, the passengers in this aircraft did not contribute to
the cause of the accident. Secondly, there are not two
equally plausible explanations for the accident. Without
any evidence, other than the happening of the accident
itself, -- applies where an airplane crashes into the
res ipsa
side of a hill. When each party to the litigation offers
expert testimony, attempting to explain the accident, equally
plausible alternatives are not thereby presented. The jury
can choose to adopt the testimony offered by one side to the
exclusion of the other. The jury is free to disregard all
of the expert testimony. Where each side produces testimony
seeking to explain an otherwise unexplainable accident,

-- loquitur may, if the necessary elements are present,
res ipsa
have application.
For the foregoing reasons, the trial court erred in
refusing to give a res ipsa loquitur instruction in this
case. Therefore, we remand for a new trial with directions
to proceed in accordance with the views herein expressed.

We Concur:

Chief .gustice P\

Justices
Mr. Justice John C. Sheehy, specially concurring:

In addition to my opinion that the - - loquitur
res ipsa
instruction should have been given in this case, I find a
new trial is required because the verdict in this case is
against the evidence.
It ought to be a matter of judicial notice that a Piper
PA-28 of the type involved here, if it is flown in level
flight within the airspeed recommended by the manufacturer,
and is kept out of clouds, will not come apart in the air.
If that is not true, none of us should ever fly in airplanes.
In this case, there is no evidence from any expert that
the breakup of this aircraft occurred either because of
faulty maintenance and/or because of faulty structural
components in its manufacture.
The witnesses on the ground near the scene of the crash
testified that the day was cloudy and windy with occasional
snow and sleet. They described the temperature as "cold".
They heard the noise of the motor of the aircraft overhead,
but could not see it because of the clouds. They heard the
thud of its crash and saw the wreckage of the airplane
southwest from the position where they had heard the noise
of the motor.
Jeffrey Morrison of Helena, Montana, an experienced
flyer in this region, testified that in his opinion, this
relatively inexperienced pilot, qualified only for visual
flight operations, proceeded into weather which he could
have avoided, and which was beyond his limitations, lost
control of the aircraft, exceeded the limitations of the
aircraft, causing structural damage, which in turn caused
the aircraft to come apart and crash. When asked on cross
examination if he could explain his version of the sequence
of the failure, he answered that he could not but that he
assumed that the tail failed first because the tail pieces
were the first to hit the ground.
In explanation of his opinion, Mr. Morrison testified
that this was a classic case of in-flight breakup in crashes
of this kind. The inexperienced pilot, enclosed in clouds,
becomes disoriented within a matter of 72 seconds; inevitably
the airplane turns with its nose down and there is a rapid
build up of airspeed in a spiral turn, beyond the structural
capability of the aircraft to withstand. The pilot responds
to the situation by overreacting, pulling too strongly and
too quickly on the controls hoping to restore the airplane to
controlled flight. The resulting gravity forces on the
plane break it apart.
Two expert witnesses testified for the defense. Both
Sheldon Roberts, of San Jose, California, an engineering
consultant, and James R. "Bob" Jensen of Los Altos, California,
an engineering consultant, testified to the sequence of the
breakup of the airplane. In essence, they testified that
the left wing flap broke away from the left wing in that
the outboard bracket failed first, the middle bracket next,
and the flap then flailed in the airstream, pulling the
third bracket out of its mooring in the inboard wing. The
left wing flap then struck the left stabilator, a part of

which was torn off. Thereafter, the tail section rotated upward
and counterclockwise, broke off and the crash occurred.
The two California experts based their opinion of the
in-flight breakup upon the positions of bits of wreckage
along the ground up to the point where the plane ultimately
came to rest against the side of the gully. The parts were
strewn over some 2,075 feet.
 Nowhere in the testimony, however, do the two California
experts give the reason for the separation of the left wing
flap. Apart from their version of the sequence of the
breakup, there is nothing of substance in their testimony as
to how or why the crash occurred.
The experts, however, are each strong in their opinion
that the accident could not have happened in the way described
by Jeffrey Morrison because of his supposed assumption that
the tail failed first. They based their opinion on the
distribution of the wreckage.
The distribution of the wreckage was detailed by
investigators for the Federal Aviation Administration.
Along a magnetic compass heading of 325 degrees, those parts
are described in the following sequence:
The first portion of wreckage is the tail cone. The
left stabilator tip was found 675 feet further from the
tail cone. The left flap was found 40 feet to the right
of the left stabilator tip. The stabilator itself was
found 275 feet beyond the left stabilator tip. The skin
from the left wing root was found 120 feet outside the path
of the line of flight, the vertical fin and rudder some 48
feet to the right of the flight path, and the left wing

itself was found approximately 215 feet beyond the vertical
fin and rudder. 800 feet from the left wing the initial
ground impact occurred to the remaining portion of the plane
and a short distance further is the gully in which the plane
came to rest. Of course, all distances are approximate.
My review of the testimony in evidence indicates that
the two experts were speaking from sheer speculation in
refuting Mr. Morrison, and in refuting him, they ignored
several important facets of evidence:
 1. The first piece of wreckage in the line of flight
of the airplane was the tail cone.
2. The left wing had torn away from its root in the
aircraft. The wreckage indicated that the left wing had
been bent downward. This means that the left wing was
inverted to the G forces exerted upon it at the time of the
breakup.
3. The magnetic compass heading for this airplane,
which was on its way to Bozeman from Missoula, would be
approximately 93 degrees. The line of wreckage distribution
as found by the Federal Aviation Administration investigators
was magnetic compass heading 325 degrees. The ground wit-
nesses, however, indicated that the line of distribution of
the wreckage was in a southwesterly direction. If the
federal investigators are right, this plane was headed
toward northern Idaho at the moment of breakup. If the
ground witnesses are correct, the plane was headed toward
California. The proper heading for this airplane if it were
in level undisturbed flight would be nearly due east. The
heading of the plane at breakup confirms Mr. Morrison's

opinion that the plane was in a tight spiral at the time.
4. The left wing flap at the time of initial breakup
was retracted. In this position, the leading edge of the
flap is protected by the left wing itself. In the retracted

position, the forces on the wing flap (drag and lift) are no
greater than the forces exerted on any other portions of the
rear wing surfaces. The only plausible explanation for the
first separation of the left wing flap is the shuddering of
the aircraft caused by its speed beyond its structural cap-
ability, and downward pressure exerted on the left wing
which eventually caused it to break off.
 The sum total therefore of the testimony from the
defendant's witnesses told the jury nothing about the
cause of the breakup of the aircraft in flight. The sole
tenor of their testimony is to dispute the opinion of Mr.
Morrison, who stated he could not describe the exact sequence
of the breakup anymore than could the expert witnesses.
I must therefore conclude that the jury was flim-flamrned
by the impressive degrees and background of the two wise
men from California. They are professional testifiers; Mr.
Jensen advised counsel for the defendant here that his
investigative costs to prepare a case such as this, "probably
the minimum would be near $10,000 but it could run over

$50,000."
In this case, operating under visual flight rules,
the pilot of this aircraft was required to stay out of

clouds, one mile distant horizontally and 1,000 feet above
or 1,000 feet below. Mr. Morrison's opinion was that in
the kind of weather prevailing here, the pilot could easily

have avoided such clouds. That the pilot was flying in the
clouds in this case is indisputable because that is where
the ground witnesses heard the aircraft overhead. He was
a pilot not trained for instrument flying rules. Under the

circumstances, the resultant crash was nearly as predictable
as the time of sunset on September 19, 1978.
A verdict cannot be permitted to stand upon mere
conjecture or suspicion. Fabert v. Northern Pac. Ry. Co.
(1926), 77 Mont. 446, 451, 251 P. 546, 547. When the question
of whether the evidence supports the verdict is before this
Court, we have a duty to review the evidence to decide if
the verdict is supported by substantial evidence. Bernhard
v. L i n c o l n County ( 1 9 6 8 ) , 150 Mont. 557, 560-61, 437 P.2d

377, 380. A v e r d i c t must have s u b s t a n t i a l e v i d e n c e t o

support it. Davis v. Davis ( 1 9 7 2 ) , 159 Mont. 355, 361,

497 P.2d 315, 318. Here t h e r e i s no s u b s t a n t i a l e v i d e n c e

t o s u p p o r t t h e v e r d i c t o f t h e j u r y b e c a u s e t h e r e i s no

e v i d e n c e t h a t t h i s p l a n e would b r e a k u p i n c l e a r s k i e s i n

level flight. S i n c e t h e p l a n e was f l y i n g i n c l o u d s a t t h e

t i m e of i t s breakup, t h e c o n c l u s i o n i s i n e s c a p a b l e t h a t

t h e p i l o t g o t i n t o c o n d i t i o n s f o r which h e was u n t r a i n e d

and u n q u a l i f i e d and which were beyond t h e c a p a b i l i t y o f t h e

plane t o withstand.
Mr. Justice Fred J. Weber dissenting:
I respectfully disagree with the conclusion of the
majority that the failure of the District Court to instruct
on res ipsa loquitur was reversible error. I further respectfully
disagree with what is essentially a revision of the Montana
rule on res ipsa loquitur.
Prior to this case, the rule in Montana has been that,
where a defendant presents an "equally plausible explanation"
for an accident, which is inconsistent with his own negligence,
res ipsa loquitur has no application. Knowlton v. Sandaker
(1968), 150 Mont. 438, 436 P.2d 98, and cases there cited.
In the present case the plaintiffs presented extensive
evidence aimed at proving negligent conduct on the part of
the pilot. Mr. Morrison, a highly qualified and experienced
pilot, gave the plaintiff's "plausible explanation" of the
crash. Mr. Morrison testified as to the cause of the crash
as follows:
"It's my opinion -- that the pilot proceeded
into weather which was beyond his limitations,
lost control of the aircraft, exceeded the
limitations of the aircraft causing structural
damage, causing the aircraft to come apart and
crash. "
In further explanation of his view of the cause of the
crash, Mr. Morrison stated as follows:
"Q. So I take it it's your opinion that Dean
(the pilot), when he -- in your opinion when
he was attempting to take the plane out of the
spiral, he misused the yoke which put the
extra stress on the tail section and caused
that section to fail first, is that true?
"A. Yes."
In substance, Mr. Morrison indicated that by pulling back on
the yoke, which controls the tail section, the pilot placed extra
stress or strain on that section so that it failed and broke
off. unfortunately that conclusion is not consistent with
the location of the wreckage. While Mr. Morrison is a
highly qualified pilot, he had not examined either the site
of the accident or the aircraft wreckage. His explanation
of the cause of the accident was more in the nature of a
response to a hypothetical question based upon his years of
flying experience in Montana.
The defendant's "plausible explanation" of the crash
basically was contained in the testimony of its experts,
Roberts and Jensen. These men had investigated more than
one hundred aircraft crashes, including several involving
Piper PA-28's like the one involved in the present accident.
They had outstanding qualifications as engineers, aircraft
designers and investigators of aircraft collisions. These
experts had studied the wreckage of this particular aircraft
at length, examined the wreckage distribution information,
and conducted painstaking tests to determine the nature and
pattern of the breakup. When they testified, their conclusions
were backed up by detailed explanations. The uncontradicted
testimony of these two experts showed that the aircraft
disintegrated in the air long prior to impact, and that the
order of disintegration of the aircraft was as follows: the
left wing flap came loose, starting at the outside edge, and
swung around until it tore loose at the inside edge from
the wing root structure; and the flap then rotated sharply
through the air striking the stabilator which is the horizontal
tail surface, cutting off the left side of the stabilator;
after which the remainder of the stabilator twisted off in

one piece, and thereafter the rudder assembly itself tore
off. The next part to come off was the left wing itself and

it failed at the wing root. Next the fuselage of the aircraft
struck the ground. The wreckage essentially was in a straight
line spread out over a distance in excess of 2,000 feet.
Witness Jensen testified that in his opinion he could not

find any evidence that pilot error could have caused the
wing flap to have come off first. He could not see how in

flying and manipulating the flight controls, the pilot could
have placed the kind of stress upon the plane which would
have caused the left flap to fail in this manner. His testimony
and that of witness Roberts showed that the flap itself was

in the up or retracted position. Mr. Jensen was asked
about the Morrison theory that the accident was the result

of a spiral dive in which the aircraft gained speed, at which
point the pilot pulled back on the yoke overstressing it,
and the tail section came off the plane first. Mr. Jensen
testified that it could not have happened in that way. He

pointed out that in investigating other in-flight breakups
on the same type of aircraft, where the breakup had been
from overstressing, he found that the stabilator failed

symmetrically so that both halves broke off right at the
spar. That was not the manner in which this stabilator

broke. First the tail tip came off, and then the balance of

the stabilator twisted off. Mr. Jensen further emphasized
that the wreckage distribution is not consistent with a
spiral type of flight. The conclusion is unrebutted that

the disintegration of the aircraft in the air in this manner
was both unique and unusual. In particular, such disintegration
is as consistent with a failure of the aircraft from inadequate
maintenance, or failure of the aircraft from wind shear, as

with stress caused by pilot error.
The verdict for the defendant, suggests the jury believed
the "plausible explanation" of the defendant. Where the
evidence shows two plausible explanations, the doctrine in
Montana has been that res ipsa loquitur is not applicable.

As stated in Knowlton v. Sandaker:

"To have allowed the case to go to the jury
on the basis of the doctrine of res ipsa
would have allowed the jury to conjecture
between two equally plausible explanations
of the cause of the accident. In such a
case the appellant has failed to establish
that there was a greater likelihood that
respondents' negligence was the proximate
cause of the accident and has thus failed
to satisfy a crucial requirement for the
application of the doctrine of res ipsa
loquitur." 150 Mont. at 447-448, 436 P.2d
at 103.
Without expressly so stating, the majority opinion apparently
overrules Knowlton v. Sandaker.
With regard to the element of exclusive control by the

defendant in a res ipsa case, Knowlton v. Sandaker following
the rule in many other Montana cases stated:
"'The res ipsa loquitur doctrine simply stated
is this: That when an instrumentality which
causes injury, without any fault of the injured
person, is under the exclusive control - -
of the
defendant at the time of the injury, and the
injury is such as in the ordinary course of
things does not occur if the one having such
control uses proper care, then the law infers
negligence on the part of the one in control
as the cause of the injury.'" (Underscoring
added.) 150 Mont. at 446, 436 P.2d at 103.

This of course suggests that exclusive control on the part
of the defendant is necessary. The majority opinion refers
to Campbell v. First National Bank (D.N.M. 1973), 370 F.Supp.
1096, in which the Federal District Court had held that
where a pilot rented an aircraft, the conclusion is inescapable
that the requisite control has not been sufficiently demonstrated
to permit the doctrine of res ipsa to apply. The majority

opinion relied on Stoddard v. Ling-Temco-Vought (C.D. Cal.
1981), 513 F.Supp. 314, in order not to apply the Campbell
rationale to the facts in this case where the defendant
pilot had also rented the aircraft. In doing so, the majority
has not followed the express holding of Stoddard v. Ling-

Temco-Vought (LTV). In that case, an Air Force jet had

crashed, killing several persons, just 38.2 hours after LTV had
completed extensive structural modifications and returned
the plane to the Air Force. The survivors sued both the
Air Force and LTV. The federal court refused to apply a
narrow definition of "exclusive control" and stated:

"If it can be shown that there was joint res-
ponsibility for the safe operation of this
aircraft neither defendant need have exclu-
sive control. . . The doctrine [R.I.L.] may
still be suitable where it is shown that one
defendant had control over the instrumentality
but later relinquished control to another."
513 F.Supp. at 321.
The Stoddard court recognized that exclusive control

had been "expanded to encompass multiple defendants who are
charged by law with joint responsibility for the instrumentality
of injury." (Emphasis added.) 513 F.Supp. at 321-322.

The fact situation in the present case is that Executive
Aviation maintained the aircraft and Moore piloted it. Had
the plaintiffs sued both Executive Aviation and the pilot's

estate, a res ipsa application under Stoddard v. Ling-Temco-
Vought would appear to be valid because exclusive control
then would have been shown in both defendants. That is the
holding of Stoddard. Here Moore's estate was the sole
defendant and exclusive control has not been shown in him.
The result of the majority opinion is the overruling of
Knowlton v. Sandaker, supra, Little v. Grizzly Manufacturing

(1981), Mont. , 636 P.2d 839, 38 St.Rep. 1994,
Whitney v. Northwest Greyhound Lines (1952), 125 Mont. 528,
242 P.2d 257, and numerous other Montana cases. As I read

various of the Montana cases on res ipsa loquitur I am
frankly puzzled as to the status of res ipsa in Montana.
Perhaps it would have been simpler had the majority merely
stated that all previous cases on res ipsa loquitur were
being overruled.
I would affirm the holding of the District Court in
denying the use of the res ipsa instruction.
I would suggest that the present instruction on res
ipsa loquitur in the Montana Jury Instruction Guide (No.
22.00) be revised so as to be consistent with today's opinion.
The revision should make the instruction broadly permissive
in view of today's relaxation of the standards which determine
when an offered res ipsa instruction must be given. Ironically
the standards actually applied in the majority opinion are
more relaxed than those in the offered instruction as well
ss those in the permissive federal instruction.
/c"l///