ROBERTSON, JUSTICE, FOR THE COURT:
Today's appeal arises from the fatal flight of a Memphis-based Beechcraft Bonanza B-36 airplane which experienced severe icing and crashed near Joplin, Missouri, killing pilot and passenger. The passenger's survivors have brought a wrongful death action in this state, suing the estate of the deceased pilot and everyone else in sight. Apparently crediting an assumption of risk defense theory, the jury found for the four defendants who had not been dismissed summarily. In due course, the trial judge held that he had erred in submitting the issue of assumption of risk to the jury and granted a new trial.
Believing the interests of litigant and judicial economy may be served thereby, we accepted Defendants' interlocutory appeal to settle the controlling issues of law prior to retrial. We affirm in part and reverse in part.
The facts of the case are relatively simple - the cast of characters and reach of potential liability and identification of law governing same quite complex.
The Plaintiffs are (1) Glenda J. Ritter, second wife of Jack
Ritter, Jr., married to him at the time of the fatal accident and a resident of Olive Branch, Mississippi; (2) the minor children of Jack Ritter, Jr., who all live in Holly Springs, Mississippi, represented by their mother, Rebecca F. Ritter, divorced from Jack in 1979. Plaintiffs are Ritter's personal representatives, Miss. Code Ann. 11-7-13 (Supp.1989), and are Appellees here.
Appellants today, and among the corporate and individual parties originally named as Defendants *fn1 in this action are: (1) A. Stephen McDaniel, Administrator of Estate of Alton Jerry Speaks, deceased, who was alleged to be the pilot of the aircraft at the time of the accident; (2) Southern Institute of Aviation, Inc. d/b/a Memphis Jet Center (hereafter" SIA "), a Tennessee corporation with its principal place of business in Memphis, the aircraft charter company which had rented the plane to Speaks and Ritter; (3) Memphis Aviation, Inc., d/b/a Memphis Jet Center, a Tennessee corporation affiliated with SIA and responsible for the maintenance of the Memphis Jet Center charter fleet of aircraft; and (4) J. B. Gaiennie, a Memphis, Tennessee resident, the owner of record of the Beechcraft Bonanza.
Jack Ritter and Alton Jerry Speaks were marketing agents (salesmen) for various agricultural supply and leasing corporations, some of which were partially owned by Speaks. Ritter was a resident citizen of Olive Branch, whose base of business operations lay in Memphis. Speaks was a resident citizen of Memphis, where he had his business base as well. Both held pilot's licenses, although Speaks was by far the more experienced of the two.
On March 19, 1984, Speaks rented a Beechcraft Bonanza aircraft from SIA in Memphis and flew Ritter and himself to Springfield, Missouri. Later the same day, their business in Springfield completed, the two decided to fly to nearby Joplin some thirty minutes away for a social visit to Speaks' mother-in-law. They departed Springfield without obtaining a full weather briefing. En route, the Beechcraft Bonanza B-36 experienced severe icing conditions, became weighted down by" rime ice "(a particularly dangerous form of frozen froth), and crashed while attempting to land near Joplin, killing the two men.
Ritter's survivors commenced this wrongful death action on November 2, 1984 in the Circuit Court of Hinds County. Plaintiffs charged Speaks with negligent aviation and demanded judgment of and from his estate. Plaintiffs further charged liability on the part of SIA, Memphis Aviation, and Gaiennie upon the allegations that these corporate and individual owners were negligent in the lease, maintenance and ownership of the crashed aircraft. In addition, Plaintiffs alleged that Miss. Code Ann. 61-11-1, et seq. (1972) and the Federal Aviation Act of 1958, 49
U.S.C. 1301 (1970), impose strict vicarious liability upon the owners and lessors of aircraft.
Trial began in the Circuit Court of Hinds County on May 18, 1987. At the close of the evidence, the Circuit Court held Speaks negligent in piloting the Bonanza, and that his negligence proximately caused Jack Ritter's death. The Court granted Plaintiffs a directed verdict on those issues. Rule 50 (a), Miss.R.Civ.P.
Of significance was the Circuit Court's ruling on the defense of assumption of the risk. The Court refused Plaintiffs' request for a comparative negligence instruction, submitting to the jury only whether Ritter had assumed the risk of injury or death by accompanying Speaks into weather which he, as a pilot himself, must have known to be dangerous. Both parties had drafted assumption of the risk instructions. See Rule 3.09, Unif.Cir.Ct. Rules. The Court submitted to the jury that offered by the Plaintiffs. In due course, the jury returned a verdict for all Defendants. Plaintiffs timely moved for a new trial, Rule 59, Miss.R.Civ.P., and the Court granted Plaintiffs' motion, holding that it had erred in granting the assumption of the risk instruction.
The Defendants then moved the Circuit Court to allow an interlocutory appeal of all issues in the case which had been resolved adversely to them. On January 26, 1988, the Circuit Court denied this motion. The Defendants then petitioned this Court for leave to appeal the Circuit Court's grant of a new trial, again raising the various issues upon which they had not prevailed in their various summary judgment motions. By order entered March 16, 1988, this Court granted the interlocutory appeal.
At the outset, the Plaintiffs/Appellees, the Ritters, seek to limit the issues presented for review. Their premise is that the order granting the new trial is all that is the subject of this interlocutory appeal. Since that order addressed only the assumption of the risk/comparative negligence jury instructions, the appeal should be limited to those issues, or so we are told. The Ritters rely upon the Circuit Court's denial of the defendants' motion for interlocutory appeal relating to the broader range of issues.
Our appellate jurisdiction extends to cases and not just issues. While we normally limit our review to specific issues presented by the parties, that limitation is one of expedition and not jurisdiction, else how our familiar plain error rule.
See Rule 28 (a)(3), Miss.Sup.Ct. Rules; and Rule 103 (d), Miss.R.Ev. Interlocutory appeals are no different.
Interlocutory appeals are governed by Rule 5, Miss.Sup.Ct.Rules. By its own terms Rule 5 does not require certification of the issues by the lower court. The rule states:
An appeal from an interlocutory order may be sought if the order grants or denies certification by the trial court that a substantial basis exists for a difference of opinion on a question of law . . . .
The Advisory Committee Comment to Rule 5 notes:" the rule contemplates that either the trial court will grant an interlocutory appeal subject to appellate review of that decision, . . . or the Supreme Court will grant the appeal itself. "Under Rule 5, the scope of the issues presented for appellate resolution is ordinarily and practically restricted only by the contents of the petition presented to this Court pursuant to Rule 5 (b), not the order of the trial court. Moreover, once a case becomes subject to our appellate jurisdiction, we have authority to address all matters as may appear in the interests of justice and economy. *fn2
Of course acceptance of this appeal is not obligatory in any sense, and for pragmatic reasons we deny most petitions for interlocutory appeal. The grant of a new trial may not be appealed of right, as there has been no final judgment. Maxwell v. Illinois Central Gulf Railroad, 513 So. 2d 901, 908 (Miss. 1987); Bowman v. Rutledge, 369 So. 2d 768, 769 (Miss. 1979); Street v. Lokey, 209 Miss. 412, 413, 47 So. 2d 816 (1950). We have precedent of recent vintage for discretionary grant of an interlocutory appeal from an order granting a new trial. Clark v. Viniard By and Throuqh Viniard, 548 So. 2d 987, 988 (Miss. 1989). The parties have completed an expensive and time consuming trial and face another. Difficult issues have been sharply contested. Appellate consideration of those issues at this time likely will" materially advance the termination of the litigation and avoid exceptional expense to the parties. "Rule 5 (a)(1), Miss.Sup.Ct. Rules. We have exercised our discretion, granted the interlocutory appeal, and now consider and decide the issues discussed below.
The Defendant/Appellants argue that they may not be held subject to in personam jurisdiction in Mississippi. Because of the disposition we make of the case on other issues, *fn3 we need only consider the point with respect to defendant/appellant
Stephen McDaniel, Administrator of the Estate of Alton Jerry Speaks, deceased.
Two distinct questions must be addressed. *fn4 First, we inquire whether the estate of Speaks was amenable to suit here by virtue of the Mississippi Long Arm Statute. Miss.Code Ann. 13-3-57 (Supp.1989). Assuming an affirmative answer there, the question is whether the estate of Speaks may be amenable to suit in Mississippi consistent with the due process clauses of the federal constitution, and, as well, this state's constitution, that is, the familiar minimum contacts rule.
A. Mississippi Long Arm Statute Section 13-3-57, in relevant part, declares
Any non-resident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution or laws of this state as to doing business herein, who shall . . . do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi.
Any such non-resident is declared amenable to suit in Mississippi" in any actions or proceedings accrued or accruing from such act or acts, or as an incident thereto . . . . "[Emphasis supplied] This latter clause will acquire significance below.
The Long Arm Statute specifically addresses the power of a Mississippi court to gain in personam jurisdiction over a foreign executor or administrator:
Any such cause of action against any such nonresident, in the event of death or inability to act for itself or himself, shall survive against the executor, administrator, receiver, trustee, or any other selected or appointed representative of such nonresident.
The doing of such business, or the engaging in any such work or service in this state, or the making of such contract, or the committing of such tort in this state, shall be deemed to be a signification of such nonresident's agreement that any process against it or its representative which is so
served upon the secretary of state shall be of the same legal force and effect as if served on the nonresident at its principal place of business in the state or country where it is incorporated and according to the law of that state or country.
Miss. Code Ann. 13-3-57 (1972 & Supp.1989) [emphasis supplied].
The use of the word" representative "(1) encompasses executors and administrators of an estate and (2) contemplates that the actions of a decedent during his lifetime which would have rendered him amenable to suit here will similarly subject his administrator or executor (i.e. his personal" representative ") to in personam jurisdiction in Mississippi.
Such a view is consonant with the Restatement (Second) of Conflict of Laws, 358 (1971) which declares:
An action may be maintained against a foreign executor or administrator upon a claim against the decedent when the local law of the forum authorizes suit in the state against the executor or administrator and
(a) suit could have been maintained within the state against the decedent during his lifetime because of the existence of a basis of jurisdiction other than mere physical presence, or
(b) the executor or administrator has done an act in the state in his official capacity.
Determinations of whether a defendant is" doing business "within the state proceeds on an ad hoc basis. Miss Cal 204, Ltd. v. Upchurch, 465 So. 2d 326, 330 (Miss. 1985); S & A Realty Co. v. Hilburn, 249 So. 2d 379, 382 (Miss. 1971). Our review of jurisdictional issues is essentially de novo:" In making this determination, this Court is in the same position as the trial court, since all facts are set out in the pleadings or exhibits, and ...