Muncie Aviation Corporation, Plaintiff-appellee, v. Party Doll Fleet, Inc., Defendant-appellant, 519 F.2d 1178 (5th Cir. 1972)

The primary issue this appeal presents is whether advisory materials not having the force and effect of law but published by a governmental agency, are admissible as an exception to the hearsay rule, when such materials are relevant to the issue of negligence and are otherwise trustworthy. We hold that they are admissible and affirm the judgment below.

This case arose out of a collision between Muncie Aviation Corporation's Piper Seneca aircraft and Party Doll Fleet's Cessna 310-J aircraft on March 1, 1972, at the Cartersville-Barstow County Airport in Georgia. Muncie sued for damages to its aircraft, alleging negligence by Party Doll's pilot in failing to follow the standard landing traffic pattern procedures at an uncontrolled airport, and in failing to familiarize himself before the flight with advisory materials issued by the Federal Aviation Administration (F.A.A.). The defendant counterclaimed, alleging negligence by the plaintiff's pilot in failing to yield the right-of-way and in failing to maintain a properly working radio in the aircraft. The jury returned a verdict in favor of Muncie, the plaintiff. Following the trial court's denial of a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, Party Doll appealed.

Of the grounds assigned by the appellant to reverse the judgment below, all of which the Court has considered, the most significant, in terms of this decision's effect on the law, is the alleged error of the trial court in permitting the plaintiff to introduce two advisory circulars promulgated by the F.A.A. containing recommended landing procedures for pilots approaching uncontrolled airports such as the Cartersville-Barstow field. The recommendations, though merely advisory and without the force or effect of law, were offered by the plaintiff as evidence of the standard of care customarily followed by pilots approaching uncontrolled airports. Entitled "Traffic Advisory Practices at Non-Tower Airports," the circulars recommended that pilots approaching an uncontrolled field broadcast their approach over a plane-to-plane frequency of 122.9. They further recommended that this broadcast be made during each of the various "legs" of the standard landing traffic pattern. On cross-examination, the defendant's pilot testified he had neither broadcast his approaching landing over the recommended frequency, nor followed the traffic pattern referred to in the circular, but had instead, broadcast his approach over a 122.8 Unicom frequency.

The defendant objected to the introduction of the circulars, contending that they were merely opinions of the writers, and had not been consulted by the defendant's pilot. The trial court, conceding that the circulars were without the force or effect of law, admitted the publications, as well as testimony of their contents, as evidence of practices customarily followed by pilots at uncontrolled airports and thus, relevant to establish the standard of care in determining negligence. At no time did the court instruct the jury that either the circulars themselves or the inference of custom derived from their contents and the testimony relating to them was dispositive of the applicable standard of care. Rather, they were admitted to provide the jury with guidelines for determining what procedures were followed by pilots in the ordinary course of such landings and to assist the jury in measuring ordinary negligence.

The relevance of the circulars to the issues of the defendant's negligence and the plaintiff's contributory negligence is manifest. Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.¹  Compliance or noncompliance with such custom, though not conclusive on the issue of negligence, is one of the factors the trier of fact may consider in applying the standard of care.²  Both the defendant's and the plaintiff's pilots testified to their general familiarity with the F.A.A. advisory materials, and other witnesses testified that the landing procedures recommended in the circulars were generally followed. The trial court was justified therefore in concluding they were relevant evidence of customary practices among aircraft pilots.³  Thus, the references in the circulars to the various "legs" of the standard traffic pattern were relevant to prove that the defendant's pilot, in failing to execute the standard pattern, fell below the standard of care ordinarily exercised by pilots in similar circumstances. Similarly, the broadcasting frequency recommended in the circulars was relevant to rebut the charge of the plaintiff's contributory negligence, by demonstrating that even had the plaintiff's pilot been flying with a properly operating radio tuned to the recommended frequency, he would not have heard the defendant's pilot announcing his landing over another frequency.

It should also be noted that the circulars were relevant to show the defendant's noncompliance with a specific F.A.A. regulation requiring every pilot, before beginning a flight, to familiarize himself with all available information concerning that flight.⁴  To the extent the defendant's pilot failed to consult the advisory circulars or to follow their recommendations, the jury could permissibly infer that he failed to meet the appropriate standard of due care. Thus, the recommendations contained in the F.A.A. advisory circulars, whether offered as evidence of the landing procedures customarily followed by pilots at uncontrolled airports, or to show noncompliance with a specific F.A.A. regulation having the force and effect of law, were clearly relevant to the issues of the defendant's negligence and the plaintiff's contributory negligence.

We cannot say that the trial court's admission of the advisory circulars violated the general prohibition against the use of hearsay. Hearsay is usually defined as the use of an out-of-court statement for the truth of matters asserted in the statement.⁵  Assuming for purposes of this opinion that the F.A.A. advisory circulars were hearsay,⁶  the applicable law governing their admissibility is Federal Rule of Civil Procedure 43(a).⁷  By "enabling federal courts to apply a liberal, flexible rule for the admissibility of evidence, unencumbered by common law archaisms",⁸  Rule 43 provides considerable leeway for expanding the traditional exceptions to the hearsay rule when the relevancy, trustworthiness, and probative value of the evidence is otherwise guaranteed.

In Dallas County v. Commercial Union Assurance Co., 5 Cir. 1961, 286 F.2d 388, this Court adopted the policy of Rule 43(a) by upholding the admission of an unsigned newspaper article written 58 years before, recounting the details of a then recent fire in the Dallas County Courthouse, to prove the courthouse had been previously damaged by fire. Analyzing the rationale underlying the hearsay rule and its exceptions, we decided the primary criteria for permitting the introduction of otherwise inadmissible hearsay were the elements of necessity and trustworthiness. Sufficient necessity for the introduction of the newspaper clipping was found in the impracticability of attempting to locate the author of the article and of attempting to procure eyewitnesses to the fire whose recollection would have been accurate at the time the case was tried. Trustworthiness was found in the general reliability of a small town newspaper in reporting the occurrence of a local fire, and in the absence of any motive to falsify.

The elements of practical necessity and trustworthiness are similarly present in the instant case. The virtual impossibility, not to mention practical inconvenience and prohibitive cost, of locating and calling as witnesses the various compilers of the advisory circulars in order to test their recommendations by cross-examination, makes use of the circulars a practical necessity for obtaining the information contained in the recommendations. Their trustworthiness is guaranteed by the fact that they were recently published by a governmental agency whose only conceivable interest was in insuring safety and whose recommendations "should have the highest probative value regarding national, state, or local practices."⁹ 

In holding admissible advisory materials promulgated by a governmental agency, this Court's decision is in accord with the modern trend of cases finding national safety codes representative of "a consensus of opinion carrying the approval of a significant segment of an industry" and offerable as exemplifying safety practices prevailing in the industry.¹⁰  Courts have become increasingly appreciative of the value of national safety codes and other guidelines issued by governmental and voluntary associations to assist the trier of fact in applying the standard of due care in negligence cases.¹¹  Though the law is by no means settled,¹²  this Court finds that the inherent trustworthiness of such codes and recommendations, coupled with the need for their introduction in order to impart relevant information not contained elsewhere,¹³  is sufficient to justify their admission, notwithstanding the traditional dangers of hearsay evidence.

The rule of admissibility announced today is not, of course, absolute. It is always within the trial court's discretion to exclude published recommendations or standards if they fail to meet the threshold tests for trustworthiness and relevancy. For example, if the guidelines were published so long before the events in question occurred as to be outmoded, or if practices within the industry had changed radically since the guidelines were promulgated, a court could, without abusing its discretion, properly exclude the evidence.¹⁴ Similarly, if the guidelines were not published until after the events in question occurred the court could properly exclude them for lack of relevancy.¹⁵ 

In addition to Rule 43(a) and the modern trend favoring the admissibility of national safety codes and recommendations, additional support is lent the decision today by Rules 803(24) and 804(b) (5) of the new Federal Rules of Evidence. These rules permit the introduction of hearsay statements not covered by any of the specifically enumerated exceptions, on a preliminary finding of trustworthiness, relevancy, and practical necessity.¹⁶  The federal rules are the culmination of years of research and study and represent the most enlightened views on the law of evidence. In holding admissible advisory materials published by a governmental agency, where relevant, trustworthy, and of practical necessity, our decision furthers the policy embodied in these federal rules.

The trial court's decision to admit the advisory circulars was not error. The charge was free from reversible error. The verdict of the jury was in accordance with the law and was supported by substantial evidence. For the foregoing reasons, the judgment of the district court is

Affirmed.