THE GRAY EAGLES, INC.
v.
LUCCHESI
Docket No. 9486.
Michigan Court of Appeals.
Decided December 6, 1971.Wisti & Jaaskelainen, for plaintiff.
*323 McLean & McCarthy, for defendant.
Before: R.B. BURNS, P.J., and LEVIN and T.M. BURNS, JJ.
R.B. BURNS, P.J.
Plaintiff instituted this action for damages to its airplane, piloted by defendant, resulting from an emergency landing. Plaintiff based its case on two theories of recovery; one in negligence and the other in bailment. The jury returned a verdict of no cause of action.
Plaintiff claims the trial court erred in its instructions as to its bailment theory. Neither party disputed that the bailment was for the mutual benefit of both parties and in such a case in the absence of a contractual duty to the contrary, a bailee is liable only for ordinary negligence. Godfrey v. City of Flint (1938), 284 Mich 291.
Plaintiff's theory at trial, however, was that the common-law liability of ordinary negligence was contractually supplanted to create absolute liability. This modification of liability was a matter of dispute, however, and because the bailment contract was oral, the credibility of the parties was of permanent concern. In its instructions to the jury the trial court correctly stated that plaintiff's alternative theory to negligence was "its theory of bailment or contract" and that plaintiff "must prove the existence of an agreement and its terms".
But in advising the jury as to the duties and liabilities arising out of a bailment contract the court was confusing and plaintiff's theory of strict liability was lost. At one point the instructions on the bailment theory seem proper:
"The duties and obligations and liabilities of the parties arising out of the bailment are based upon *324 the conditions of the bailment as understood by both parties." (Emphasis supplied.)
In subsequent instructions the rule of liability arising out of the bailment agreement was changed:
"To ascertain rights, duties, and liabilities of the parties it is usually necessary to determine whether a bailment is * * * for the mutual benefit of both parties.
* * *
"You may find that the contract of bailment here under consideration is one for the mutual benefit of both parties; and then the defendant was bound to exercise ordinary care in the airplane; that the defendant is liable for ordinary negligence, if you find the defendant was guilty of ordinary negligence." (Emphasis supplied.)
The ordinary negligence rule in bailment was not plaintiff's theory and its timely objection to this latter instruction was well taken. Upon reviewing the entire instructions we feel plaintiff was denied its right to have its bailment theory properly presented to the jury. See Horst v. Tikkanen (1963), 370 Mich 65; Carey v. Toles (1967), 7 Mich App 195.
Reversed and remanded for trial as to plaintiff's bailment theory of strict liability.
All concurred.