# Petition for Writ of Certiorari — Herring v. United States (No. 05-821) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0648%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 ## Text 7 the federal courts to review such claims of privilege in camera to evaluate their validity and proper scope, and therefore affirmed. Jd. at 996-98. See also C8 (4% 19). The United States successfully petitioned for certiorari and urged the Supreme Court to reverse the widows’ judgments. C8 ("11 20-21). In its petition and its briefs, the government advanced an even more expansive claim of privilege, insisting that the executive branch might lawfully withhold any document from judicial scrutiny if it deemed secrecy in the public interest. United States v. Reynolds, 345 US. 1, 6 (1953). A majority of this Court, however, declined to rule so broadly, choosing instead to rely on Secretary Finletter’s and Major General Harmon’s affidavits: Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national! interests. On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reason- able danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission. 345 U.S. at 10 (emphasis added). Indeed, the Secretary had attested that the aircraft and crew “were engaged in a highly secret mission” and the documents were “concerned with confidential missions and equipment of the Air Force.” Similarly, the Judge Advocate General had sworn that furnishing the reports and witness statements would compromise “national security ... and the development of 8 highly technical and secret military equipment.” Jd. at 4-5, 10. In the majority’s view, these representations that the documents contained “military secrets” were sufficient to forestall disclosure even to the district judge, absent a more compelling necessity. Jd. at 10-11. The balance between the government’s need for secrecy and the widows’ need for the documents weighed in favor of the government: There is nothing to suggest that the electronic equipment, in this case, had any causal connection with the accident. Therefore, it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets. Respondents were given a reason- able opportunity to do just that, when petitioner formally offered to make the surviving crew members available for examination. We think that offer should have been accepted. Id. at 11. The Court, accordingly, reversed.° After remand, without the benefit of the accident report and witness statements, the widows settled their cases with the government for $170,000.* The cases were discontinued on August 5, 1953. C9 (11 22). In early 2000, Palya’s daughter, Judith, learned through internet research that previously-classified Air Force documents regarding military aircraft accidents had been declassified and were publicly available. Curious about the “secret mission” that had occupied her father on the day of his death, she ordered a copy of materials relating to her 3. Chief Justice Vinson wrote for the majority. Justices Black, Frankfurter and Jackson dissented “substantially for the reasons set forth in the opinion of Judge Maris [of the Court of Appeals] below.” 345 U.S. at 12. 4. The widows noticed depositions of several survivors of the crash and it appears that those depositions were taken prior to settlement. Petitioners do not have copies of any transcripts of such depositions. It is possible they were never ordered transcribed. 9 father’s accident. She soon saw what the government had fought so hard to keep her mother and a federal district judge from seeing. C9-10, C104-162 (191 23-25 & Ex. J).° The accident report and witness statements contained none of the military or national security secrets the government had claimed. The materials nowhere described any part of the “secret mission” in which Reynolds, Palya and Brauner were involved. They did not refer to any “newly developing electronic devices” or “secret electronic equipment” aboard the plane or elsewhere. They made no mention of anything that was or should have been “confidential.” Indeed, they recorded nothing beyond the events surrounding the crash and the likely reasons for its occurrence, none of which had anything to do with the mission of the flight or the confidential equipment on board. C10, C11-12 (11 26, 32-34).° Thus, petitioners’ complaint alleges: ® The affidavits offered by Secretary Finletter and Major General Harmon in support of the Air Force’s claim of privilege were intentionally false and 5. The documents Judith Palya Loether obtained included all of the materials identified in the district court’s September 21, 1950 order. C9- 10 ({1 25). Copies of these documents were attached to the Complaint in their original form as Exhibit I and in printed form as Exhibit J. Because this Court’s rules forbid the attachment of originals, only Exiivit J, the printed form, is included in Appendix C. 6. The accident report identifies the main cause of the accident as “he Air Force’s failure to comply with certain technical orders which mandated “changes in the exhaust manifold assemblies for the purposes of eliminating a definite fire hazard” C11, C110 (1 33 & Ex. J). As a result, “[t]he aircraft is not considered to have been safe for flight,” and when the No. 1 engine on the plane caught fire, the fire could not be contained and the plane plummeted to the ground. C116 (Ex. J). The declassified documents also reveal that one of the government’s key interrogatory responses was false. C169-170, C175 (Ex. K) (Interrogatory 3l(a): “Have any modifications been prescribed by defendant for the engine in its B-29 type aircraft to prevent overheating of engines and/or reduce the fire hazard in the engine?” Answer: “No.”). 10 misleading. They were proffered to cover up and suppress conclusive evidence that the Air Force’s negligence had caused the deaths of Reynolds, Palya and Brauner, and with a view toward fabricating a “test case” for a favorable judicial ruling on claims of an executive or “state secrets” privilege -— a case built on a fraudulent premise. C11-13 (19 32-35). o The affidavits were made with knowledge of their falsity or in reckless disregard for whether the statements they contained were true or false. Indeed, the affidavits’ falsity is apparent upon reading the accident report and witness statements themselves. They provide no confidential informa- tion of any kind concerning the plane’s secret mission or equipment — the “secret” topics the Air Force claimed and the courts at the time understood them to address. C13 (79 36-38). And, o The Air Force intended that the federal courts rely upon the affiants’ testimony to deny the widows evidence to which they were entitled and, later, to reverse the judgments rendered in the widows’ favor. And, ultimately this Court did rely on the Air Force’s falsehoods. The government thereby prac- ticed a fraud on this Court and worked a grave miscarriage of justice. C13-15 (19 39-45). C. The Decisions Below. In dismissing petitioners’ complaint, the district court agreed that Secretary Finletter and Major General Harmon were acting as officers of the court in asserting a “state secrets” privilege. B12. The court went on to hold, however, that courts generally should “defer on some level to governmental claims of privilege” for military secrets and it was therefore obliged to give the Finletter and Harmon affidavits “a broader reading” than the federal judges and justices who considered them fifty years before. B9-11. 11 From [the affidavits], Plaintiffs deduce that only the mission and electronic equipment were confidential, but a broader reading of the affidavits suggests that beyond the mission itself, disclosure of technical details of the B-29 bomber, its operation, or performance would also compromise national security. B10-11. The district court then pointed to references in the report to technical aspects of the plane’s operation and performance that it believed “in the hands of the wrong party could surely compromise national security,” B11-12, and — based on its reading of the affidavits - ruled as a matter of law that appellants could not show that “the Air Force sought to defraud the Courts.” B12. To buttress this ruling, the district court also undertook to identify a purported “public record” on the development of a Soviet copycat bomber. Based on its own independent research (which petitioners had no opportunity to address or contest), the district court posited that the Soviet Union’s Tu-4 “copied the B-29 almost exactly, including the fire- prone engines.” B16. On this mistaken premise,’ the district judge speculated that “it seems that the accident investiga- tion report may have reasonably contained sufficient intelligence, if not about the secret equipment or mission, then about ongoing developments in Air Force technical engineering, to warrant an assertion of the military secrets privilege.” B18. Thus, the district court held that petitioners 7. The Tu-4 did not copy the B-29’s engine, but instead used the Shestov Ash-73TK, a Soviet variant of a different U.S. engine that the Soviets had licensed years before. Von Hardesty, Made in the U.S.S.R., Air & Space/Smithsonian, Feb./Mar. 2001 (available at http://www.airandspacemagazine.com/ASM/Mag/Index/2001/FM/TU- 4.html). The existence of the Tu-4 was, moreover, public knowledge a year before the crash. It was disclosed in a 1947 hearing chaired by Secretary Finletter. See “Russian Air Gain Noted by Spaatz,” New York Times, Nov. 18, 1947, at 33. 12 could not challenge the government’s privilege claim as fraudulent. The Court of Appeals took a different approach. Its keynote was that “(t]he presumption against the reopening of a case ... must be not just a high hurdle to climb but a steep cliff-face to scale.” A3. This “steep cliff-face” meant that, where sworn affidavits were involved, it was not enough to show that officers of the court had engaged in fraud.® Rather, petitioners had to allege and prove that these officers had committed perjury. Therefore, petitioners needed to plead and prove that Finletter’s and Harmon’s affidavits were “not subject to a literal, truthful interpreta- tion” as “a necessary element” of their claim. A1l2. Petitioners, however, could not make out this “neces- sary element.” In the Court of Appeals’ view, if read literally — and without regard for the circumstances in which they were made or how the courts had understood them at the time — the Air Force’s affidavits might be construed to claim “state secrets” protection not just for the mission and secret equipment aboard the ill-fated plane, but generally for anything to do with the “workings” of the B-29. A13-14. Because this was “an obviously reasonable truthful interpretation of the statements made by the Air Force,” petitioners were “unable to make out a claim for the perjury which ... forms the basis for their fraud upon the court claim,” and their complaint was properly dismissed. Al4.° Reasons for Granting the Writ The Court of Appeals has held that government officials may intentionally defraud the federal courts by false and misleading affidavits and the government may escape answering for their misconduct, so long as the affiants are 8. The Court of Appeals agreed that Finletter and Harmon were acting as “officers of the court” in Reynolds. A11. 9. In light of this conclusion, the Court of Appeals did not reach the district court’s additional “independent research"-based ground for dismissal. 13 careful to avoid committing the crime of perjury. This unprecedented holding conflicts with prior decisions of this Court and other circuit courts governing independent actions for fraud upon the court and establishes a standard that promises only to bring shame on the federal judiciary. A fraud directed squarely at the integrity of this Court’s decision-making, as happened in the Reynolds case, should be confronted, not excused. In the exercise of its supervisory powers, this Court should issue a writ of certiorari to review the Court of Appeals’ ruling. I. The Court of Appeals’ Decision Conflicts with Rule 60(b) and Prior Decisions of this Court and Other Courts of Appeals. The Court of Appeals’ decision in this case makes pleading and proof of criminal perjury the sine qua non of an independent action under Rule 60(b) of the Federal Rules of Civil Procedure, at least where allegedly false and misleading statements appear in sworn affidavits or declarations: To allege that false statements were made in these documents is to allege perjury .... In such a case, proof of perjury, though not sufficient to prove fraud upon the court, becomes a necessary element which must be met before going on to meet the additional rigors of proving fraud upon the court. Al2. On this basis, the Court of Appeals flipped the rules that generally govern motions to dismiss; read the Finletter and Harmon affidavits entirely outside the context in which they were presented and previously understood; and held that because those affidavits were arguably susceptible to a “literal, truthful interpretation” petitioners could not prove perjury and hence could not make out a claim for fraud upon the court. A12-14. The Court of Appeals cites no authority for its holding that “proof of perjury” is a necessary element of a fraud upon the court in this or any other context. None 14 exists. The court’s decision conflicts with the plain language of Rule 60(b) and with Hazel-Atlas Glass Co. v. Hartford- Empire Co., 322 U.S. 238 (1944), and United States v. Beggerly, 524 U.S. 38 (1998), this Court’s leading recent discussions of fraud upon the court. It is also at odds with the standards for Rule 60(b) independent actions estab- lished by other federal appeals courts. Rule 60(b), as amended in 1946, abolished almost all common law avenues for post-judgment relief in the district courts. Beggerly, 524 U.S. at 45. The amended rule, however, specifically preserved “the power of the court to entertain an independent action ... to set aside a judgment for fraud upon the court.” Such an independent action sounds in equity and, as Beggerly notes, appears “more broadly available than the more narrow writs that the 1946 Amendment abolished.” Id. The rule allows an action for fraud upon the court, not perjury upon the court. Perjury and fraud are different. Perjury is a crime. It requires proof of a willfully false statement made under oath or expressly under penalty of perjury, on a material matter which the defendant does not believe to be true. 18 U.S.C. § 1621. These criminal standards are exacting. Only an affirmative false statement will sustain a charge of perjury; a literally true statement is not perjury, even if it is intentionally evasive, misleading and deceitful. Bronston v. United States, 409 U.S. 352, 360- 62 (1973). Further, a conviction lies only if the prosecution proves that the defendant knew his testimony was false at the time he gave it. United States v. Sweig, 441 F.2d 114, 117 (2d Cir.), cert. denied, 403 U.S. 932 (1971); La Placa uv. United States, 354 F.2d 56, 59 (1st Cir. 1965). Fraud, by contrast, is the intentional misstatement or omission of a material fact made with knowledge of its falsity or in reckless disregard for whether it is true or false. E.g., SEC v. Infinity Group Co., 212 F.3d 180, 191-92 (3d Cir. 2000), cert. denied, 532 U.S. 905 (2001) (actionable securities fraud consists of knowing or reckless misstatements or 15 omissions); McLean v. Alexander, 599 F.2d 1190, 1197 & n. 12 (3d Cir. 1979) (same, collecting cases). Fraud is both a criminal and civil law concept. Unlike perjury, fraud does not depend upon an affirmative false statement; it may rest upon an omission to state a material fact that the actor is under a duty to disclose or that is necessary to make the facts stated not misleading. Bronston, 409 U.S. at 358 n.4 (criminal fraud, unlike perjury, “goes ‘rather far in punish- ing intentional creation of false impressions by a selection of literally true representations, because the actor himself generally selects and arranges the representations’”) (citation omitted); Kline v. First Western Govu’t Sec., 24 F.3d 480, 491 (3d Cir. 1994); SEC v. Coffey, 493 F.2d 1304, 1314 (6th Cir. 1974). Fraud also does not require that the actor know his statements and omissions to be false; the actor may answer for fraud if he acts in reckless disregard for whether his statements and omissions are true or not. Infinity Group Co., 212 F.3d at 191-92; First Commodity Corp. v. Commodity Futures Trading Comm., 676 F.2d 1, 6-7 (1st Cir. 1982). Fraud thus is not perjury, and in preserving an “independent action ... for fraud upon the court” Rule 60(b) is not preserving an action confined by the elements of the crime of perjury. It is preserving a coader remedy for deceit directed at the court itself. This Court’s leading decision on “fraud upon the court,” Hazel-Atlas, makes this clear.*° In 1941, h wel-Atlas commenced an action to set aside a judgment entered against it in 1932 on a claim of patent infringement. It 10. Hazel-Atlas is a prime example of a situation for which the independent action was preserved under amended Rule 60(b). 28 U.S.C. App., Fed R. Civ. P. 60, Advisory Committee’s Notes on 1946 Amendment, at p. 795 (“the rule expressly does not limit the power of the court, when fraud has been perpetrated upon it, to give relief under the saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).”). See also Beggerly, 524 U.S. at 46. 16 alleged that Hartford-Empire had procured the judgment by a fraud upon the court. Its evidence showed that in 1926 an attorney for Hartford had written an article extolling Hartford’s glass-making machine as a “remarkable ad- vance” and arranged to have that article published in a trade journal under the name of William Clarke, a leader in the field. 322 U.S. at 240. Hartford and its attorney submitted the article to the Patent Office in support of Hartford’s patent application and later cited it to the Third Circuit in a brief, directing the OF O © THE COURT: Weii, it doesn’t seem to me necessary in view of your A B and C. Put them in if you want to, but it seems that that is all covered by your A B and C. JOSEPE. ABEL, having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. BIDDLE: Q Mr. Abel, what is your position? A lam the wage and salary administrator for the RCA Victor Division of the Camden plant. Q_ And you have charge of the personnel records? A Well, there is another section in the department, in the personne! department, which has the supervision of the records, but I do control the wages and the salaries, — Q I see. A - administer and control the wages and salaries. @ Now, starting first with Albert Palya, was he employed by RCA? C69 Yes, he was. Did you know him? No, I did not. Have you got his record there? Yes, I have. Or O& & O K& He was employed in what capacity? A He was employed as a working group leader of design research and development engineers. Q_ Isee. Now, what do your employment records show as to Mr. Palya and his rating as an employee, as an engineer? A The employee record contains a service review which was made on September 27th of 1948. The over-all evaluation of the employee’s performance was superior beyond the satisfactory fulfilment of job requirements. Q Now, Mr. Abel, so we may understand, you say you have an over-all rating. How do you make that rating up? Just what does it mean? A We have a plan that covers all salaried employees in a very formal fashion. We have a review form which is broken down into factors and then there are some comments in addition to that that are made in reference to the employee’s performance over a period of about a year. Q How is that review form made up? Who makes it up? A The director supervisor does the rating and then it is further reviewed by that supervisor’s superior and then becomes a part of the personnel record. Q Now, do you know Dr. Ewing who was just on the stand? C70 A_ Yes, I do. Q What was his function in there? Was he the supervisor or what was he? A He was the reviewer in this case. He was the reviewer. Q Who made up these ratings? A That is right. The man that made up this rating ir this case was S. T. Eaton or T. T. Eaton. And then it was further reviewed by - you see, in our system - Q I didn’t understand what you said. The man who made up the rate was who? A Eaton, E-a-t-o-n. Q@ Eaton? A That’s right. Q I see. And then what was Dr. Ewing’s function in connection with this rating that you have? A He was Mr. Eaton’s supervisor. I see, and he reviewed it? That’s right. The very record that you have before you? That is correct. oO - O& - & Now then, what did it show as to Mr. Palya’s rating? A What I gave you .s a summary or an over-all evaluation which was superior. Now, it is broken down into factors. The performance of the unit supervised was extraordinary. The effectiveness in dealing with people was extraordinary, that which the present job can fully utilize. The initiative was extraordinary as was the job attitude. C71 In the very good review - that is in the very good evaluation of his performance, were the foilowing factors: Cost control, organizing ability, ability to develop subordinates, personal efficiency, job knowledge, judgment and dependability. Q@ I see. Now then, with that record what were Mr. Palya’s prospects? It has been agreed what his present rate of pay was at the time of his death, how about his future? Have you any standard rates in effect at RCA? A Yes, we do. Q Tell us what they are as applied to Mr. Palya. MR. CURTIN: That is objected to. THE COURT: I will hear it subject to the objection. BY MR. BIDDLE: Q Go ahead. A The category or the classification, occupational classification, for Mr. Palya as working group leader has a maximum rate of $10,800 annually. We actually make our payments on the semi-monthly basis. Projecting within that scale on an average which is current and in accord with our normal operations, it can be said that he would have received about 5 per cent on an average a year, or 10 per cent every two years, which would bring him at about the age fifty-one to the maximum rate of that classification. Now, that is if he remained within that classification, but obviously there were other opportunities. Engineering services today are at a premium and he may have been able to get into a higher category. Q Well now, the category that you have put him in and which you say would have brought him to a maximum at age fifty-one of how much? C72 A $10,800; $450 S.M. Q That is, do I understand, simply based upon his continuing to work over that period of years in the position which he held at the time of his death? A That is correct. Q But increasing, of course, with the years in experience? A That is correct. Q It doesn’t take into consideration whether he might have branched out into some other field or became an executive or anything of that kind? A No, it does not, but it is not unusual. Q@ Now, have you got a tabulation showing the increases in rates of pay for an engineer of Mr. Palya’s capacity in the employ of RCA? A Well, I had Mr. Palya’s record here from his - Q But you said a moment ago that he would have gotten an increase of 5 per cent a year, something of that kind. A That is right. That is based on the experience. It is part of my job to review all increases requested by supervisors in the plant. We have something like six thousand salaried employees. They have to be fanned - those requests have to be fanned across our wage schedules. We have a plan for review in this particular bracket and at about his salary the reviews would take place about every fourteen months and the average, as we experience it now, is about every two years, 10 per cent every two years. In fact, in his particular case he received an adjustment that was 15 per cent in May of 1948, which is very unusual. We normally grant increases to 10 per cent. The average runs around 8.9 per cent, but this does show that there was outstanding performance. C73 Q What is the reason that he got 15 per cent? A Based on outstanding performance. Q Now, you have a tabulation, have you, of the increases to which you have testified? A Yes, I have the original pay-roll record, but I have excerpted — I have excerpted here in my own hand the amount of increases since the date of his employ. This is a copy of the original personnel pay-roll folder. Q@ You made this up yourself? A Yes, I did. MR. BIDDLE: I would like to have that marked —- THE COURT: Very well. MR. BIDDLE: - and I offer that in evidence. MR. CURTIN: Objected to. THE COURT: I will note the objection and take it subject to the objection. C74 (Carbon copy of tabulation entitled “Albert Palya” was marked Exhibit P-l. A copy thereof follows: “ALBERT PALYA Probable Annual Age Rate/Semi-Monthly Earnings x 24 Year 41 $280 $ 6,720 1948 42 294 7,056 1949 43 308 7,392 1950 44 325 7,800 1951 45 340 8,160 1952 46 360 8,640 1953 47 375 9,000 1954 48 390 9,360 1955 49 410 9,840 1956 50 430 10,320 1957 51 450 10,800 1958 52 450 10,800 1959 53 450 10,800 1960 54 450 10,800 1961 55 450 10,800 1962 56 450 10,800 1963 57 450 10,800 1964 58 450 10,800 1965 59 450 10,800 1966 60 450 10,800 1967 61 450 10,800 1968 62 450 10,800 1969 63 450 10,800 1970 64 450 10,800 1971 65 450 10,800 1972”) C75 MR. BIDDLE: Cross-examine. CROSS-EXAMINATION BY MR. CURTIN: Q Who is Mr. Eaton? A Mr. Eaton was a supervisor, as indicated on this particular form. Q What kind of a supervisor? A_ I don’t know definitely. Based on experience I would say he would have been a group supervisor. Q He was an engineer also? Yes, he was. An engineer also? Yes. And this report that you have read from is his - His evaluation. Or O & O P His evaluation of the work records of Mr. Palya? A That is right. MR. CURTIN: I ask, with Your Honor’s permission, that the evidence testified by this witness be stricken from the record. THE COURT: 1 will deny it. I will consider your motion at the close of the case. MR. CURTIN: That is all. THE COURT: All right. DIRECT EXAMINATION (Continued) BY MR. BIDDLE: Q Mr. Abel, these records which you have produced are, I take it, the regular employment records of the company? C76 A Yes, they are. We have a folder like this for every employee. QI may have asked you this question before but I am not sure: The tabulation which you have made up and a copy of which has been offered in evidence shows the regular rates of increases in effect in the company for a man of Mr. Palya’s capacity? A That is correct. @ Now will you turn to your records on Mr. Robert Reynolds, please? Mr. Reynolds was also employed at RCA? A Yes, he was. Q And do you have his record there? A Ido. Q What does that show? MR. CURTIN: Just for the purpose of the record I want my objection noted again. THE COURT: Same ruling. A The service review made in April of 1948 and rated by Mr. Palya and reviewed by his superior, Mr. Schraeder, indicates an over-all evaluation of the employee’s performance as good, performance fully competent. In the factors of quantity of work, quality, dependability and job attitude, he was rated as very good and this meant that the employee’s performance with respect to a factor is beyond the requirements for satisfactory performance of the job. He was rated as satisfactory on the factors of adaptability, job knowledge, judgment and the factor of satisfactory is the employee’s performance with respect to a factor meets the full job requirement as the job is defined at C77 the time of rating. A satisfactory rating means good performance. I don’t recall, did I indicate initiative, organizing ability and effectiveness in dealing with people? They are in the very good ~ rated as very good. Q All right. Now, will you also tell us, Mr. Abel, what Mr. Reynolds future prospects were, based upon his record? And when I say “future prospects” I mean his regular prospects under the established rates in effect of the RCA. A Right. Q_ Ifhe had carried on with them in the position which he held at the time of his death with natural improvement for years of experience. A He was classified occupationally as a class C engineer. We have several other classifications: that of B, A and AA with corresponding rates of pay. Now, he would have progressed, in my opinion he would have progressed, in accord with some studies that I have made recently on the basis of an average rate for certain ages, he would have progressed from his rate to a maximum of $6484. BY THE COURT: Q At what age? A At the age of sixty-five. Now, that would have been on the basis of the actual rates as they obtained in RCA for engineers. It so happens that I have made a table which indicates that within five year periods the average rate for engineers of that age is equal to so much and I predicated it on that basis. In my opinion this is a very conservative estimate of what would have happened. BY MR. BIDDLE: Q What he would have received? A That is right. C78 MR. BIDDLE: I would like to offer that tabulation in evidence also. (Tabulation entitled “Reynolds” was marked Exhibit P-2. A copy thereof follows: Exhibit P-2 “REYNOLDS Probable Annual Probable Rate Earnings Rate Earnings Age Weekly (x 52) Year Age Weekly (x 52) Year 24 71.80 3733.60 1948 46 12665 6585.80 1970 25 71.80 3733.60 1949 47 126.65 6585.80 1971 26 86 36 4490.72 1950 48 126.65 6585 80 1972 27 86.36 4490.72 1951 49 126.65 6585.80 1973 28 86.36 4490.72 1952 50 126.65 6585.80 1974 29 86.36 4496.72 1953 51 124.70 6484.40 1975 30 86.36 4490.72 1954 52 124.70 6484.40 1976 31 98.31 6112.12 1955 53 124.70 6484.40 1977 32 98.31 5112.12 1956 54 124.70 6484.40 1978 33 98.51 5112.12 1957 55 124.70 6484.40 1979 34 98.31 5112.12 1958 56 124.70 6484.40 1980 35 98.31 5112.12 1959 §7 124.70 6484.40 1981 36 114.24 5940.48 1960 58 124.70 6484.40 1982 37 114.24 5940.48 1961 59 124.70 6484.40 1983 38 114.24 5940.48 1962 60 124.70 6484 40 1984 39 114.24 5940.48 1963 61 124.70 6484 40 1985 40 114.24 5940.48 1964 1986 41 118.66 6170.32 1965 62 124.70 6484.40 1987 42 118.66 6170.32 1966 63 124.70 6484.40 1988 43 118.66 6170.32 1967 64 124.70 5484.40 1989 44 118.66 6170.32 1968 65 124.70 6484.40 45 118.66 6170.32 1969”) C79 MR. BIDDLE: Cross-examine. CROSS-EXAMINATION BY MR. CURTIN: Q The evaluation of this record of Mr. Reynolds was made by his superior, I believe you said, Dr. Ewing, was it not? No, by Mr. Palya. In other words, Mr. Palya reviewed Mr. Reynolds? That is right. Is that correct? MR. CURTIN: Now, for the record I also - A (Continuing) No, pardon me, sir, may I correct that? Mr. Palya did the rating but it was further reviewed by Mr. Schraeder. BY MR. CURTIN: Q. And in the first case the evaluation was made by Eaton and reviewed by Dr. Ewing, who testified, is that correct? O&O > & P A That was it in the other case. ~ Mr. Palya, and a reviewal by Mr. Schraeder? Mr. Schraeder. MR. CURTIN: Now, for the record I move that the testimony of the witness be stricken from the record. Q The first case? A _ Right. Q In the second case the evaluation was made by - A Mr. Palya. Q A C80 REDIRECT EXAMINATION BY MR. BIDDLE: Q The Mr. Palya you refer to, of course, is the Mr. Palya who was killed in the same accident with Reynolds? A Yes, it is A. Palya and it looks like the same signature. THE COURT: The same ruling. You can raise this question on a motion to strike out. MR. CURTIN: I just want the record to show it anyway. THE COURT: Oh, yes, I know. MR. CURTIN: Because Your Honor knows enough about this case. THE COURT: Yes, sure, I know a lot about it. MR. BIDDLE: Is that all? MR. CURTIN: That is all. MR. BIDDLE: Mr. Curtin, will you agree that the rating records that Dr. Ewing referred to are the ones that have been produced by Mr. Abel, or do you want me to put him back on the stand? MR. CURTIN: I don’t - MR. BIDDLE: In his testimony Dr. Ewing referred to certain ratings that he looked at from the records of RCA. MR. CURTIN: I am not doubting that these are the records of RCA. THE COURT: No, but they are the ones that Dr. Ewing referred to. MR. CURTIN: I don’t know what all he saw, if Your Honor please. C81 THE COURT: Well, Dr. Ewing, will you stand up a minute? MR. BIDDLE: Let us get him back. THE COURT: Don’t put him back. You heard Mr. Abel testify to certain records? MR. EWING: Yes, sir. THE COURT: Are those the records which you referred to in your testimony as your having looked at before you testified? MR. EWING: They are. THE COURT: They are. All right. MR. CURTIN: Doesn’t Your Honor think he ought to ask him if they are the only records he saw? THE COURT: Are they the only records you saw? MR. EWING: They are the only company records I saw, yes, sir. THE COURT: All right. MR. BIDDLE: Now, Mrs. Palya, would you take the stand? ELIZABETH A. PALYA, having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. BIDDLE: Q Mrs. Palya, you are the widow cf Albert Palya? A lam. Q@ You are the plaintiff in this case to recover damages? A Yes, sir. Q Where do you live? A C82 I live at 16 Station Avenue, New Haddon Heights, New Jersey. Q And you teach, I think, at the Haddonfield High Schoo! now? Yes, that is right. Have you got any children? I have three children. How old are they? The youngest is two and I have a boy eight and one The one that is two is a boy or girl? A girl. And how long were you and Mr. Palya married before his death? A Q We were married a little over eleven years. It is in evidence already here that he worked for RCA. Before that he worked for —- > O P Q Minneapolis Honeywell, Minneapolis. And before that he was in business for himself? Yes, that is right. Now, what was his working attendance? In other words, was he able to work regularly or — A Yes, Mr. Palya was in very good health and he missed very few days at work. He seldom missed. Q A Yes. MR. BIDDLE: Cross-examine. MR. CURTIN: I have no questions. BY THE COURT: In other words, his employment was steady? C83 Q What is your age, Mrs. Palya? A lam thirty-eight. THE COURT: All right. RALPH H. MCCLARREN, having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. BIDDLE: Q Mr. McClarren, you are employed at the Franklin Institute, are you not? A Yes, sir. Q In what capacity? A Iam assistant to the executive vice-president. Q@ Now, did you have at the Franklin Institute William Brauner who was killed in this accident October 1948? A Atthe time Mr. Brauner was killed, I was director of the Electronics and Instruments Division of the laboratories for research and development. Mr. Brauner worked directly under my supervision. Q He was an engineer? A He was a research engineer, yes, sir. Q What kind of an engineer, electrical, mechanical or what? A He was acombination of electrical and physicist. He had training in both. @ How long had he been there? A He had been employed a little over two years at the time of his death. Q What kind of an engineer was he with respect to his ability? C84 A Well, Mr. Brauner was an above average engineer. During the period of time with us he accomplished work of an unusual nature having the ability to thoroughly analyze a problem from the fundamental physics and mathematics, see that problem through its experimental stage and to actually devise, design and develop apparatus which conformed to his analysis of the problem to do a successful job. Q Anything else outstanding about him? A Well, he also showed tendencies toward invention, new ideas. In fact, prior to his employment with the Institute he worked with the General Electric Company and I know at the time he had made several inventions for the General Electric Company which he had on application filed with them. Also with one of our projects we filed letters of patent for a particular machine that he developed during one of his projects with the Institute. Q Who was that for, Simonds Abrasive Company? A Simonds Abrasive Company, yes, sir. Q Was he regular in his work? A Very regular, seldom absent. In fact, he worked extra time most of the time. BY THE COURT: Q@ Did he give any idea as to what physical condition he was in? Was he a man apparently in good health? A Very good health, yes, sir. BY MR. BIDDLE: Q@ Based upon your knowledge of Brauner that you have testified to and his employment, what can you tell us with regard to his prospects with the Franklin Institute as an engineer? C85 A Well, during Mr. Brauner’s employment with us I made two recommendations for a salary adjustment. Both of those recommendations were granted by the Institute and I brought with me the official personnel department records, the employee record card, and that first recommendation was for a raise in salary effective January 22, 1947. He was granted a raise from $4400 per annum to $4750 per annum. Again I made a recommendation for a merit increase to be effective January Ist, 1948. This was granted and that raised his salary to $5,050 per annum. And, just about the time of the accident, we were reviewing our personnel again and I know that I would have made a _ favorable recommendation for him effective the first of January 1949. BY THE COURT: Q@ How many engineers are there employed at the Franklin Institute? A In our laboratories for research and development there are about 110 engineers. BY ivr. BIDDLE: Q Now, based upon your standard rates at the Franklin Institute, what was Brauner’s future? A Well, Brauner on the whole and on the average would probably have received recommendations for increases, | would say with certainty he would have received favorable recommendations for increases and those would probably average about $400 a year. I just made up a table here based on what the increases since have been for engineers doing comparable work and analyzing Brauner’s case and what might be expected for his future. MR. CURTIN: Just a moment until I see that memorandum. Have you an extra copy of that? MR. BIDDLE: This is the only one I have complete. C86 THE WITNESS: And I have noted that in 1949 it is quite likely his salary would have been $5,450 and that increased about four hundred per year up until a maximum of $9,000 in 1960 and that is the top salary for the senior research engineer category at the present time. Brauner was a research engineer, the next higher promotion would have been to a senior research engineer. He, of course, should he show executive ability and so forth, would have the opportunity to go to a section head or associate director of the laboratories. BY MR. BIDDLE: Q But your tabulation that you have made up from which you just testified is based upon - it does not take into consideration the possibility of his becoming a section head? A_ No, sir. This takes into account the possibility that he would be promoted to a senior research engineer and I am sure he had all the qualifications for such. Q_ And it is based again on your standard rate in effect at the Franklin Institute? A Yes, sir. Q For everybody in that category, that kind of an engineer? A That is right. Q Is that right? A Yes, sir. Q It doesn’t take into consideration what he might have made out of the invention you were talking about, anything like that? A Weill, any invention that he would have made as a result of his work at the Institute would be assigned to the Institute or to the sponsors. Q_ I see. C87 A But any invention he would make on his own, not pertaining to the work at the Institute, would not necessarily be assigned. @ Have you got the typewritten ribbon copy of that? A (The witness produced the original copy.) MR. BIDDLE: I would like to offer this in evidence as Exhibit P-3. (Tabulation entitled “William Brauner — Died October 6, 1948 - then age 34, American Experience Table - Life Expectancy 32.50 Years” was marked Exhibit P-3. A copy thereof follows: C88 “WILLIAM BRAUNER Died October 6, 1948 — then age 34 American Experience Table — Life Expectancy 32.50 Years Age 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 No. of years from Probable date of death Year Earnings 1 1949 5450 2 1950 6000 3 1951 6400 4 1952 6800 5 1953 7200 6 1954 7600 7 1955 8000 8 1956 8300 9 1957 8500 10 1958 8700 ll 1959 8900 12 1960 9000 13 1961 14 1962 . 15 1963 : 16 1964 " 17 1965 q 18 1966 : 19 1967 . 20 1968 : 21 1969 22 1970 ' 23 1971 : 24 1972 7 25 1973 . 26 1974 . 27 1975 . 28 1976 : 29 1977 s 30 1978 ; 31 1979 e 32 1980 32.50”) C89 MR. BIDDLE: Cross-examine. CROSS-EXAMINATION BY MR. CURTIN: Q In this particular case you were the one that evaluated the work of the employee yourself? A Yes, sir. MR. CURTIN: I have no further questions. MR. BIDDLE: I think, Your Honor, that is everything. THE COURT: All right. MR. CURTIN: Are you going to rest? THE COURT: Would you state, Mr. Biddle, for the record — I know you don’t think it is material and it may not be, but just so we have it in the record, the ages of the other two widows? (Discussion off the record.) MR. BIDDLE: I will find out exactly and put it in. MR. CURTIN: Put it in as an exhibit. THE COURT: Put it in later, that will be all right. MR. BIDDLE: I think that is all. MR. CURTIN: Are you resting? MR. BIDDLE: Yes. PLAINTIFF RESTS. Counsel for the plaintiffs subsequently supplied the following information: “Mrs. Brauner was born on October 2, 1916 and now resides at 15 Benton Street, Wellesley 81, Massachusetts. “Mrs. Reynolds (now Herring) was born on January 20, 1928 and resides at 416 North Bancroft Street Indianapolis, Indiana.”) C90 DEFENDANT’S EVIDENCE MR. CURTIN: Now, so that the record may be clear, Your Honor has made a ruling on a bar order with respect to the happening of the accident. In view of that Your Honor knows I am therefore not going to put in any testimony respecting the accident. THE COURT: That is the order, I believe. MR. CURTIN: So, in conformity with your pretrial conference — THE COURT: I didn’t say any - well, any testimony on the issue of negligence. MR. CURTIN: That is what I meant. I am going to offer these income tax returns because there seems to be some discrepancy between the amounts and so for whatever value they may have I am going to offer all these various photostatic copies of the three individuals’ income taxes for the years involved, as Government’s Exhibit No. 1. The Government rests. (Certified copy of withholding statement of wages paid and income tax withheld, Form W-2, filed by Robert E. Reynolds, 416 Bancroft Street, Indianapolis, Indiana, for the year 1946, was marked Exhibit D-l. Certified copy of joint income tax return, with attached schedules, filed by Robert E. Reynolds and Patrician J. Reynolds, 416 Bancroft Street, Indianapolis, Indiana, for the year 1947, was marked Exhibit D-1 A. Certified copy of income tax return, with attached schedules, captioned Robert E. & Patrician J. Reynolds, 416 Bancroft St., Indianapolis, Indiana, for the year 1948, was marked Exhibit D-1 B. C91 Certified copy of income tax return, with attached schedules, of Albert Palya, 1406 North Emerson, Indianapolis, Indiana, for the year 1945, was marked Exhibit D-1 C. Certified copy of joint income tax return of Albert Palya and Elizabeth A. Palya, 16 Station Avenue, Haddon Heights, New Jersey, for the year 1947 was marked Exhibit D-1 D. Certified copy of income tax return captioned Albert and Elizabeth Palya, 16 Station Avenue, Haddon Heights, New Jersey, for the year 1948, was marked Exhibit D-1 E. Certified copy of joint income tax return, with attached schedule, of Albert Palya, 16 Station Avenue; Haddon Heights, New Jersey, for the year 1946, was marked Exhibit D-1 F. Certified copy of joint income tax return of William Brauner and Phyllis Ambler Brauner, 36 Yale Avenue, Wakefield, Massachusetts, for the year 1945, was marked Exhibit D-1 G.) (Discussion off the record.) MR. CURTIN: The Government rests. DEFENDANT RESTS THE COURT: Both sides rest, gentlemen? MR. BIDDLE: Yes. THE COURT: Now, what do you want to do, do you want to brief this thing or do you want to just leave it in my hands? Do you want to file any requests, what do you gentlemen want to do? I don’t know that it is necessary, all I am going to do is make one finding. I think there are only three findings to be made; namely, the death, finding of negligence and the amount of the damages in each case. MR. BIDDLE: I would think so. C92 THE COURT: I won’t need any full statement of facts. MR.CURTIN: That is what I was going to say. In view of Your Honor’s bar order I den’t think there will be any need for any special findings. THE COURT: | think three findings will cover the whole thing. Now, if you want anything more - MR. BIDDLE: I would like to do this, sir, I have already handed you a trial memorandum on the law of damages which is applicable to this case; namely, the law of Georgia, where the accident took place. Now I would like to, when we get. the notes of testimony from the stenographer, I would like to file a memorandum with Your Honor giving you our views of what the testimony produced today justifies in the way of an award. THE COURT: All right. MR. BIDDLE: I would like to do that and do it very promptly. MR. CURTIN: I probably might want to do the same thing. It might be of some assistance to Your Honor. THE COURT: All right. MR. CURTIN: That is only on the one point. (Discussion off the record.) EVIDENCE CLOSED Reported by Russell T. Harris, Jr. I certify that the foregoing is a correct transcript from the record of proceedings in the above entitled matter. /s/ Court Reporter C93 INDEX Philadelphia, Pa., November 27, 1950 » f+ oer Be PLAINTIFFS’ EVIDENCE (2) Douglas Hancock Ewing ............ 16 20 23 28 GE MN aac iv itis veces savtoveun 30 37 38 43. 44 Se Fes I oo ke hv cekde ane 46 - Raloh H. MocClarvem.....ccscccccses 47 540 DEFENDANT’S EVIDENCE (56) EXHIBITS Exhibit P-l, Carbon copy of tabulation entitled ST bing wc esas cae eked eee ress Exhibit P-2, Tabulation entitled “Reynolds”....... Exhibit P-3, Tabulation entitled “William Brauner — Died October 6, 1948 - then age 34, American Experience Table — Life Expectancy 32.50 Years”. Exhibit D-1, Certified copy of withholding statement of wages paid and income tax withheld, Form W-2, filed by Robert E. Reynolds, 416 Bancroft Street, Indianapolis, Indiana, for _ Cr Ss a os ear Ps ado Sot eet oobi eaeeres Exhibit D-1 A, Certified copy of joint income tax return, with attached schedules, filed by Robert . E. Reynolds and Patrician J. Reynolds, 416 Bancroft Street, Indianapolis, Indiana, for the SE cas oN Cae ASS TREE ena eubiek ee tas Exhibit D-1 B, Certified copy of income tax return, with attached schedules, captioned Robert E. & Patricia J. Reynolds, 416 Bancroft St., Indianapolis, Indiana, for the year 1948......... 53 C94 INDEX (Continued) Page Exhibit D-1C, Certified copy of income tax return, with attached schedules, of Albert Palya, 1406 North Emerson, Indianapolis, Indiana, for the EE eis od Rate ee SAO OO AKAT DEEL ORT Ces 57 Exhibit D-] D, Certified copy of joint income tax return of Albert Palya and Elizabeth A. Palya, 16 Station Avenue, Haddon Heights, New Jersey, for se coo ye os eee speeches 57 Exhibit D-| E, Cestified copy of income tax return captioned Albert and Elizabeth Palya, 16 Station Avenue, Haddon Heights, New Jersey, for the SE EN aso ee gee ates ee hk Sho ee OK 57 Exhibit D-|] F, Certified copy of joint income tax return, with attached schedule, of Albert Palya, 16 Station Avenue, Haddon Heights, New Jersey, for ee Siok oS dia tute eed De Oke OU Ra a8 57 Exhibit D-I G, Certified copy of joint income tax return of William Brauner and Phyllis Ambler Brauner, 36 Yale Avenue, Wakefield, Massachusetts, for the year 1945 ................ 58 C95 EXHIBIT H C96 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PATRICIA J. REYNOLDS v. : Civil Action No. 10142 UNITED STATES OF AMERICA SUR PLEADINGS AND PROOF Before Kirkpatrick Ch.J. In this case, in which the plaintiff sued under the Federal Tort Claims Act to recover damages for the death of her husband, judgment has been entered for the plaintiff and damages are now to be awarded. Concededly, the law of Georgia, where the fatal accident occurred, is binding upon the Court in respect of the measure of damages, unless it is in conflict with the Federal Tort Claims Act (28 U.S.C., Sec. 2674). The Georgia statute provides that a widow may recover from one negligently causing the death of her husband “the full value of the life of the decedent, as shown by the evidence” which the statute defines as “the ful] value of the life of the decedent without deduction where necessary for other personal expenses of the decedent had he lived.” The Federal Tort Claims Act, after making the United States liable in tort claims to the same extent as a private individual under like circumstances, provides that it shall not be liable for punitive damages. The Act then says “If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only C97 punitive in nature, the United States sha:i be. liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.” The defendant contends that this supercedes the Georgia statute and that, inasmuch as the plaintiff produced no evidence of what it cost the decedent to live and what part of his salary he customarily kept for his personal expenses, the evidence is insufficient to allow the Court to make a finding of the widow’s “pecuniary injuries”, with the result that the Court cannot make an award of damages in any amount. Unless the Georgia statute provides or has been construed to provide for damages “only” punitive in nature, the defendant’s position cannot be sustained. The defendant bases its argument upon a discussion of the origin and general nature of legislation providing a remedy for wrongful death, which appears in several opinions of the Supreme Court of Georgia, particularly Savannah Electric Co. v. Bell, 124 Ga. 663, and Pollard v. Kent, 59 Ga. App. 118. These opinions say that the Georgia death statute is “punitive so far as the defendant is concerned”, but it is clear that what was meant was that, as in all death statutes, beginning with Lord Campbell’s Act, the imposition upon a wrongdoer of civil liability for causing the death of another was to some extent a punitive concept. The Georgia Court makes it quite clear that the damages to be awarded to the plaintiff pursuant to the liability created by the statute, as distinguished from the liability itself, are not punitive damages by any definition. The same opinions declare them to be “compensatory” so far as the plaintiff is concerned. The fact is that while the theory of the Georgia statute, like that of similar legislation elsewhere, may be described as punitive, the damages which it awards to a widow are entirely compensatory. Admittedly, the widow may, under the statute, recover more than the actual amount of money C98 which she has lost by reason of her hushand’s death, but the restitution of expected support from her husband rarely compensates a widow fully for his death. It takes no account of the various intangible items of injury such as emotional distress, loss of consortium, companionship, services, advice and guidance. The measure set up by the Georgia statute for “full” value of the life of the decedent, permitting the widow to recover for all these items as well as her actual out-of- pocket loss, may well be intended as an approximation, arbitrary perhaps, but none the less legitimate. That the Federal Tort Claims Act, (28 U.S.C., Sec. 2674) was not intended to apply to a statute like that of Georgia becomes quite plain when the legislative history of the Section and the Amendment is considered. At the time of its enactment there were two states, Alabama and Massachusetts, in which the damages were, beyond question “only” punitive. Thus, under the Alabama statute the age and life expectancy of the deceased, his physical and mental condition and earning capacity are all immaterial. Louisville & Nashville R.R. Co. v. Tegner, 125 Ala. 593, 598. In that state as in Massachusetts the recovery for a wrongful death is determined solely by reference to the character of the wrongful act and the degree of the wrongdoer’s culpability. The committee report shows that it was this measure of damage: which Congress intended to eliminate in death cases under the Tort Claims Act. There is ample evidence in the case from which the “full value” of the life of this decedent within the meaning of the Georgia statute can be ascertained. In Pollard v. Kent, supra, the Georgia Court said, “ .. . ‘The actual facts and circumstances of each case should guide the jury in estimating for themselves, in the light of their own observation and experience and to the satisfaction of their own consciences, the amount which would fairly and justly compensate the plaintiff for his loss.’ ” I have examined and considered the calculations submitted by the plaintiff in support of her claim. They C99 are relevant, but even though uncontradicted, are not binding upon the Court. In ascertaining damages in a death case the Court’s task is not limited to adding together a number of mathematically ascertained elements. The problem is to find a sum which in the judgment of the Court or jury will fairly and justly compensate the widow for her loss. All the elements made relevant by the controlling law should be taken into consideration but the final award must come from an exercise of judgment by the trier of fact. With these principles in mind, I affirm the first five of the plaintiffs requests for findings of fact. I also-find as follows: The full value of the life of Robert E. Reynolds as of the date of his death is $65,000. I affirm the plaintiff's first two requests for conclusions of law. I affirm the third conclusion of law to the extent that the gross sum the decedent would have earned to the end of his life had he not been killed, reduced to its present cash value, is a proper factor to be considered in arriving at a sum which would fairly and justly compensate the plaintiff for her loss. | C100 IN THE UNITED STATES DISTRICT COUR? FOR THE EASTERN DISTRICT OF PENNSYLVANIA PHYLLIS BRAUNER and ELIZABETH PALYA v. : Civil Action No. 9793 UNITED STATES OF AMERICA $$ re — —— —— SUR PLEADINGS AND PROOF Before Kirkpatrick Ch. J. I affirm the plaintiffs’ requests for findings of fact Nos. 1, 2, 3, 4, 5, 8 and 9. I also find as follows: The full value of the life of William Brauner as of the date of his death is $80,000. The full value of the life of Albert Palya as of the date of his death is $80,000. I affirm the plaintiffs’ first two requests for conclusions of law. I affirm the third conclusion of law to the extent that the gross sum each decedent would have earned to the end of his life had he not been killed, reduced to present cash value, is a proper factor to be considered in arriving at a sum which would fairly and justly compensate each plaintiff for her loss. See the opinion filed this day in the case of Patricia J. Reynolds v. United States of America, Civil Action No. 10142. C101 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PATRICIA J. REYNOLDS v. : Civil Action No. 10142 UNITED STATES OF AMERICA DECREE An order having been entered by Judge Kirkpatrick on October 12, 1950, in the above-entitled action, establishing as a fact that the death of Robert E. Reynolds was caused solely and exclusively by the negligence and wrongful acts and omissions of the officers and employees of defendant while acting within the scope of their office and employment; And the issue of damages in the above-entitled action having been duly tried before Judge Kirkpatrick on November 27, 1950, and both sides having been heard by counsel and an _ opinion’ having been (filed on February 20, 1951, finding that the full value of the life of Robert E. Reynolds as of the date of his death is $65,000. Now February 27, 1951, on motion of Charles J. Biddle, Esquire, counsel for plaintiff, it is duly ordered that judgment be entered in favor of the plaintiff, Patricia J. Reynolds, and against the defendant, United States of America, in the sum of $65,000. /s/ Kirkpatrick Ch. J. C102 EXHIBIT I [ORIGINAL ACCIDENT REPORT AND ACCOMPANYING DOCUMENTS; TEXT SET FORTH IN EXHIBIT J} C103 EXHIBIT J C104 [p.1}* | REPORT OF SPECIAL INVESTIGATION OF AIRCRAFT ACCIDENT INVOLVING TB-29-100XX NO. 45-21866 1. DATE AND TIME OF ACCIDENT: 6 October 1948, approximately 1408 EST 2. LOCATION OF ACCIDENT: Approximately 2 miles south of Waycross, Georgia 3. AIRCRAFT TYPE, MODEL, SERIES AND SERIAL NUMBER: TB-29-1L00XX No. 45-21866 4. AIRCRAFT HOME STATION AND ORGANIZATION: 3150th Electronics Squadron Robins Air Force Base Robins Field, Ca, AMC RESULTS TO AIRCRAFT: Demolished HISTORY OF AIRCRAFT AND ENGINES: Aircraft: Date of Manufacture —- 19 September 19XX Total Hours - 305:00 Date of last overhaul - New {* The following stamps and marginalia are found on page 1 of the origina! document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED BY AUTHORITY OF AFR 205 -1 BY RTM DATE 14 SEP. 50__ CLASSIFICATION CANCELLED OR CHANGED TO SECRET BY AUTHORITY OF CS/USAF BY lillegible} DATE 3 JAN. 49 0000760-52 C105 ENGINES 1 2 3 4 Model R-3350-57 R-3350-57 R-3350-57A R-3350-57A Number M-460686 D-.310027 D-310035 D-310313 Total hours 112:35 224:45 116:40 255:20 Hours since last major overhaul 112:35 New New 15:20 Overhauling depot OCAMA Not appl Not appl. OCAMA Propeller model Curtis Kil. Curtis Kl. Curtis K1. Curtis K1 Hours since last major overhaul! 113:35 New New 15:20 The aircraft was accepted with a total of 70 hours at Wright AFB on 25 June 1947. Records of the aircraft’s history prior to this time were not available for study by the accident investigators. 7. PILOT, HOME STATION AND ORGANIZATION: Ralph W. Irwin, AO-666261 Captain, USAF lst Experimental Air Service Squadron lst Experimental Guided Missile Group Proving Ground Command Eglin AFB, Eglin Field, Florida 8. PILOT HISTORY: Ist Pilot or Other Pilot or Flying Time Solo Student Other Student Total hours 2507:00 616:00 Hours this type 2149:00 505:00 Hours this model 931:00 359:00 [p.2]* (* The following stamps and marginalia are found on page 2 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED BY AUTHORITY OF AFR 205 -1 BY RTM DATE _ 14 SEP. 50 0000760-53 C106 Ist Pilot or Otker Pilot or Flying Time Solo Student Other Student Hours last 90 days 51:00 45:00 Hours last 30 days 13:00 8:00 Hours last 24 hours 1:00 0:00 Actual combat hours 327:00 109:00 Instrument rating: White, 30 March 1948, Eglin AFB, Florida 9. COPILOT, HOME STATION AND ORGANIZATION: Herbert W. Moore, Jr., AO-48322 Captain, USAF 3150th Electronics Squadron Robins Air Force Base Robins Field, Ga., AMC 10. COPILOT HISTORY: Ist Pilot or Other Pilot Flying Time Sole Student Other Student Total hours 2210:00 743:00 Hours this type 1524:00 261:00 Hours this model 0:00 71:00 Hours last 90 days 0:00 20:00 Hours last 30 days 0:00 8:00 Hours last 24 hours 0:00 1:00 Actual combat hours: 340:00 11. OTHER CREW MEMBERS, HOME STATION, ORGANIZATION AND HISTORY: See par. 12. 12. RESULTS TO CREW AND PASSENGERS: Pilot - Capt. Ralph R. Irwin, AO-666261, Fatal Copilot —- Capt. Herbert W. Moore, Jr., AO-48322, No injury Engineer — T/Sgt. Earl W. Murrhee, AF-1417471, 3150th Electronics Squadron, Robins Air Force Base, Robins Field, Ga., No injury C107 12. RESULTS TO CREW AND PASSENGERS: (Contd) Radio operator — T/Sgt. Melvin T. Walser, AF-6921342, 3150th Electronics Squadron, Robins Air Force Base, Robins Field, Ga., Fatal Left scanner — T/Sgt. Walter J. Peny, AF-6900255, 3150th Electronics Squadron, Robins Air Force Base, Robins Field, Ga. Minor injury Right scanner — M/Sgt. Jack G. York; AF-6968181, 3150th Electronics Sq., Robins Air Force Base, Robins Field, Ga., Fatal [p.3)* AP - T/Sgt. Dervin T. Irvin, AF-6953492, 3150th Electronics Squadron, Robins Air Force Base, Robins Field, Ga., Fatal Navigator - Ist Lt., Lawrence W. Pence, Jr., AO-762068, 1st Exp. Air Service Sq. lst Exp. Guided Missile Group, PGC, Eglin Air Force Base, Eglin Field, Florida, Fatal Passenger — A. Palya, Civilian, RCA, Camden, N.J. — Fatal Passenger — R. E. Cox, Civilian, Wright-Patterson Air Force Base - Fatal Passenger — Robert Reynolds, Civilian, RCA, Camden, N.J. - Fatal Passenger - E. A. Nechler, Civilian, Franklin Institute of Technology, Philadelphia, Pa. - Minor injury Passenger — W. H. Brauner, Civilian, Franklin Institute of Technology, Philadelphia, Pa. — Fatal (* The following stamps and marginalia are found on page 3 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED bs RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM _ DATE _ 14 SEP. 50 0000760-54 C108 13. NARRATION OF EVENTS: On 6 October 1948 B-29 No. 45-21566, piloted by Capt. Ralph W. Irwin, AO-666261, took off from Robins AFB, on a research and development mission. The flight was to be a 5-hour mission for the purpose of completing an electronics project assigned to the organization. The landing list included the crew of 8 and 5 civilian technical representatives affiliated with the project. Three of the civilians were employed by the Radio Corporation of America and two by the Franklin Institute of Technology. The normal preflight and before takeoff checks were made by the crew and the takeoff and climb to 18,500 feet was without incident. Upon reaching approximately 18,500 feet the manifold pressure on No. 1 engine dropped to about 20 inches. An attempt to bring it back by the use of the manual emergency system and by replacing the turbo amplifier was ineffective so the engine was feathered. The crew was advised by the pilot to put on their parachutes and a descent and depressurization were started. During the process of feathering No. ! a fire broke out that engulfed the aft half of the engine and the flames extended past the left scanner’s window. Attempts to extinguish the fire by use of the engine fire extinguishers were to no avail. The manifold pressure on engine No. 2 then dropped to approximately 20 inches and about this time the main landing gear switch was activated and then the bomb bay doors were opened. Ceincidental with the opening of the bomb bay doors the aircraft went into a spin to the left. The aircraft entered the spin violently and the centrifugal forces developed made movements by the personnel difficult. Two occupants in the C109 13. NARRATION OF EVENTS: (Contd) forward compartment and two in the waist were able [p.4]* to abandon the aircraft and successfully opened their parachutes. The remaining six in the waist and three in the forward compartment were later found in or near the wreckage which was located approximately 2 miles south of Waycross, Georgia. 14. FACTS: The flight was an authorized research and development mission and all civilian passengers were authorized to participate in -eerial flights under the provision of paragraph 1A(6) AR 95-90 dated 26 April 1947. Three of the five civilians on the landing list had previously flown in B-29’s assigned to this squadron. (Exhibits I-1, I-2, I-3) (1) A. Palya | (2) Richard B. Cox (3) Robert B. Reynolds Two of the civilians that were included on the landing list had never previously flown with the organization and there was no record of previous B-29 flying time. (Exhibit 1-4, I-5) (1) Will Brauner (2) Eugene A. Meckler [* The following stamps and marginalia are found on page 4 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SEGREF BY RTM DATE 14SEP.50 0000760-55 C110 14. FACTS: (Contd) d. The crew members had not previously flown together as a crew prior to the date of the accident. (Exhibit B-1, 06, B-2 Q37). Weather was not a factor ir this accident in that all sequences for the area were above VFR minimum. (Exhibit G). The B-29 had approximately 15 hours flying time since the last 100 hours inspection. The aircraft was last flown six days prior to the date of the accident. No write ups reported by the pilot on Form I-A were considered applicable to the subject accident. (Exhibit H). Technical Orders 01-20EJ-177 and 01-20EJ-178, dated 1 May 1947, were not complied with. These Technical Orders provide for changes in the exhaust manifold assemblies for the purpose of eliminating a definite fire hazard. (Exhibit G-13). Form F, Weight and Balance Clearance, was filed with Operations Section and the aircraft was loaded within the permissible 00 limits. (Exhibit F). [p.5]* 1. Take-off and climb to altitude was accomplished without incident and all engine instrument readings were normal until an altitude of between 15,000 and 20,000 feet was attained when the manifold pressure on No.1 engine dropped to 20 inches. (Exhibit B-2 Q47). [* The following stamps+and marginalia are found on page 5 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM _ DATE _ 14 SEP. 50 0000760-56 14. C1l1l FACTS: (Contd) The engineer attempted to restore the manifold pressure by utilizing the manual amplifier system. This proved unsuccessful and a new amplifier was installed. Then this failed to rectify the situation, the engine was feathered on the direction of the pilot. (Exhibit B-2 Q47). Before the No. 1 engine was in a full feathered position, the left scanner and engineer observed a discoloration of the access doors to the engine accessory section. Fire broke out immediately according to the engineer’s and scanner’s statements. (Exhibit B-3 Q94). The fire extinguishers were utilized in an attempt to extinguish the fire; however, according to the engineer’s statement it helped only momentarily. Fire was next observed to engulf the entire engine and the wing area immediately to the rear of No. 1 engine. (Exhibits B-2 Q45, B-3 Q94). The pilot, when feathering No. 1 engine, inadvertently hit the feather switch on No. 4 engine; however, according to the testimony the copilot immediately pressed the switch to unfeather No. 4 engine. (Exhibit B-1 Q10). The copilot lowered the gear by the normal method after the engineer’s attempt to lower the nose gear failed. (Exhibit B-1 Q11). Bomb bay doors were opened by the pilot and according to the engineer and copilot the aircraft went into a spin to the left immediately after the doors were opened. (Exhibits B-1 Q11, B-2 Q48). Several witnesses on the ground reported hearing a definite explosion when the B-29 was at what they estimated to be 15,000 feet and they further reported that the left wing came off at that time. (Exhibits C, 4, 5, 6, 7, 8, 9, 10 and 11). C112 14. FACTS: (Contd) q. Examination of the wreckage revealed that No. 2, 3 and 4 engines showed no evidence of fire. The No. 1 engine showed evidence of fire around the right collector ring and supercharger and considerable melted and burned metal was found throughout the area from the accessory section to the supercharger. The No. 1 propeller was in the full feathered position. The No. 4 propeller blades were also found in the full feathered position. (Exhibit J). (p.6]* r. The crew was alerted to prepare to abandon the aircraft and the pilot started to descend and depressurize the aircraft. (Exhibit B.3 Q94). s. Movement of personnel in the aircraft was greatly restricted by the centrifugal force imparted by the spin and only the left scanner, Sgt. Peny and a civilian technician, Mr. Meckler, were able to successfully abandon the aircraft from the rear compartment through the bomb bay. The copilot, Capt. Moore, and flight engineer, Sgt. Murrhee, were the only persons that successfully parachuted from the forward compartment through the nose wheel escape hatch. t. The bodies of T/Sgt. Melvin, T. Walker and Lt. Lawrence N. Pence, Jr. were found free of the aircraft, with parachutes partially opened. Mr. Palya’s body was also found free of the aircraft with parachute not released. [* The following stamps and marginalia are found on page 6 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECREF BY RTM _ DATE _ 14SEP. 50 0000760-57 14. 15. C113 FACTS: (Contd) Apparently all three persons left the aircraft too late to successfully utilize their parachutes. (Exhibit G-12). Inspection of the wreckage that was scattered over an area of two miles failed to disclose any evidence of fire either before or after the crash, except in the case mentioned in paragraph q above. (Exhibit J.) Nine occvpants were fatally injured ir the crash. Two persons received minor injuries and two escaped without injury. (Exhibit G-12). Investigation disclosed that the 315G@th Electronics Squadron has not established permanent flying crews in the performance of their experimental flights. The organization had six pilots present for duty at the time of the accident. (Exhibit B-4 Q107). The passengers and crew including the civilian passengers were not briefed prior to take-off on emergency procedures in accordance with AF Regulation 60-5. (Exhibits B-3 Q55 and 90, C-2). The Commanding Officer of the 3150th Electronics squadron failed to exercise adequate supervision to insure that his aircraft commanders complied with the briefing requirements for emergency procedures as specified in AF Regulation 60-5. (Exhibit B-4 Q117, 119, 120 and 121). DISCUSSION: The pilot in feathering the No. 1 engine, inadvertently hit the feathering switch on the No. 4 engine. According to testimony, the copilot immediately pressed the switch to unfeather No. 4, however, since the propeller on the No. 4 engine was found in the feathered position, C114 15. DISCUSSION: (Contd) it is believed that his attempt to unfeather this engine was unsuccessful. (p.7]* b. No. 1 engine showed evidence of fire around the right collector ring and supercharger, and considerable melted and burned metal was found throughout the area from the accessory section to the supercharger. The propeller was in the full feathered position. c. The burned and damaged state of No.1 engine and examination of the other evidence available did not allow positive establishment of the causes for the fire and drop in manifold pressure. The fire was probably caused, however, by breaks which were found in the right exhaust collector ring. The fire may have been aggravated by non-compliance with Technical Orders 01-20EJ-177 and 01-20EJ-178. d. The breaks found in the collector ring also lead to two possibilities which singularly or in combination could have caused the drop in the No. 1 engine manifold pressure. (1) The fire from the collector ring could have burned a hole in the induction system thus permitting a loss in manifold pressure. {* The following stamps and marginalia are found on page 7 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECREF BY RTM_ DATE _ 14SEP. 50 0000760-58 C115 15. DISCUSSION: (Contd) (2) The loss of exhaust gases through the breaks in the collector ring could have been sufficient: to reduce the effectiveness of the turbo superchargers to a point where they could only maintain 20 inches of manifold pressure. e. A possibility for the loss in manifold pressure on No. 2 engine is that the flight engineer inadvertently shut off the fuel for this engine during the process of feathering No. 1. The flight engineer is very positive, however, in his belief that this mistake was not made. f. Two possible causes for the aircraft’s entering into a spin are: (1) The pilot inadvertently caused the aircraft to stail. This possibility is discredited, however, by the pilot’s experience and by the fact that the copilot observed the aircraft to be in a descending attitude, just prior to its entry into the spin. (2) The large fire in the No. 1 engine may have reduced the lift of the left wing sufficiently to cause the aircraft to fall off into a spin. g. The disintegration of the aircraft which occurred during the spin was probably contributed to by the fire existing in the No. 1 engine. h. The opinions of the maintenance personnel were contradictory; however, the Form 41B bears out the opinions of those who believed that the aircraft required more than the normal amount of maintenance. This aircraft was in commission 48.7% of the time since 1 April 1948, as compared to the Air Force average or 57% of B-29 aircraft in commission for a similar 6-month period. 15. C116 DISCUSSION: (Contd) [p.8]* 16. Vibrations reported in the aircraft’s Form 41B in several instances could have been contributed to the maintenance required on the fuel system and other portions of the aircraft. These vibrations may or may not have been caused by loose rivets in the horizontal stabilizer undetected because of non-compliance with Technical Order 01-20EJ-99 which requires inspection of these rivets. Confusion may have existed among the crew during this accident; however, the period of time from the start of the fire until the aircraft entered a spin was very short. The projects which the 3150th Electronics Squadron were conducting require aircraft capable of dropping bombs and operating at altitudes of 20,000 feet and above. CONCLUSIONS: The aircraft is not considered to have been safe for flight because of non-compliance with Technical Orders 01- 20EJ-177 and 01-20EJ-178. Fire developed in the No. 1 engine as a result of the failure of the right exhaust collector ring. AF Regulation 60-5 was violated in that the passengers and crew were not properly briefed. {* The following stamps and marginalia are found on page 8 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SEGREF BY RTM _ DATE _ 14 SEP. 50 0000760-59 C117 17. RECOMMENDATIONS: a. That a copy of the memorandum report of this investigation be forwarded to the Commanding General, Air Material Command for information and any action deemed appropriate. b. That all Air Force agencies wherein civilian personnel participate in aerial flight in military aircraft be required to indoctrinate these civilians in the proper emergency procedures and in the use of emergency equipment appropriate to the types of aircraft in which they will be flying. This indoctrination should be in addition to and not in lieu of the prior to ~— briefings required by AF Regulation 60-5. c. That all agencies place special emphasis on the employment of highly qualified maintenance and flight personnel and the establishment of minimum permanent flight crews consisting of pilot, copilot and flight engineer for projects of this nature. d. That where ever feasible flight test aircraft be bailed to the commercial concern conducting the test. {[p.9]* e. That consistent with normal security measures, the civilian agency concerned be given the privilege of satisfying thernselves as to the airworthiness of aircraft in which they are flying when bailment is not feasible. (* The following stamps and marginalia are found on page 9 of the original document:} CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECREF BY RTM_ DATE _ 14SEP. 50 0000760-60 17. 18. C118 RECOMMENDATIONS: (Contd) That copies of official AF accident reports not be sent to civilian agencies. STATEMENT OF REBUTTAL: Not applicable. JOHN W. PERSONS Colonel, USAF Chief, Flying Safety Division C119 [p.1]}* AFGAI-40 MEMORANDUM FOR THE CHIEF OF STAFF, UNITED STATES AIR FORCE THRU: Deputy Chief of Staff, Materiel SUBJECT: Aircraft Accident Involving TB-29-100XX No. 45-21866 1. Narration of Events: On 6 October 1948 B-29 No. 45- 21866, piloted by Capt. Ralph W. Irwin, AO-666261, took off from Robins AFB, on a research and development mission. The flight was to be a 5-hour mission for the purpose of completing an electronics project assigned to the organization. The loading list included the crew of 8 and 5 civilian technical representatives affiliated with the project. Three of the civilians were employed by the Radio Corporation of America and two by the Franklin Institute of Technology. The normal preflight and before takeoff checks were made by the crew and the takeoff and climb to 18,500 feet was without incident. Upon reaching approximately 18,500 feet the manifold pressure on No. 1 [* The following stamps and marginalia are found on page 1 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED KESTRICTED BY AUTHORITY OF AFR 205 -1 BY RTM DATE 14SEP.50_ CLASSIFICATION CANCELLED OR CHANGED TO SECRET BY AUTHORITY OF CS/USAF BY _[illegible) | DATE 3 JAN. 49 0000760-34 C120 engine dropped to about 20 inches. An attempt to bring it back by the use of the manual emergency system and by replacing the turbo amplifier was ineffective so the engine was feathered. The crew was advised by the pilot to put on their parachutes and a descent and depressurization were started. During the process of feathering No. 1 a fire broke out that engulfed the aft half of the engine and the flames extended past the left scanner’s window. Attempts to extinguish the fire by use of the engine fire extinguishers were to no avail. The manifold pressure on engine No. 2 then dropped to approximately 20 inches and about this time the main landing gear switch was activated and then the bomb bay doors were opened. Coincidental with the opening of the bomb bay doors the aircraft went into a spin to the left. The aircraft entered the spin violently and the centrifugal forces developed made movements by the personnel difficult. Two occupants in the forward compartment and two in the waist were able to abandon the aircraft and successfully opened their parachutes. The remaining six in the waist compartment and three in the forward compartment were later found in or near the wreckage which was located approximately 2 miles south of Waycross, Georgia. [p.2)* 2. Discussion and Facts: a. The two civilians from the Franklin Institute of {(* The following stamps and marginalia are found on page 2 of the original document:| CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM DATE 14 SEP.50__ 0000760-35 C121 Technology, Mr. Brauner and Mr. Meckler, had never previously flown with the organization and there was no record of previous B-29 flying time. b. The crew members had not previously flown together as a crew prior to the date of the accident. However, the members of the crew were well qualified individually. c. The 3150th Electronics squadron does not establish permanent flight crews for their B-29 aircraft flights. The organization had six pilots present for duty at the time of the accident and this was believed insufficient to establish fixed crews and still maintain pilot proficiency. d. The passengers and crew were not briefed prior to takeoff on emergency procedures in accordance with AF Regulation 60-5. e. The Commanding Officer of the 3150th Electronics Squadron did not exercise adequate supervision to insure that his aircraft commanders complied with the briefing requirements for emergency procedures as specified in AF Regulation 60-5. f. The pilot in feathering the No. 1 engine, inadvertently hit the feathering switch on the No. 4 engine. According to testimony, the copilot immediately pressed the switch to unfeather No. 4, however, since the propeller on the No. 4 engine was found in the feathered position, it is believed that his attempt to unfeather this engine was unsuccessful. g. Technical Orders 01-20EJ-177 and 01-20EJ-178, dated 1 May 1947, were not complied with. These Technical Orders provide for changes in the exhaust manifold assemblies for the purpose of eliminating a definite fire hazard. h. No. 1 engine showed evidence of fire around the right collector ring and supercharger, and considerable melted and’ burned metal was found throughout the area C122 from the accessory section to the supercharger. The propeller was in the full feathered position. i. The burned and damaged state of No. 1 engine and examination of the other evidence available did not allow positive establishment of the cause for the fire and drop in manifold pressure. The fire was probably caused, however, by breaks which were found in the right exhaust collector ring. The fire may have been aggravated by non-compliance with Technical Orders 01-20EJ-177 and 01-20EJ-178. [p.3]* j. The breaks found in the collector ring also lead to two possibilities which singularly or in combination could have caused the drop in the No. 1 engine manifold pressure. (1) The fire from the collector ring could have burned a hole in the induction system thus permitting a loss in manifoid pressure. (2) The loss of exhaust gases through the breaks in the collector ring could have been sufficient to reduce the effectiveness of the turbo superchargers to a point where they could only mainiain 20 inches of manifold pressure. k. A possibility for the loss in manifold pressure on No. 2 engine is that the flight engineer inadvertently shut off the fuel for this engine during the process of feathering No. 1. The flight engineer is very positive, however, in his belief that this mistake was not made. {* The following stamps and marginalia are found on page 3 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED ~ RESTRICTED BY AUTHORITY OF A!» 205 -1 SECREF BY RTM _ DATE _ 14 SEP. 50 0000760-36 C123 l. Two possible causes for the aircraft’s entering into a spin are: (1) The pilot inadvertently caused the aircraft to stall. This possibility is discredited, however, by the pilot’s experience and by the fact that the copilot observed the aircraft to be in a descending attitude, just prior to its entry into the spin. (2) The large fire in the No. 1 engine may have reduced the lift of the left wing sufficiently to cause the aircraft to fall off into a spin. m. Testimony indicates that all of the personnel had been alerted to prepare to abandon the aircraft and had donned their parachutes prior to its entry into the spin. n. Movement of personnel in the aircraft was greatly restricted by the centrifugal force of the spin and only the left scanner, Sgt. Peny, and a civilian technician, Mr. Mecklar, were able to successfully abandon the aircraft from the rear compartment. The copilot, Capt. Moore, and the flight engineer, T/Sgt. Murrhee are the only persons that successfully parachuted from the forward compartment. [p.4]* o. The disintegration of the aircraft which occurred during the spin was probably contributed to by the fire existing in the No. 1 engine. {* The following stamps and marginalia are found on page 4 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM DATE 14 SEP. 50 0000760-37 C124 p. The aircraft had completed a 100 hour inspection 15 hours prior to this flight and was in a satisfactory condition except for technical order non-compliance. q. The opinions of the maintenance personnel were contradictory; however, the Form 41B bears out the opinions of those who believed that the aircraft required more than the normal amount of maintenance. r. Vibrations reported in the aircraft’s Form 41B in several instances could have contributed to the maintenance required on the fuel system and other portions of the aircraft. These vibrations may or may not have been caused by loose rivets in the horizontal stabilizer undetected because of non-compliance with Technical Order 01-20EU- 99 which requires inspection of these rivets. s. Confusion may have existed among the crew during this accident; however, the period of time from the start of the fire until the aircraft entered a spin was very short. t. The projects which the 3150th Electronics Squadron were conducting require aircra‘t capable of dropping bombs and operating at altitudes of 20,000 feet and above. 3. Recommendations: a. That a copy of the memcrandum report of this investigation be forwarded to the Commanding General, Air Material Command for information and any action deemed appropriate. b. That all Air Force agencies wherein civilian personnel participate in serial flig’ * in military aircraft be required to indoctrinate these civilians in the proper emergency procedures and in the use of emergency equipment appropriate to the types of aircraft in which they will be flying. This indoctrination should be in addition to and not in lieu of the prior to flight briefings required by AF Regulation 60-5. C125 c. That all agencies place special emphasis on the establishment of a minimum permanent flight crew consisting of pilot, copilot and flight engineer for B-29’s and larger aircraft when civilian personnel are to be carried. [p.5]* d. That where ever feasible flight test aircraft be bailed to the commercial concern conducting the test. e. That consistent with normal security measures, the civilian agency concerned be given the privilege of satisfying themselves as to the airworthiness of aircraft in which they are flying when bailment is not feasible. f. That copies of official AF accident reports not be sent to civilian agencies. [* The following stamps and marginalia are found on page 5 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO __ RESTRICTED SHOREE BY AUTHORITY OF AFR 205 -} RESTRICTED BY KkTM_ DATE _ 14 SEP. 50 0000760-38 C126 [p.1]* DEPARTMENT OF THE AIR FORCE HEADQUARTERS UNITED STATES AIR FORCE WASHINGTON Flying Safety Division Office of The Air Inspector c/o Inspector General, First Region Langley Air Force Base Langley Field, Va. AFCAI-4G SUBJECT: Summary of B-29 Aircraft Accident TO: Commanding General Strategic Air Command Offutt Air Force Base Fort Crook, Nebraska 1. A-special investigation of a B-29 aircraft accident near a southern Air Force Base revealed that as the aircraft reached 18,500 feet at climbing power, the manifold pressure on No. 1 engine suddenly dropped to 20 inches. Emergency attempts to restore manifold pressure were unsuccessful. Further investigation disclosed that the pilot, in feathering No. 1 engine, inadvertently hit the feathering switch on No. 4 engine. At this time it was observed that the access door on No. 1 engine was [* The following stamps and marginalia are found on page 1 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 - CONFIDEM LAE BY RTM DATE _15 SEP. 50 0000760-61 C127 AFCAI-4G, “Summary of B-29 Aircraft Accident,” (Contd) turning brown from _ excessive heat. The fire extinguishers were used without effect and then a severe engine fire \vas observed. While No. 1 engine was being feathered the manifold pressure on No. 2 engine decreased to approximately 20 inches. The main landing gear switch was actuated and the bomb bay doors were opened. The crew was alerted to abandon the aircraft and a short time thereafter the aircraft went into a violent spin to the left. Two occupants in the forward compartment and two in the waist were able to abandon the aircraft and successfully open their parachutes. The remaining nine personnel were killed when the aircraft crashed. 2. Findings: a. The aircraft commander, copilot and engineer had not flown together as a crew prior to this flight. b. The crew and civilian technicians on board were not briefed by the aircraft commander on emergency procedures prior to takeoff. c. The commanding officer of the squadron to which the aircraft was assigned failed to initiate follow-up action to determine whether his aircraft commanders were complying with existing regulations regarding briefing passengers and crew prior to takeoff. [p.2] (* The following stamps and marginalia are found on page 2 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 CONFIDENTIAE BY RTM_ DATE _15SEP. 50 0000760-62 C128 AFCAI-4G, “Summary of B-29 Aircraft Accident,” (Contd) d. Technical Orders 01-20EJ-177, 01-20EJ-178 and 01-20EJ-99 were not complied with. The first Technical Order stated provides for changes in the exhaust manifold assemblies for the purpose of eliminating a defin’ ~ fire hazard. e. No. 1 engine showed evidence of fire around the right collector ring and supercharger; however, the burned and damaged state of the engine did not allow for positive establishment of the causes for the fire and drop in manifold pressure. The fire was probably caused, however, by breaks which were found in the right exhaust collector ring. The fire may have been aggravated by non-compliance with Technical Order 01-20EJ-177, in that heat shields were not installed at the rear lower cowl assembly to prevent excessive heat from entering the accessory section. f. Vibrations reported in several instances may or may not have been caused by loose rivets in the horizontal stabilizer because of non-compliance with Technical Order 01-20EJ-99 which requires inspection of these rivets. 3. The Accident Investigation Board concluded that the most probable cause factor for this accident was the failure to comply with Technical Order 01-20EJ-177. 4. The circumstances surrounding this accident are brought to your attention for your information and guidance. BY COMMAND OF THE CHIEF OF STAFF: MURL ESTES Lt. Colonel, USAF Deputy Chief, Flying Safety Division C129 [p.1]* TESTIMONY OF HERBERT W. MOORE, JR., CAPTAIN, USAF Given to Robert J. D. Johnson, Major, USAF, Investigating Officer, Inspector General, First Region, Langley Air Force Base, Langley Field, Virginia, at Headquarters, Warner Robins Air Material Area, Robins Air Force Base, Robins Field, Georgia, on 11 October 1948. Having been duly sworn and advised of his rights under the 24th Article of War, the witness was examined and testified as follows: 1Q Will you state your name, rank, serial number and duty assignment? A Herbert W. Moore, Jr., Captain, USAF, A048322, Adjutant, 3150th Electronics Squadron. 2Q Captain | Moore, will you give your flying experience in B-29 Aircraft? A Approximately 100 hours. I can only guess that I have made 10 landings, have probably sat through maybe 30 of them. 3Q_ Are you a qualified B-29 first pilot? A No, sir. {(* The following stamps and marginalia are found on page 1 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SEECREF BY RIM _ DATE _15SEP. 50 0000760-69 C130 4Q Have you previously flown with Captain Erwi.? A Yes, sir. 5Q To your knowledge, has the crew to include Sergeant Murrhee, Sergeant Peny flown with Captain Erwin and yourself on a previous mission? Have you over flown as a crew? A I don’t really know, sir, I really don’t. 6Q Have you ever flown with Sergeant Murrhee, Sergeant Peny or Sergeant York before? A_ I probably have, but not going as first pilot, some of those names I just know the man, but can think of people I have flown with. Just don’t know if I have flown with them before. 7Q Is it a policy or practice of the 3150th Electronics Squadron to have established crews, or according to the needs, do you just pick people who aren’t doing anything to go on a particular flight? A As I understand it, there are established crews but we haven’t been able to keep to that because of shortage of primarily officer personnel, There [p.2]* are regularly assigned flight engineers and crew chiefs, but I think even they alternate. On flight engineers, I am sure. 8Q. On the 6th of October, who conducted the briefing of the passengers prior to the take-off? (* The following stamps and marginalia are found on page 2 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED SECREF BY AUTHORITY OF AFR 205 -1 RESTRICTED BY RTM _ DATE _ 15 SEP. 50 0000760-70 C131 A_ I was late getting out there, sir, but Captain Erwin was there. I wasn’t there for any briefing. When the flight was originally scheduled to go out in the morning at 8 o’clock and Captain Erwin had started the briefing then and checked the names of those that were there, checked them with the flight clearance, etc. I don’t know if any further briefing was conducted because of the trouble they had with number four engine, which caused the flight to be cancelled. 9Q What was the trouble that you experienced with number four engine? A There was a gasket that had to be replaced. I don’t know just what gasket. 10Q_ Will you give in as much detail as you can recall the complete flight from the time of take-off until you abandoned the aircraft? It is quite important that you get as much detail in the proper sequence as you can remember. A Well, the normal procedure was accomplished in starting the engines, and prior to taxiing out, the engineer reported that number two was running a little hot, whether that was oil temperature or head temperature, I don’t know, but Captain Erwin was aware of it and favored that engine on taxiing out. On the engine run-up, number one checked alright and number two showed a magnetto drop of 100 RPM, then we checked three and four and they appeared alright. The power check, Captain Erwin elected to use number two because it showed the RPM drop , so he went at a full throttle with turbo on for approximately four seconds, which is a little longer than normal, to see if there was any loss of power. There was none, and | didn’t think anything of it and neither did Captain Erwin. The take-off was normal and there was no loss of power after take-off, with gear up, flaps up, power was reduced to 43 inches and 2400 RPM. We had to climb throvgh or around some light cumulus and I noticed that Captain Erwin was holding 185 IAS. The engineer reported one, two and four engines as running a little hot. At about that time, we cleared of the C132 clouc id Captain Erwin either reduced or let the manifold pressure come down to 40 inches during the climb and increased his air speed to 195. As nearly as I can recall, there was no further report of any trouble or malfunction of the engines until we reached about 18,500 or 19,000 feet. At that time either Captain Erwin or the engineer reported that the manifold pressure on number one had dropped to 23 inches. A conversation started between Captain Erwin and the engineer about the engine, and the engineer reported that the fue! consumption on that engine had dropped to, I believe, 125 gallons per hour. Captain Erwin then asked how the other instruments on that engine were reading; the engineer said that all appeared normal. I believe at about this time that Captain Erwin advised [p.3]* everybody to have their chutes on. Captain Erwin didn’t think that there was too much cause for alarm, at least I believe he didn’t, and I know I didn’t, but we did put out our cigarettes then. I can only guess the time lapse between our noticing the trouble with number one engine and the time we reached 20,000 feet. When we reached 20,000 feet, Captain Erwin reduced power to 31 inches on the other three engines and I reduced the RPM to 2100. Then Captain Erwin asked the engineer to try to bring up the manifold pressure on number one manually. It hadn’t fluctuated as I recall, held at 23. Then it was 23 on Captain Erwin’s and 25 on the engineer’s or vice versa. The engineer brought the manifold pressure up manually and I saw the indicator come up to 31 inches [* The following stamps and marginalia are found on page 3 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM _ DATE _15SEP. 50 0000760-71 C133 and then start falling right back to 23. Then Captain Erwin said he would feather number one. Captain Erwin was looking out the window at number one engine as he reached for the feathering button and accidentally pushed the number four feathering switch. I immediately pressed the switch, unfeathering. This was almost simultaneous with his pressing the switch to feather. He then pressed the feathering switch on number one. The engineer reported that fuel shut-off valves were closed, booster pumps were off, the mixture control to idle cut-off. 11Q_ Did he chop the throttle first? A That I couldn’t see. At the time Captain Erwin elected to feather number one, he put the plane in a descending attitude. I remember feeling the slight vibration that goes with an engine feathering. Captain Erwin ordered the cabin pressure reieased. Captain Erwin then told the left scanner to keep his eye on that engine and watch for possible outbreak of fire. The scanner immediately reported smoke coming from some part of number one engine. Captain Erwin then told the engineer to pull the fire extinguisher on that engine, which he did, and the scanner reported that the smoke disappeared, but came back almost immediately accompanied by a rapidly spreading fire. About a minute seemed to have gone by and | had not heard any cabin pressure released. I knew that it would be accompanied by either a noise or feel a pressure on the ears. I unbuckled my seat belt and turned around to look at the engineer and see what was going on and asked him if he has released the pressure. He said he had. Somebody then said to open the hatch leading into bomb bay; I realize now that it would be futile to try to get that door open without first releasing the pressure. Still nobody seemed to be doing anything, so I got up, took a step towards the bomb bay hatch. At about the time I took a step toward the hatch, Lieutenant Pence just turned to the door and it blew open. In stepping back across the nose-wheel door, I asked the engineer if he had dropped the nose-wheel. He said yes, so I C134 reached down to get the door open and somebody, either Lieutenant Pence or Sergeant Walker, came up and hooked the door in the up position, and I saw that the gear was still in the fully retracted position, so I pressed the gear down switch on the pilot’s panel, and at the same time, Captain Erwin said what’s wrong with number two, so I looked out the nose of the plane and could see that we are in a not too severe dive and about a twenty degree bank to the left and I noticed that Captain Erwin had a little more than half right aileron control, then he opened the bomb bay doors with the switch on the pilot’s panel. It must have been at this time that the airplane was thrown into the spin. I was thrown forward against the bombardier’s seat, facing to the rear. I can remember seeing someone standing by the nose-wheel escape hatch, holding on to one of the upright posts on the inside of the [p.4]* door. There was no confusion, and as I recall, not a word was being said by anyone at this time. I pulled myself back to the nose-wheel escape hatch and saw someone lying face-up in the well. The nose gear had extended partially but not enough to allow escape. I got a foot down in there and kicked that person on through. The person standing above me said “go”, and I didn’t hesitate and went on through after the person that I had pushed out. 12Q Was a feathering check made prior to take-off? [* The following stamps and marginalia are found on page 4 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SEGREF BY RTM_ DATE _ 15 SEP. 50 0000760-72 C135 A I don’t believe it was. Along that line, in one of the transition rides I had here, I started to make a feathering check one time and was told that you don’t check the feathering switches with this particular type feathering system because you can only feather, unfeather and feather. 13Q Do you know whether they are electrical? A This one airplane we were in has the electric, I think. Believe it is Curtis, most of them have the Hamilton. 14Q_ Did you actually see number one in the feathered position? A No, sir, I couldn’t from my position 15Q Was there any report received from the scanner up until the time you feathered number one engine? A As nearly as I can recall, No, although Captain Erwin had been looking out the window at the engine from his position. 16Q Do you recall the position of the cowl flaps? A_ No, sir. 17Q Did you personally observe any smoke or fire from number one? A Nosir. -18Q When you were thrown forward by the bombardier’s seat, did Captain Erwin appear to be having difficulty maintaining control? A He wasn’t fighting the controls. At the time he reached for the bomb bay door switch, there was no grabbing, was looking around the cockpit, etc. 19Q When you were thrown forward by the bombardier’s seat, did you observe him having difficulty maintaining control? A I don’t recall seeing him make any definite movements. C136 20Q When the hatch to the bomb bay was opened, were the bomb bay doors open at that time? [p.5]* A No, sir. 21Q Did Captain Erwin open the bomb bay doors after you were thrown forward by the bombardier’s seat? A No, sir, it was before | was thrown forward. 22Q Did you actuate the main landing gear switch in the pilot’s compartment? A Yes, sir. 23Q Did you make any observations out to the right toward number three or four engines that were unusual? A No, sir, I was stooped down right beside co-pilot’s seat. 24Q Did Captain Erwin give the order to abandon the aircraft? A_ I had been off interphone since ding back to the rear and did not hear him give the word to abandon the aircraft. 25Q What prompted you to leave? A_ I was sitting there doing absolutely nothing and nobody seemed to be doing a thing. I knew you had to get these doors open and thought well, let’s do something. [* The following stamps and marginalia are found on page 5 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECHIEE BY RTM _ DATE _15SEP.50 0000760-73 C137 26Q In actually abandoning the aircraft, why did you leave, did you see fire? A When I was thrown forward and the airplane was in the spin, the centrifugal force, first experience I had had expect in training plane, and from the position I was in, I just didn’t see what else could be done except to make for it. 27Q Did you observe Captain Erwin eitempting to leave the pilot’s seat? A No, sir. 28Q Was there any smoke or fire in the pilot’s compartment? A_ No, sir. 29Q Can you state for sure which wing it fell off on? A Was definitely on the left wing and the spin was to the left, too. 30Q Had you retracted the flaps? A Flaps come up after take-off. Flaps at the time of the emergency were not let down. [p.6]* 31Q Did you hear any report from the rear of fire, yourself? (* The following stamps and marginalia are found on page 6 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SEGCREF BY RTM _ DATE _ 15 SEP. 50 0000760-74 C138 A At this time the scanner at the time pulled fire extinguisher, remember him saying the smoke disappeared and then it came back on. 32Q At the time Captain Erwin remarked what was wrong with number two, did you hear any further conversation with reg rd to number two engine? A No, sir, I tried to see the instrument panel, but do not recall what I saw on it. It was all at the same time that I looked through the nose to see the attitude of the plane and the amount of control Captain Erwin had on the aileron. MOORE C139 [p.7]* TESTIMONY OF EARL W. MURRHEE, Technical Sergeant, USAF Given to Robert J. D. Johnson, Major, USAF, A037150, Investigating Officer Inspector General, First Region, Langley Air Force Base, Langley Field, Virginia at Headquarters, Warner Robins Air Material Area, Robins Air Force Base, Robins Field, Georgia, on 11 October 1948. Having been duly sworn and advised of his rights under the 24th Article of War, the witness was examined and testified as follows: 33Q Will you state your name, rank, serial number and duty assignment? A Technical Sergeant Earl W. Murrhee, serial number 14171471, my duty is flight engineer. Duty when not flying is inspector. ? 34Q Are you a graduate of an accredited AM school? A I went through an aircraft sheet metal course while working for Pan-American Air Ferries and at the time of the Army taking the air ferrying over, was November 1, 1942, we enlisted in the Air Force. In fact, most everyone did there, and at the time they had a shortage of mechanics on the line and I went on the line for eight months line duty in order to receive my AM rating. (* The following stamps and marginalia are found on page 7 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM DATE __ 15 SEP. 50 0000760-75 C140 35Q Approximately how long have you been working with B-29’s? A Since July 1944. 36Q Approximately how much flying time do you have as a B-29 engineer? A Somewhere around 500 hours. Not positive, just a rough estimate. 37Q Had you ever flown with Captain Erwin prior to the 6th of October? A No, sir, first flight. 38Q Were you assigned as flight engineer on the morning flight that was cancelled? A Yes, sir. 39Q What was the reason that the flight was cancelled? A The civilian electronic engineers had not arrived on the field, that was my understanding. I was out at the plane until the flight was cancelled, went in to see the operations officer to see when flight was going and he said had been cancelled until 1 o’clock. 40Q Did you make the pre-flight inspection? [p.8]* (* The following stamps and marginalia are found on page 8 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM _ DATE _ 15 SEP. 50 0000760-76 C141 A Yes, sir we pressure checked all four engines in the morning and found one fuel leak, number four engine, right fuel injection pump at float seal and that was cleared up immediately. 41Q When you say cleared up, what do you mean by that? A_ I mean seal was replaced and pressure checked and there was no leak. 42Q Were you aware of any mechanical defect at the time the flight was postponed until later in the afternoon. A No, sir. 43Q What did your briefing consist of prior to the take-off by Captain Erwin? A Captain Erwin arrived at the airplane and checked his clearance to make sure that each man was present and had his parachute. That’s before boarding the plane and he made his rounds, walked around landing gears and engines before he got into the plane. 44Q Did you as flight engineer brief anyone on escape hatches and emergency exits? A The Air Force personnel was well-informed in the case of emergency what they were supposed to do. The civilian personnel, I had nothing to do with, do not know what they knew or anything like that. 45Q To your knowledge, did anyone brief the civilian personnel in regard to emergency procedure? A Some had just come down, whether they had been briefed, I do not know. Some had been briefed, that was the regular men of the Field here that stay in our squadron all the time, Mr. Reynolds and Mr. Paula. 46Q In accomplishing the daily pre-flight, did you check your prop feathering? C142 A Yes, sir, they are electric and can check those without engines going. They are not pre-flighted. Usually wait until the pilot is present before we make our engine run-ups, that’s prior to take-off. 47Q Will you give us a brief discription in detail of everything that occurred from the time you took off until the emergency, keeping in mind the sequence and conversations that you overheard from the others? A From the ground up, sir, it was perfectly normal, that is the instruments were all normal. We had no indication of trouble of any type until we [p.9]* got up 20,000 feet and the pilot was preparing to level off, and before any power reductions were made, number one engine lost manifold pressure, dropped to 20 inches. I used emergency to bring it back up, that is manually, to 30 inches and it would not hold. By that time, Sergeant York, crew chief, had come up front and he changed the amplifier, that is number one engine, and I asked for report from scanners. Left scanner, Sergeant Peny reported back that number one engine looked ok to him visually. At that time, Captain Erwin decided to feather number one and number one engine was feathered. I noticed the access door of the accessory section was turning a light brown. {* The following stamps and marginalia are found on page 9 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM _ DATE _15SEP. 50 0000760-77 C143 48Q Would you give me the sequence in feathering? A The pilot pushed the feathering button in and J immediately pushed the fuel shutoff valve to the off position, also turning off tank and engine fuel shutoff valves and pulled fire extinguisher. The fire seemed to _ stop momentarily. I glanced at number two engine instruments and number two engine was losing manifold pressure same as number one did. Informing Captain Erwin, Captain Erwin suggested to hold feathering of number two. At that time, the fire in number one engine, there was a blaze coming out of number one engine out of the cowling, accessory, and I had a report from the scanner that it was coming out of the oil cooler which is on the bottom. At that time Captain Erwin ordered everyone to stand by to abandon ship. This all happened in a second, sir. Captain Erwin pulled the emergency depressurizing valve, opening bomb bay doors at the same time, which seemed to throw the airplane violently to the right. Captain Erwin or Captain Moore, not positive, but one of them said to abandon ship. At that time the lunge threw me on my back in the engineer’s seat. Captain Moore helped to open the lower hatch door and the next movement of the airplane threw me into the hatch and I got out as soon as possible through the lower hatch. Captain Moore told me that he kicked me out. I was stuck in the hatch. On opening my parachute, the airplane was to the rear of me and the next thing I heard was a puff and the airplane went down. It hit the ground before I did. The puff was a mid air explosion. There was pieces around me, I saw landing gears and everything in the air, exactly how it hit the ground, I don’t know. I landed in a creek. Captain Moore landed approximately 150 feet in front of me. We both walked ‘over to the plane and Captain Moore left immediately as soon as he looked the plane over, to make a phone call. At that time, I saw Sergeant Peny being carried off by some civilians. He was walking but was being helped by some civilians. I went over to see the extent of his injury. At that time the civilians noticed blood on the back of my head and advised me to let them take me to the hospital also, C144 but before leaving, a State Trooper and a Marine Sergeant were keeping the people back from the plane and that’s just about all I remember about the plane. I stayed in the hospital until I was brought back that night. 49Q Had you cut back to your cruise setting at the time you noticed the loss of manifold pressure in number one? [p.10] A No, sir. 50Q Do you recall what your generator’s readings were at this time? A Particularly on number one, No, sir, I don’t. 51Q What was your indicated air speed? A 195, sir. I believe there is a five mile difference between my air speed indicator and the pilot’s. 52Q What was the position of the cowl flaps? A Approximately seven degrees, sir. 53Q Open? A_ Yes, sir. 54Q What is the maximum travel of your cow! flaps? A 6% inches. \* The following stamps and marginalia are found on page 10 of the original document: ] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECRET BY RTM DATE _15 SEP. 50_ 0000760-78 C145 55Q_ In degrees? A lam sorry, but don’t remember off hand, do know, but can’t think right now. 56Q What indication did you get from your fuel flow meters? A They became erratic and we lost manifold pressure. Wouldn’t say excessively just number one. 57Q Where the booster pumps on? A Yes, sir. 58Q Were your cylinder head temperatures higher than normal? A_ No, sir, highest was number four which was 205. 59Q What were your oil temperature readings? A I believe, sir, approximately 80, between 75 and 80. 60Q Was there any abnorma!-instrument indications on any engines prior to the time you noticed the drop of manifold pressure in number one? A No, sir, with the exception of number three, believe fuel flow motor showed it was using, « little more fuel than the other engines. I mean approximately thirty gallons. 61Q What is the rate of the fuel flow? (p.11]* (* The following stamps and marginalia are found on page 11 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECREF BY RIM _ DATE _ 15 SEP. 50 0000760-79 C146 A For that power setting, one, two and four was using around 210 per hour and number three approximately 240 per hour. That was 2400 RPM, 39 inches manifold pressure. 52Q Did you handle the throttle? A Pilot handles the throttle entirely. Only thing I handle is fuel mixture and power shutoff valves in feathering an engine. 63Q Did you observe the throttle being retarded before feathering? A_ Yes, sir, he brought the throttle back slightly, not completely off, at one time before pushing the feathering button. 64Q Did he at any time return the throttle to open position? A No, sir, don’t believe he did. The throttle was pulled back because he reduced RPM. Manifold pressure had dropped, but he still had RPM on engine. 65Q You say that the aircraft was turned to the right, did you notice the flight instruments? A_ No, sir, unable to because of the way I was thrown. 66Q Where were you thrown? A_ I was practically lifted up and laid down in my seat, thrown to the left, looking back. I was facing the rear. The airplane was in a right bank and when it went out of control, still went further to the right, sir, and after that, I really don’t know what happened to the instruments. 67Q Did you hear any explosion prior to leaving the aircraft? A No, sir. 68Q Was there any smoke in the cockpit? A No, sir. C147 69Q Could you actually see the flames coming out of the engine? A Yes, sir. 70Q How long would you estimate it was from the time you feathered until the time that you noticed the discolor on the access door? A Just a second sir. 71Q _ But all that time the fuel pressure indicator was holding up? [p.12]* A It was either feathered or being feathered. I looked up, and had completed my end of the feathering. Looked out and seen fire, informed the pilot. 72Q Pilot did definitely lead in the feathering procedure? A Yes, sir. 73Q He reduced the throttle and hit the feathering switch? A Yes, sir, would say we did it together, sir. The airplane engine itself was feathered in the proper way. If I may say so, I flew transition training flights approximately a year and a half in Birmingham Alabama; we flew practically day and night, checking out crews for ferrying purposes and (* The following stamps and marginalia are found on page 12 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED ; RESTRICTED BY AUTHORITY OF AFR 205 -1 SRC REE BY RTM DATE _15SEP. 50 0000760-80 C148 we feathered props during our training course numbers of times and that’s why I can state that we did feather the prop. We never had the opportunity to feather number two, sir. 74Q Had you ever had an engine fire before? A No, sir, first fire. Have lost engines, but no fires. 75Q What manifold pressure can you obtain on the ground without turbo? A Approximately 40 inches. 76Q Is there only one set of feathering switches? A One set, sir. One for each engine. 77Q Did you make any observations on, the number three or four engines? A Visually, sir. Have a thirty minute report from scanner and I can see three and four engines fairly well from my position in the plane. 78Q Did you happen to look over there at the time number one was feathered? A No, sir. 79Q Previousiy? A No, sir. 80Q Was Sergeant York right scanner? A Yes, sir. Sergeant Irvin, sir, I believe had replaced him. In fact he had been in the rear for some time discussing the auto pilot with the radar men. C149 81Q Your instruments didn’t reveal anything unusual for No. 3 and 4 engines? (p.13]* A No, sir, not a thing with the exception of the fuel. We held the same power setting after take-off until we reached 20,000 feet. 82Q Were you aware that Captain Erwin inadvertently hit number four feathering button? A No, sir. 83Q Did this B-29 have the high pressure bomb bay door opening? A Yes, sir, 1500 pounds. MURRHEE (* The following stamps and marginalia are found on page 13 of the original document:] CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 SECREF BY RTM _ DATE _ 15 SEP. 50 0000760-81 C150 [p.14]* TESTIMONY OF WALTER J. PENY, STAFF SERGEANT, UASF Given to Robert J. D. Johnson, Major, USAF, A037150, Investigating Officer, Inspector General, First Region, Langley Air Force Base, Langley Field, Virginia, at Headquarters, Warner Robins Air Materiel Area, Robins Air Force Base, Robins Field, 1, Georgie, on 11 October 1948. Having been duly sworn and advised of his rights under the 24th Article of War, the witness was examined and testified as follows: 84Q Will you state your name, rank, serial number and duty assignment? A Walter J. Peny, Staff Sergeant, 6980255, I am 747 at the present time, 747 is mechanic, primary 750. 85Q Are you a graduate from an accredited Air For[ce] AM school? A. No, sir, lacked a month. I was in Panama at the time and our outfit moved. 86Q Approximately how much flying time do you have in the capacity of scanner of B-29? A Well, I would say approximately 200 hours. [* The following stamps and marginalia are found on page 14 of the original document: | CLASSIFICATION CANCELLED OR CHANGED TO RESTRICTED RESTRICTED BY AUTHORITY OF AFR 205 -1 5 BY RIM _ DATE _ 15 SEP. 50 0000760-82 C151 87Q Prior to the 6th of October, had you ever flown with Captain Erwin or Sergeant Murrhee? [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0648%3A1. Public record. Not legal advice.