                           No. 81-401
              IN THE SUPREME COURT OF THE STATE OF MONTAN
                               1982


TERRY G. JOHNSON,
                        Plaintiff and Appellant,


NORTHWEST ORIENT AIRLINES and
HAROLD LEINES, Station Manager,
                        Defendant and Respondent


Appeal from:    District Court of the Fourth Judicial District,
                In and for the County of Missoula
                Honorable James Wheelis, Judge presiding.
Counsel of Record:
    For Appellant:
         Terry G. Johnson, Pro Se, Lolo, Montana
    For Respondent:
         Boone, Karlberg and Haddon, Missoula, Montana


                             Submitted on briefs: February 11, 1982
                                          Decided:   #((   8'8
Filed:   MAR 2 5 1982


                   V
                                      Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o r l              delivered         the    Opinion        of
the Court.

           Plaintiff              Terry        Johnson            sued       Northwest             Orient

Airlines          (Northwest)              for    canceling            a     Billings-Missoula

flight.          The F o u r t h J u d i c i a l        District,          i n and f o r M i s s o u l a

County,          entered          summary         judgment           for      Northwest.               The

p l a i n t i f f appeals.

           On December             12,       1979,      plaintiff          bought a        round     trip

Missoula-Billings                 ticket       from N o r t h w e s t .         On December            22,

1979,     plaintiff's             sckieduled           return      date,       Northwest           issued

the plaintiff             a boarding pass f o r the Billings-Great                                 Falls-

Iviissoula-Spokane            £1 i g h t .       But,      weather         conditions         at    take-

off    time,       9:50      a.m.,       prevented           Northwest          from     landing        in

Missoula.          T h e r e f o r e , a l l M i s s o u l a p a s s e n g e r s were p l a c e d o n

a   Billings-Helena               flight         and     were     then       taken      by    bus    from

Helena      to      Missoula.              Plaintiff           was    offered        a       check     for

$29.70,      t h e s a v i n g s on h i s a l t e r n a t i v e t r a n s p o r t a t i o n .          The

c h e c k was r e t u r n e d s e v e r a l m o n t h s l a t e r , a f t e r t h i s s u i t was

initiated.

           Plaintiff          a l l e g e s he         arrived       horne    eight      hours       late

because      of     the      flight cancellation.                     He e a r n e d $ 1 5 3 , 0 0 0    in

1 9 7 9 , w o r k i n g 3,ld00 h o u r s a t $ 5 0 a n h o u r .                As   an insurance

agent,      he     claims h i s          weekends          are    particularly             lucrative,

e a r n i n g him more t h a n $100 a n h o u r f o r t e n h o u r s a d a y .                         He

is s e e k i n g $1,000 damages f o r t h e l o s s o f a ten-hour                             day and

$122 r e f u n d f o r h i s p l a n e f a r e .

           This       appeal         revolves           around        whether        the      District

Court      erred        in    granting           Northwest's               motion       for    summary

j udgment    .        The     District           Court        determined          there       were      no

material         i s s u e s of    f a c t and         t h a t N o r t h w e s t was e n t i t l e d t o

judgment         a s a matter         of      law.         See,      Rule     56(c),       M.R.Civ.P.
The D i s t r i c t C o u r t ' s f i n d i n g s o f f a c t w i l l b e u p h e l d u n l e s s

c l e a r l y erroneous.             R u l e 52 ( a ) , M.R.Civ.P.

           S i x i s s u e s a r e r a i s e d on a p p e a l .

           1.          Did    weather        conditions          i n Missoula             prevent         the

p l a n e from l a n d i n g ?         Northwest needs t h r e e m i l e s of v i s i b i -

l i t y and      a     1300-foot         ceiling        to     land     i n Missoula.                 Common

sense     dictates            that      only      the    weather         conditions              existing

prior t o take-off,                 9:50     a.m.,      are pertinent.               In t h i s case,

plaintiff's             own    exhibit        from      the     National         Weather              Service

s h o w s t h e r e was o n l y o n e a n d o n e - h a l f           miles o f v i s i b i l i t y a t

9: 52 a.m.             Therefore,           weather          clearly     prevented              Northwest

from l a n d i n g i n M i s s o u l a .

           2.         Did N o r t h w e s t h a v e      a    legal      right       to    cancel         the

Billings-Missoula                   flight       in     light      of      the     poor          weather?

Civil      Aeronautics               Board        regulations             govern          rights         and

l i a b i l i t i e s between          a i r l i n e s and p a s s e n g e r s and c o v e r             this

issue.          Tishman & L i p p ,           Inc.      v.     Delta A i r       Lines          (2nd C i r .

1 9 6 9 ) , 4 1 3 F.2d         1401.        Those r e g u l a t i o n s a u t h o r i z e a i r l i n e s

t o cancel           f l i g h t s when n e c e s s a r y .       C i v i l A e r o n a u t i c s Board

Tariff,         240     and    2616.        Mack v .         Eastern A i r       Lines          (D.    Ivlass.

1 9 4 9 ) , 87 F.Supp.           113; see a l s o , J o n e s v .             Northwest A i r l i n e s

(Wash.      1945),            157    P.2d      728.          Therefore,          Northwest             acted

within       its        legal       authority           in     canceling           the      Billings-

Missoula f l i g h t .

           3.         Did N o r t h w e s t h a v e a r i g h t t o r e f u s e p l a i n t i f f            a

s e a t a f t e r a b o a r d i n g p a s s had been i s s u e d ?                A s noted above,

the     flight         was     properly        canceled          due     to     adverse          weather.

Civil      Aeronautics              Board       Tariff         248(H)         does        not         require

advance n o t i c e t o be g i v e n o f f l i g h t c a n c e l l a t i o n s .                      There-

fore,     Northwest            properly         excluded         plaintiff,          even         after      a
b o a r d i n g p a s s had been i s s u e d .

             Issues       four,        five     and     six     are      irrelevant        if     no

l i a b i l i t y is e s t a b l i s h e d .

             I n r e v i e w i n g t h e f i r s t t h r e e i s s u e s , we b e l i e v e t h e r e

are     no      material         issues        of     fact     and     that        Northwest      is

e n t i t l e d t o judgment a s a m a t t e r o f law.                 T h e r e f o r e , summary

judgment         was    properly         yranted.         Consequently,             w e need n o t

address the l a s t three issues.

             The D i s t r i c t C o u r t j u d g m e n t i s a f f i r m e d .




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