
    Transcontinental Airport of Toledo, Inc., v. Ogden.
    (Decided January 18, 1932.)
    
      Messrs. Tracy, Chapman <$> Welles and Mr. Frank A. Harrington, for plaintiff in error.
    
      Messrs. Kirkhride, Boesel, Frease Cole, Mr. S. Geismar and Mr. Arthur H. Ewald, for defendant in error.
   Richards, J.

This action was brought by Clarence E. Ogden to recover the value of an airplane which he had left at the airport as a bailment, and which was destroyed and never returned to him. This is the second trial of the action, the first trial resulting in a verdict and judgment for the airport company, which was reversed by this court on February 2, 1931, and is reported in 39 Ohio App., at page 301,177 N. E., 536. The case was again tried, the retrial resulting in a verdict and judgment in favor of Ogden for $9,200, the value of the plane. It will not be necessary to restate the facts, for they are substantially the same as shown on the first trial, as set forth in the above opinion.

The claimed errors now relied on are that the trial judge refused to give certain instructions before argument, and erred in the general charge, and that the verdict is excessive.

The errors of- law which are claimed to exist arise out of the failure of the trial judge in the general charge to charge upon the second defense, and in refusing to give instructions thereon before argument.

The plane was destroyed while being flown by Ted Hay in what is claimed to have been a test flight. The second defense avers only that Harold A. Speer, who had left the plane with the airport company, authorized Hay to test the plane by flying. If Speer was authorized to give such authority and did give it to Hay, the court was in error, but we find no evidence in the record that Speer had authority to permit any person to fly the plane, or that he authorized Hay to fly it.

Ogden, who owned the plane, was about leaving Cincinnati for California, and before going authorized Speer to use the plane in seeking to dispose of' the assets of a company in which he was interested, and of course empowered him to have any necessary repairs made. On a return flight from Jackson, Michigan, and Detroit, Speer stored the plane at the Toledo airport, because the zero weather caused the oil to congeal. His tentative arrangement with Hay to fly the plane to Cincinnati was only to become effective in the event that he (Speer) received permission from Ogden, and in the event that he transmitted that authority to Toledo by Wednesday night, January 16th. He did not receive authority from Ogden, and did not, after his return to Cincinnati, communicate with any one at the Toledo airport. Wednesday morning, Hay, with the assistance of Harmon, who was manager of the company, took the plane out of the hangar and flew it, claiming that it was being done to test the plane before flying it to Cincinnati.

In the face of the positive direction of Speer that the plane was not to be flown by any one except himself, without the consent of Ogden, and in the face of the fact that no authority had come from Ogden, they had no right to fly the plane in order to determine whether it was in condition for a possible prospective trip.

No mechanical trouble existed with the plane, the only difficulty having been that the oil congealed two or three days earlier during zero weather. The evidence shows that the plane could have been tested while standing on the ground with the engine running. Clearly the temperature on Wednesday was much warmer than on Sunday and Monday, for there was a low-lying fog, and other planes had no difficulty in flying, because a group of them arrived that morning at the airport for the purpose of transporting a large quantity of airmail. If the contention of the airport company is correct, the owner of an airplane would be in a very unfortunate situation, if, without any authorization from him, his operating agent could allow others to fly the plane; or if, while stored at an airport on account of zero weather, the airport company, having knowledge of his lack of authority, could authorize and aid a stranger to fly the plane. What the owner sought to guard against was having anybody except Speer fly the plane for any purpose, and the owner was entitled to that protection. A test flight would be as dangerous, from the standpoint of the owner, as any other flight.

We do not find the judgment to be excessive.

Judgment affirmed.

Lloyd and Williams, JJ., concur.  