Appendix — Grey v. American Airlines, Inc.

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A.

25

Opinion of United States Court of Appeals for the

Second Circuit

No. 73—October Term, 1955.

(Argued October 7, 1955 Decided November 7, 1955.)

Docket No. 23601

7

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(SAME TITLE]

a |

Before:

Hanp, Meprwa and Lumsarp,

Circuit Judges.

Appeal from an order of the United States District Court

for the Southern District of New York. Edward A. Conger,

Judge.

Plaintiffs appeal from an order setting aside verdicts in

favor of plaintiffs and directing judgment in favor of plain-

tiffs in the amount of $16,600 only. Affirmed.

Mayes, Sturt, Donovan & Laurer, New York City

(Arthur M. Laufer and Samuel S. Sturim, New

York City, on the brief), for plaintiffs-appellants.

Haicut, Garpner, Poor & Havens, New York City

(William J. Junkerman and James B. McQuillan,

New York City, of Counsel), for defendant-ap-

pellee. P

Mepina, Circuit Judge:

The parents of the infant plaintiffs and twenty-six other

persons met their deaths during the early hours of the

morning of November 29, 1949, when defendant’s Douglas

26

DC-6 airplane, on an international flight from New York to

Mexico City, crashed at Love Field, Dallas, Texas.

While plaintiffs contended that the Warsaw Convention

was not applicable, because the passenger tickets issued to

decedents did not make reference to the intermediate

‘agreed stopping places’’' of Washington, D. C., and Dal-

las, Texas, motions to strike the usual Warsaw Convention

limitation of liability defenses, based upon this technical

and wholly unsubstantial alleged omission, were denied be-

fore trial by Judge Noonan. We agree with Judge Noonan’s

reasoning and see no occasion to elaborate upon his care-

fully prepared opinion. Grey v. American Airlines, 95 F.

Supp. 756 (S. D. N. Y. 1950).

At the trial the principal issue was whether or not plain-

tiffs had adduced evidence sufficient to support a finding

that the disaster was due to ‘‘wilful misconduct’’ on the

part of defendant’s employees, or any of them. The jury

found that it was; but the trial judge, after taking under

advisement defendant’s motion to set aside the verdicts and

direct judgment in favor of plaintiffs for $16,600, or the

limited amount of $8300 on account of the death of each

decedent, reviewed the evidence in some detail and, in the

order now appealed from, granted the motion.

In limine plaintiffs contend that the trial judge lacked

power to entertain the motion, at least with reference to

so much of plaintiffs’ claim as arises out of the death of

the mother, Sophie Goldberg, under F. R. C. P. 50(b), be-

cause no motion for a directed verdict was made by de-

fendant ‘‘at the close of all the evidence”’ to the effect that

the jury should find in plaintiffs’ favor for the sum of $8300

‘‘arising out of the death of Sophie Goldberg.’’ We had

supposed the winds of time had long since carried into

oblivion such flimsy excuses for avoiding a consideration

1. Presidential Proclamation of October 29, 1934, 49 Stat. Pt. 2 at

p. 3000 et seq.

27

of the merits of a case. From the outset defendant urged

that there could be no recovery in excess of $8300 for the

death of either decedent; motions for directed verdicts with

respect to the claims arising out of each of the two deaths

were made at the close of plaintiffs’ case; the contention

was again made in extenso at the close of all the evidence.

it was mere inadvertence that no reference was again made

specifically to Sophie Goldberg. Accordingly, the triaj

judge had ample authority under Rule 50(b) to set aside

or disregard the verdicts and dispose of the case with final-

ity, subject to appellate review.

The plane left La Guardia Airport at 10:30 P. M.: took

off from Washington, D. C., for Dallas at 12:54 A. M., and,

when in the vicinity of Nashville, Tennessee, the outboard

engine on the port wing, known as the #1 engine, com-

menced to backfire, as a result of which it was feathered and

shut off. Without further incident Dallas was sighted and

the plane was cleared to land on runway 36. We are con-

cerned with what oceurred between the time the plane

crossed the boundary of the airport at an altitude of 200

feet, until it crashed on top of the hangar of the Dallas

Aviation School on the edge of the airport opposite the

direction tower. The crew, consisting of the Captain, the

First Officer and the Flight Engineer, survived; and their

testimony gives us a certain amount of data, together with

some flat contradictions and a mass of conflicting possible

inferences. Before giving a brief resume of the evidence,

it will be well to set forth the applicable law,

The scheme of the Warsaw Convention is pretty plain

on its face. Chapter ITI is the one which concerns us here,

Article 17 imposes an absolute liability upon the carrier

for all personal injuries, regardless of fault, “‘if the acci-

cent which caused the damage so sustained took place on

board the aireraft.’’ But this liability is exeused by Article

20(1), if ‘‘the carrier proves’’ that it “has taken all neces-

sary measures to avoid the damage or that it was impos-

28

sible’’ for it to take them. As to this it is plain that the

burden of proof is upon the carrier. And, in passing, it

may be noted that in most if not all serious accidents,

whether or not members of the crew survive, the difficulties

in avoiding this presumptive liability would seem to be

almost if not quite insurmountable.

Against this background we come to Article 25, which

provides that the carrier shal] not be entitled to avail itself

‘tof the provisions of this Convention which exclude or

limit’’ its liability, if the damage is caused by its ‘wilful

misconduct.’’ The exclusion refers to Article 20(1), and

the limitation to Article 22(1), which provides that ‘‘the

liability of the carrier to each passenger shall be limited’’

to $8300. Upon whom is the burden of proving wilful mis-

conduct?

The trial court here instructed the jury that the burden

of proving wilful misconduct rested upon plaintiffs, and

plaintiffs acquiesced in this, virtually conceding that it

was not incumbent upon defendant to sustain the onus of

proving a negative. As will shortly appear, the real cause

of the crash still remains in doubt, and we feel that the

interest of justice requires that we decide this question,

even though the parties have apparently taken the answer

for granted.

We hold that the trial judge ruled correctly when he

charged the jury that plaintiffs could recover no more than

$8300 on account of the death of each decedent, unless plain-

tiffs proved by a fair preponderance of the credible evi-

dence that there was wilful misconduct on the part of

defendant’s employees, or any of them, which was a ‘‘sub-

stantial contributing factor’’ to the accident. The specific

language of Article 20(1), above quoted, and the absence

of corresponding words in Article 25 would seem to make

admissible no other interpretation of the Convention. But

perhaps of greater significance is the general purpose of

protecting international air carriers from the burden of

29

excessive claims connected with the loss of aircraft under

circumstances which make it impossible, or virtually so, to

determine the mechanical or human shortcomings which

caused the disaster, because of the death of all on board

and the destruction of the plane. We find implicit in the

terms of the Convention an intention to relieve the car-

riers of this burden of proof, whilst at the same time giv-

ing the injured parties the opportunity to prove wilful

misconduct, if they can.

There is no dispute as to what constitutes wilful mis-

conduct. The instructions required proof of ‘‘a conscious

intent to do or omit doing an act from which harm results

to another, or an intentional omission of a manifest duty.

There must be a realization of the probability of injury

from the conduct, and a disregard of: the probable conse-

quences of such conduct.’’ This was in accordance with

precedent. [American Airlines v. Ulen, 186 F. 2d 529 (D.

C. Cir. 1949); Pekelis v. T. W. A., 187 F. 2d 122 (2 Cir.

1951) ; Goepp v. American Overseas Airlines, 281 App. Div.

105 (1952), aff’d 305 N. Y. 830, certiorari denied, 346 U. S.

474.]

Moreover, as this is a jury case, plaintiffs are entitled

to have the evidence viewed in the light most favorable to

plaintiffs. All questions of credibility were for the jury.

It was within their province to pick and choose, to accept

a part or the whole of the testimony of any particular wit-

ness, and to reject the rest. Where conflicting inferences

were rationally admissible, it was a function of the jury

to take those which they considered most consistent with

the general pattern of the proofs. And this congeries is

summed up in the general verdicts. The trial judge had a

right to reject the finding of wilful misconduct only if, on

no possible view of the evidence, could reasonable men

reach that conclusion. Binder y. Commercial Travelers,

165 F. 2d 896 (2 Cir. 1948); 3 Moore, Federal Practice

$50.01 (1938).

30

We now return to the evidence of the events which

crowded into the brief interval of time between the crossing

of the boundary of the airport at a height of 200 feet and

the crash.

The Flight Engineer suddenly reported that the fuel flow

gauge on engine #4, the outboard starboard engine, read

zero. The Captain at once ordered the fuel booster pump

applied, and the Captain testified that he felt that engine

*‘surge,’’ which caused the left wing to dip 20° and the

plane to swerve to the left and out of line with the runway.

Reduction of power on the #3 and #4 engines and increase

of power on #2 apparently brought the plane level and

she was about 30 or 40 feet above the ground. The Captain

says he ordered the landing gear retracted and the flaps

raised, with full take-off power on the three operating en-

gines. The First Officer says he did not hear any order but

knew from the actions of the Captain that he was attempt-

ing to pull up and make another try for the field. That the

plane gained altitude is apparent from the fact of where

she hit on top of the hanger of the Dallas Aviation School.

But in the interval, without any order from the Captain,

the First Officer feathered the #4 engine, and the Captain

claims that this was what caused the crash. The First

Officer says the instruments indicated that +4 was ‘‘wind-

milling,’’ that the unfeathered propeller without power be-

hind it would operate as a drag, and that he left the flaps

as they were because to level them off would, in his opinion,

have resulted in an immediate loss of altitude. There was

testimony that there was still power in #4 and that the

ievelling of the flaps would have helped the plane to rise,

although this seems improbable in view of her position so

close to the ground. In any event, the plane stalled and

fell.

If defendant had the burden of proving that there was no

wilful misconduct on the part of any member of the crew,

we think a jury would have been warranted in finding on

31

this record that the burden had not been sustained. There

are too many gaps and imponderables, to say nothing of

the conflicts and inconsistencies, some of which we have

uot thonght it necessary to collate.

But we cannot discover anything in the case to warrant

a finding that there was wilful misconduct. It is said that

the Captain was in command and that he was the only one

authorized by Civil Air Regulations 61.301, 61.310, to act

in an emergency. But we find nothing in the Reguletions to

justify this conclusion. The plane was in extremis; what-

ever the First Officer did or failed to do was done to save

the plane and the lives of all on board including his own.

True it is that the jury were entitled to disregard the

testimony of the First Officer, or any part of it, and to

accept the testimony of the Captain in its entirety. Bat

even so the record is still devoid of any evidence of wilful

misconduct.

Much is also said on plaintiffs’ behalf of defective in-

struments and previous backfiring by the engine which was

feathered when near Nashville, but it is abundantly plain

to us that each and every member of the crew thought the

plane was airworthy when they left Washington, D. C. for

Dallas; and the evidence referred to is of trivial conse-

quence.

Other alleged errors seems to vs not to warrant discus-

sion.

Affirmed.

32

Opinion of United States District Court, Southern District

of New York

(SAME TITLE]

hy

Vw

APPEARANCES:

Manes, Sturm, Donovan & Laurer, Esgs., Attorneys for

Plaintiffs, 70 Pine Street, New York 5, N. Y.

Joun J. Donovan, JR., Ese,

ArrHur M. Laurer, Esq.,

Of Counsel.

Haicut, Demine, Garpner, Poor & Havens, Esgs., Attor-

neys for Defendant, 80 Broad St., New York 4, N. Y.

Wiis J. Junxermay, Esq.,

James B, McQuiiuan, Esq,

Of Counsel.

Conger, D. J.:

Defendant moves for the following relief:

(1) to set aside the verdicts of the jury and for judg-

ment dismissing the complaint in amounts in excess of

$8,300 for each passenger; and in the alternative.

(2) a new trial upon the grounds that the verdicts are

contrary to the evidence and law and are excessive.

The jury returned verdicts as follows:

For the death of Harry M. Goldberg:

Howard M. Grey........ $50,000

Doris 8. Grey.......... 30,000.

For the death of Sophie Goldberg:

Howard M. Grey........ $ 5,000

Doris S. Grey.......... $ 5,000.

y

33

The evidence disclosed that the decedents, father and

mother of the infant plaintiffs, were killed in the crash of

defendant’s Douglas DC-6 airplane, upon which they were

passengers, at Love Field, Texas, on November 29, 1949.

The principal issue at the trial was whether the deaths

were caused by wilful misconduct upon the part of defend-

ant’s agents.* The jury’s verdicts reflect an affirmative

resolution of this issue.

(1) Defendant now contends, as it did at the end of

plaintiffs’ case and at the close of the evidence, that, ac-

cording every reasonable inference to the evidence, it was

insufficient to sustain a finding of wilful misconduct.

There is a dispute between the parties concerning the

plaintiffs’ obligation to “‘specify’’ the acts of wilful mis-

conduct.** Certainly, there is no specification in the com-

plaint unless the general allegations of paragraph 17 may

be so regarded. Plaintiffs’ counsel did specify certain acts

*Article 25 of the Warsaw Conventi

seq.) provides as follows:

on (49 Stat. Pt. 2, pp. 3000 et

“(1) The carrier shall not be entitled to avail himself of the

provisions of this convention which exclude or limit his liabil-

ity, if the damage is caused by his wilful misconduct or by such

default on his part as, in accordance with the law of the court to

which the case is submitted, is considered to be equivalent to

wilful misconduct.

“(2) Similarly the carrier shall not be entitled to avail him-

self of the said provisions, if the damage is caused under the

same circumstances by any agent of the carrier acting within the

scope of his employment.”

Unless the plaintiffs prove wilful misconduct, then recovery is limited

to $8,300 per death in accordance with Article 22 of the Convention.

**In Froman v. Pan American Airways, Supreme Court, N. Y. County,

aff'd without opinion by the Appellate Division, 1st Dept. (N. Y. L, J.

Nov. 4, 1954), the Trial Judge charged the jury that the plaintiffs are

required to specify the acts of wilful misconduct.

34

in his opening statement. Whether or not this practice

discloses sufficient specification at this point, I am not pre-

pared to say. In his summation, plaintiffs’ counsel again

alluded to acts of wilful misconduct and some time before

the end of the trial, plaintiffs’ attorney gave me a paper

which contained ‘‘Plaintiffs’ specifications of wilful mis-

conduct on the part of the defendant.’’ My recollection is

that this paper was given me by plaintiffs’ attorney the

evening before the summations were to start. In his open-

ing and summation plaintiffs’ attorney did not refer spe-

cifically to this list of specifications but my recollection is

that he did refer particularly in his summation to acts

and conduct of defendant’s employees which he character-

ized as acts of wilful misconduct.

Defendant’s attorney stated in the argument on this

motion that this paper was handed to him just as he got up

to make his summation; that he never read it until the case

was over.

It seemed to me that this list summarized in effect those

acts of wilful misconduct which plaintiffs’ counsel had re-

ferred to in his opening and summation. This list was not

read to the jury nor incorporated in the charge. At the

end of the charge the attorney for defendant excepted to

my failure to charge defendant’s request to charge No. 8,

to the effect that plaintiffs be required to specify what act

or acts they claimed constituted wilful misconduct.

I refuse to so charge because I felt that after giving to

the jury instructions as to what constituted wilful miscon-

duct as applied to this case, it was its duty and obligation

to view the evidence and ascertain under the yardstick of

the law I had given them, whether any act or acts of wilful

misconduct had been proven by plaintiffs.

The list submitted follows:

‘a. That defendant’s First Officer Robert E.

Lewis, in violation of all laws, rules and regulations,

35

with knowledge that No. 1 engine was feathered, de-

liberately and with intent feathered #4 engine while

the Captain in command of the plane was then and

there in control of the said aircraft and in the pro-

cess of maneuvering the same for the purpose of

gaining altitude or applying power to the said en-

gines for the purpose of effecting a safe and proper

landing under the circumstances by going around

again for a new approach and landing.

b. That the said defendant by its First Officer

Lewis, with full knowledge of the probable conse-

quences of such act, omitted to comply with the

orders of the Captain in command of the said flight,

to raise the flaps from fully extended position at

the time the gears were retracted for the purpose of

a ‘go around’ for a new landing.

e. That Captain Sperry on preceding flight #48

of Nov. 28, 1949 omitted to report the backfiring

and trailing of smoke from #1 engine while over

Advance, Missouri at an altitude of 17,000 feet with

knowledge of the fact that the defect of such en-

gine if not corrected would probably result in in-

jury or damage to passengers.

d. That the defendant by its agents, servants

and employees committed an act of wilfull miscon-

duct by continuing said airplane in service trans-

porting passengers, with full knowledge of the previ-

vous defective condition of engines #1 and #4

known to defendant’s mechanics, inspectors, pilots

and agents to exist for a considerable period of

time despite previous corrective action taken.

e. That the defendant committed an act of wil-

full misconduct in permitting flight 157 to take off

from LaGuardia Field at the time and place of de-

36

parture with knowledge of the defects in engines

#1 and #4 without requiring check flight test.

f. That the defendant, its servants, agents and

employees permitted the said plane to continue in

service transporting passengers without making nec-

essary repairs or taking necessary action because

of inability to obtain new parts or because they did

not have time or something of that nature.

g. That with knowledge of the existing condition

of the said airplane on November 28-29, 1949, the

defendant’s servants, agents or employees commit-

ted wilfull misconduct in permitting said airplane

which was not airworthy to continue in service carry-

ing passengers and cargo close to its maximum load

limit without going immediately to the nearest air-

port and landing and obtaining new equipment.”’

I charged the jury as follows:

‘In order to determine whether there was wilful

misconduct, the first thing that must be understood

is what is meant by wilful misconduct. I charge

you that wilful ordinarily means intentional, that

the act that was done was what the person doing

it meant to do, but this phrase, wilful misconduct,

means something more than that. It means that in

addition to doing the act in question, the actor

must have intended to do that act, or with respect

to that act he must have launched on such a line

of conduct with knowledge of what the consequences

probably would be, and have gone ahead recklessly,

despite his knowledge of those consequences. In

order that the act may be characterized as wilful,

there must be on the part of the person or persons

sought to be charged, a conscious intent to do or

omit doing the act from which harm results to an-

37

other, or an intentional omission of a manifest duty.

There must be a realization of the probability of

injury from the conduct, and a disregard of the

probable consequences of such conduct.

Now, to put it with the same ultimate definition,

but in other werds, I should give you another defi-

nition which does not in any way take away from

what I have just now said, but I think perhaps ex-

plains it a little more fully. I shall explain to you

again what wilful misconduct in this ease is. It does

not mean that the defendant or any of its employ-

ees had a deliberate intention to kill the decedents

or to wreck this airplane. Wilful misconduct is the

intentional performance of an act with knowledge

that the performance of that act will probably re-

sult in injury or damage, or it may be the inten-

tional performance of an act in such a manner as

to imply reckless disregard of the probable conse-

quences of the performance of the act. Likewise,

the intentional omission of some acts with knowl-

edge that such omission will probably result in dam-

age or injury, or the intentional omission of some

acts in a manner from which it could be implied

reckless disregard of the probable consequences of

the omission, would also be wilful misconduct.

Of course, if you determine that there was no

such wilful misconduct, then you must stop right

there as to that and turn to the other facet of the

case, the first facet of this case, which contains a

limitation of liability. That is Section 20,

If, however, you find that the defendant or any of

its employees committed one or more acts of wil-

ful misconduct, then you must go on and consider

whether or not such wilful misconduct as you have

found was the proximate or legal cause of the death

of these decedents.’’

38

See Goepp v. American Overseas Airlines, 281 App. Div.

105 (1st Dept.), 152, aff’d without opinion, 305 N. Y. 830;

cert. den. 346 U. S. 874; Pekelis v. Transcontinental &

Western Air, Inc., 187 F. (2d) 122 (C. A. 2, 1951); ef.

American Airlines v. Ulen, 186 F. (2d) 529 (C. A. D.C.

1949).

There is no doubt that specification (a) is true insofar

as the related facts are concerned and without the legal

conclusions. Flight Officer Lewis admitted that Captain

Claude was in control of the plane on the approach to

Love Field: that the No. 1 engine had been feathered pre-

viously. He was aware of Civil Air Regulations which

specified that the captain was in command of the flight*

and was authorized to make decisions in an emergency.**

Nevertheless, he took it upon himself to feather the No. 4

engine at a time when he knew Captain Claude was fol-

lowing emergency procedure for a go-around. Lewis tes-

tified on direct as follows:

**Q. What happened? A. Approximately a half

mile from the south boundary of the field before

he had got lined up, Mr. Forbes advised him that

No. 4 engine was failing.

Q. No. + was failing? Or did he mention some-

thing about fuel flowage? A. I don’t know to this

day whether he said No. 4 engine is going out, quit-

ting, failing, but he implied to both of us that No. 4

engine was having difficulty.

Q. Whatever he said, he gave you the immediate

impression that No. 4 engine had failed? A. That

is right.

Q. What happened after that? A. Captain Claude

asked—he didn’t ask—he merely said, ‘Try the

booster pump to No. 4 engine.’

*Reg. § 61.301, 14 CFR 725.

**Reg. § 61.310, 14 CFR 727.

39

Q. Try the booster pump to No. 4 engine? A.

Yes.

Q. Who did apply the booster pump to No. 4

engine? A. Mr. Forbes.

Q. Did you see him do that? A. Yes.

Q. After he did that— A. Now, I would like

to—I didn’t see him actually apply the pump; I

saw his hand go up in the air toward the panel.

Whether the pump ever turned on I don’t know.

Q. Now, what was the next thing that you ob-

served? A. I observed that the airplane was rapidly

losing air speed and drifting to the left of the run-

way.

The Court: What was that?

The Witness: I observed that the airplane was

rapidly losing air speed and drifting further to

the left of the runway.

Q. What was the speed of the plane at that time

when you observed the plane rapidly losing alti-

tude, after you saw Mr. Forbes reach out for the

booster pump? A. Approximately 110 miles an hour.

Q. What is the stalling speed of that plane? A.

I can’t answer that question unless—an airplane

has different stalling speeds: Clean stall, partial

gear extension stall, full flaps stall.

Q. Let me ask you this: With full flaps, with

the landing gear down and with the flaps fully ex-

tended, as that plane was in, with the load it had

under those conditions, approximately what was

the stalling speed? A. I would’ have to have a chart

to tell you accurately. Approximaiely 90 miles an

hour.

Q. Now, you say you saw the plane losing alti-

tude and drifting more to the left of that north and

south runway? A. Yes.

40

Q. How far was the plane at that time from the

edge of that runway or the boundary of the field

when you saw this happen? Were you inside the

boundary of the field by that time? A. It was all

simultaneous, traveling along. At approximately

110 to 120 miles an hour, a quarter of a mile from

the field, you are actually over the field in a very

short period of time.

Q. Just a matter of seconds? A. Yes, it is.

Q. So you can’t say exactly where it was at that

time with respect to that runway? A. Progessively

approaching the end of the runway, drifting to the

left of it, and continuing to drift to the left of it.

Q. With that situation as it was, what was the

next thing you observed happen? A. The airplane

dropped the left wing.

Q. In other words, the left wing came down?

A. Yes.

Q. What did that indicate to you as a pilot? A.

It indicated to me that the air plane was in an

abnormal attitude to land out of.

Mr. Laufer: What was that last word?

The Witness: The airplane had assumed an

attitude, that it would be almost impossible to

effect a landing out of on the runway.

Q. What if anything did the captain do or say

at that time? A. He immediately hollered for full

power.

Q. For full power? And who gave full power?

A. He applied it partially and I pushed it on by

myself.

Q. In other words, you pushed the throttle for-

ward? A. Yes.

Q. Did the left wing come up or did it start to

come up, or what happened with respect to the left

41

wing? A. Well, at the time we were applying the

power the aircraft had started to assume a normal

attitude, with the full application of the right ail-

eron control.

Q. Power didn’t make any difference at that

point? A. No,

Q. Did it come up to almost level position? A.

Yes.

Q. That was while the plane was to the left of

this runway? A. It was.

Q. By the time it returned level how far was the

plane from the edge of the runway? A. You mean

west of the runway?

Q. Hither way. A. West of the runway. I would

say we were probably two to three hundred feet.

Q. South of the runway? A. We were already

inside the boundary of the field.

Q. Had you reached a point that was beyond the

end of the runway as far as north and south was

concerned? A. We had.

Q. So, if this were the runway, by this time you

were up to a point about here (indicating)? A.

Yes,

Q. By the time it became level? A. Yes.

Q. When you got to that point what did you see,

what did you observe and what happened after that?

A. Applied full power and I retracted the gear.

Q. Did the captain give an order to retract the

gear? A. I didn’t hear him give it, but it has been

testified

Q. I just want to know whether he gave it——

Mr. Laufer: Let him finish.

The Witness: I didn’t hear him actually give

the command to retract the gear.

Mr. Laufer: If your Honor please, he was say-

ing something else when Mr. Junkerman inter-

rupted him.

42

Q. Please say whatever you were saying when

Mr. Laufer says I interrupted? A. I was going to

say that it has been testified by both Mr. Forbes

and Captain Claude that the order was given. I

say I didn’t hear it.

Q. Then why did you retract the gear? A. It

was normal procedure in an emergency, a go-around.

Q. Did you think the captain was following emer-

gency procedure for another go-around? A. Yes.

Q. Is that the reason you pulled up the gear?

A. Yes, it was.

Q. You pulled up the gear. Did you make any

attempt to pull up the flaps? A. No, sir.

Q. Why not? A. The air speed of the airplane

was too low to retract.

Q. If you had retracted the flaps at that time

what would have happened? A. The airplane would

have immediately stalled where it was.

Q. How high were you above the level of the

ground at that time? A. Approximately 20 feet.

Q. So the application or retracting the flaps,

would have a tendency to immediately settle the

plane, would it not? A. Yes, at that speed.

Q. Well, now, after yor pulled the gear up, re-

tracted the gear, what did you observe with respect

to the No. 2, 3 and 4 engines? A. I observed that

No. 4 engine had no fuel pressure, no fuel flow,

manifold pressure was dropping, the tachometer

indicated the engine was turning 1300 revolutions

a minute.

Q. Did you look out to see the engine? A. No.

Q. You couldn’t see it at that time, I suppose

because of darkness? A. There was no need to

look at it.

Q. Anyway, you didn’t look? A. No.

Q. Were you able to see whether or not the pro-

peller was windmilling?

43

Mr. Laufer: He just said he didn’t look at it.

Mr. Junkerman: I am asking about the pro-

peller now.

Mr. Laufer: Well, the propeller is on the en-

gine.

Mr. Junkerman: I know that.

The Court: Could you see the propeller?

The Witness: I could have seen it had I looked

at it.

The Court: You didn’t look?

The Witness: No. My tachometer indicated

that the engine was turning——

Mr. Laufer: I move to sttike it out. The last

part of the answer is not responsive.

Q. What did you look at to determine whether

or not that No. 4 engine was turning up? A. The

tachometer.

-Q. What did you observe with respect to the

tachometer? A. The engine was turning 1300 rpm.

Q. What does that mean to you as a pilot? A.

To me, that the engine was windmilling.

Q. What effect would windmilling have upon the

forward motion of the plane? A. It created drag.

It would make it impossible, there would be so

much drag to the airplane that it would be impos-

sible to fly out of the field, or even continue level

flight, for that matter.

Q. What did you do? A. I feathered the No. 4

engine.

Q. Feathering, then, would -have the effect of

minimizing the drag from that engine, would it?

A. It would.

Q. After you did that what was the next thing

you did or said? A. The airplane was already in

a climbing left stall. I picked up the microphone

and told the tower we were losing the airplane

44

and to get emergency equipment to the scene, or

words to that effect.

Q. And right after that the accident happened?

A. I also advised them we had just feathered No. 4

engine.

Q. And how soon a time after you said that did

the accident happen? A. My transmission was cut

off by the impact.’’

He testified on cross as follows:

**Q. Would the gear be retracted on a go-around

to relieve drag? A. Yes, sir.

Q. And feathering No. 4 you say also relieves

the drag? A. Yes, sir.

Q. It also stops the power, doesn’t it? A. No,

sir.

Q. There was no power being developed in your

opinion? A. In my opinion there was no power

being developed in No. 4 engine at the time it was

feathered.

Q. Because you looked at the tachometer? A. I

looked at the No. 4 engine——

Q. You said you looked at the tachometer. I think

you said it was turning 1300 rpm? A. Yes, sir.

Q. Well, that is developing power, isn’t it? A.

No, sir.

Q. Well, idling it would be about 300 rpm, would

it not? A. That is a different set of circumstances.

Q. Were you in court when Captain Sperry tes-

tified as to the speed at which the prop idled? A.

I was.

Q. Did you recall him saying it idles at 600 to

800 rpm? A. I do.

Q. That anything above idling would be some

thrust or power?

45

Mr. Junkerman: If your Honor please, I object

to that. Captain Sperry was talking about on

the ground and not in the air.

Q. Well, this is 20 feet off the ground. A. Sir,

that is in flight.

Q. And you say that 1300 rpm shown on the

tachometer 20 feet above the ground would be de-

veloping no power? A. No, sir. It is an absolute

fuilure.

Q. How about 1800 rpm? A. It would depend on

the manifold pressure being applied to the engine.

Q. Well, I assume at a moment like that you

would be applying full maximum manifold pres-

sure to get maximum power? A. Sir, the engine

was not running, regardless of the position of the

throttle; you get no manifold pressure,

Q. You only knew that because you looked at the

instrument? A. That is right.

Q. Suppose these instruments were defective?

A. If we had five instruments that had simultaneous

failure, which would be very improbable.

Q. You looked at five instruments? A. Yes.

Q. And all five showed about 1300 rpm? A.

That the engine was inoperative.”

In his deposition, Captain Clande testified as follows:

“Q. Was the fuel booster pump put to number

four engine? A. It was.

Q. And which member of the crew performed

that test? A. The Engineer. °

Q. And what occurred after that? A. Number

four engine surged.

Q. Now, at what point, with respect to Love Field,

and using the diagram, (Plaintiffs’ Exhibit 11 on

the trial) would you say that number four engine

46

surged? A. Just after crossing the end of the run-

way.

* * * * *

Q. Was it at that point you say the number four

engine surged? A. Yes.

Mr. Osnato: Can we mark it with an ‘F”’ ex-

actly where the Captain said?

Q. Now, you have put in ‘F’ alongside the letters

36, which indicates the end, the south end of the

runway you were attempting to land on? A. Yes.

Q. Now, you say it was at this point number four

engine surged, is that correct? A. Yes.

Q. Will you state the manner in which you de-

termined it surged? A. The aircraft turned to the

left, the left wing dropping, and by pressure on the

controls.

Q. Now, what controls did you feel the pressure

on? A. The right rudder.

Q. The other instrument? A. The aileron.

Q. Which aileron? A. Went into a left bank,

why the ailerons are hooked together and you turn

the wheel to the right and bring it back up to level,

you feel it on both the ailerons and the rudder.

Q. So that it is your testimony that you felt the

number four engine surge, after the fuel booster

pump was put to the number four engine, by the

feel of the controls, is that correct? A. Correct.

Q. In other words, you have marked the letter

‘C’ with an ‘X’ mark on the line at the point at

which the left wing came up? A. That is correct.

Q. Is it at this point that you ordered powei to

all three engines or applied power to all three en-

gines? <A. It was.

47

Q. On that, if I understand you correetly, you

retarded the power on three and four and you ad-

vareed the power on number two, thereby bringing

the left wing up? A. Correct.

Q. And that oceurred at the point marked letter

‘G’? A. Correct.

Q. Now, what was the altitude of the plane at that

point, with respect to the field level? A. I would say

thirty to forty feet.

Q. Above the field? A. Above the field, yes, sir.

Q. And what was the attitude of the airplane? A.

Horizontally level and climbing.

Q. Now, up to what point did the plane continue to

climb? A. To a point just after crossing runway

number 7.

Q. Now, will you indicate on (Plaintiffs’ Exhibit

11), the point you have just described, by letter ‘H’?

A. Correct.

Q. Now between the points shc wn ‘@’ and ‘H’ you

state that the plane was climbing, is that correct? A.

Correct.

Q. Now what occurred at the time the plane

reached the point marked ‘H’? A. At point ‘H’ she

commenced to burble, with an indication of a stall.

Q. Burble? A. Well, buffeting, you could call it.

Q. And what happened? A. Well, that is an in-

dication of a complete stall, and I knew she was gone.

Q. Now, from a point marked ‘H’ to the point

which there is a cross-mark on tne line just below

the word ‘field’, on (Plaintiffs’ Exhibit 11) could you

state what occurred? A. She, the airplane, had

stalled then, was settling and going down, and I

knew we would never clear that hangar, and I ealicd

to the crew that she was gone.

Q. Now, you made reference to a hangar, is there

a hangar at the field? A. There is a line of old

48

wooden hangars across here, I think these represent

them. (Indicating. )

Q. Was there a hangar there on the morning of

November 29, 19497 A. Yes.

Q. Is that the Dallas Aviation Hangar? A. I think

it was, yes.

Q. And was that the hangar—with what did the

airplane come in contact for the first time after the

stall? A. The left wing tip hit the north end of the

hangar and I guess you could call it the northeast

corner of the hangar.

Q. And now at the time that the plane was at the

position shown by your ink mark ‘H’, made this

morning, can you state what the altitude of the plane

was with respect to the hangar?

Mr. Osnato: The altitude with respect to the

hangar?

Mr. Laufer: That is right.

A. It was at the time the buffeting occurred, the

airplane was above the elevation of the hangar roof,

and up to that point I was fully convinced we would

clear the hangar and go around okay, and she stalled

out and she settled.

Q. Now, at that time, up to that time had you

given any order to feather number four prop? A.

I had not.

Q. Did anybody inform you that number four

prop was feathered, or was to be feathered? A. No.

Q. When for the first time did you learn that num-

ber four prop had been feathered? A. The C. A. B.

hearing in Dallas, about the 12ih or 13th of Decem-

ber.’’

Flight Engineer Forbes was also unaware that Lewis

had feathered the number 4 engine.

49

In order to find wilful misconduct the jury was required

to believe that (i) the competent producing cause of the

accident was Lewis’ act of feathering the number 4 en-

gine and (ii) Lewis’ act was unjustified. Might the jury

have so fcund from the evidence?

Captain Claude stated that in his opinion Lewis’ act

caused the crash. This presupposes that the number 4 en-

gine was still developing power at the time Lewis feathered

it. Captain Claude said that it was, that he could feel it

in the controls.

Lewis testified that his act was based upon the instru-

ments which indicated the No. 4 engine was windmilling.

As between Claude and Lewis, the jury could have believed

Claude that the engine was developing power and not wind-

milling. Of course, resolving this issne in favor of Claude

does not justify a finding of wilful misconduct.

There would be required, in addition, a rejection of

Lewis’ explanation of his action. But as far as I can

gather, there is no evidence, nor did the plaintiffs ever con-

tend, that the instruments upon which Lewis based his ac-

tions did not in fact indicate windmilling. To the contrary,

plaintiffs attempted to show poor maintenance of the plane

as reflected in, among other things, its instrumer.te. At

page 12 of plaintiffs’ memorandum in oppositiea to this

motion appears the following:

‘*It is important to remember that this plane had

a very bad maintenance history; that it showed regu-

lar trouble with gauges and instruments besides

trouble with No. 1 and No. 4 engines which defendant

claims was always corrected. Captain Claude testi-

fied that No. 4 engine never went out and that when

the Flight Engineer called to his attention that ‘the

fuel pressure on number 4 engine had gone to zero’

he ordered the booster pump to that engine and the

50

engine surged or over-sped. That meant that the

engine was working but the gauge was wrong. The

record shows that even on this same flight the cowl

flap instrument was not accurate, the fuel flow tach-

ometer fluctuated and that the air temperature

gauge on No. 4 was inoperative for some time be-

fore!’’

Therefore, if the jury based its verdict upon Lewis’

violation of the Civil Air Regulations in pre-empting the

Captain, the evidence was insufficient to find wilful mis-

conduct. It may not be said that Lewis’ feathering of the

No. 4 engine—a violation though it is—was performed

knowing that it would probably result in injury or was

performed in such manner as to imply a reckless disregard

of its consequences. From the undisputed evidence he used

his judgment in an attempt to save the plane and this is

not, under the circumstances, wilful misconduct.

Specification (b) is true in part as far as the facts are

concerned, and not considering the legal conclusion.

Prior to feathering the No. 4 engine Lewis retracted the

landing gear but did not raise the flaps. Captain Claude

said that he ordered the gear and flaps up—an order heard

by the Flight Engineer—but Lewis said he did not hear it.

His testimony, again:

‘*Q. When you got to that point what did you see,

what did you cbserve and what happened after that?

A. Applied full power and I retracted the gear.

Q. Did the captain give an order to retract the

gear? A.I didn’t hear him give it, but it has been

testified—

Q. I just want to know whether he gave it—

Mr. Laufer: Let him finish.

The Witness: I didn’t hear him actually give

the command to retract the gear.

51

Mr. Laufer: If your Honor please, he was say-

ing something else when Mr. Junkerman inter-

rupted him.

Q. Please say whatever you were saying when Mr.

Laufer says I interrupted? A. I was going to say

that it has been testified by both Mr. Forbes and

Captain Claude that the order was given. I say I

didn’t hear it.

Q. Then why did you retract the gear? A. It was

normal procedure in an emergency, a go-around.

Q. Did you think the captain was following emer-

gency procedure for another go-around? A. Yes.

Q. Is that the reason you pulled up the gear? A.

Yes, it was.

Q. You pulled up the gear. Did you make any

attempt to pull up the flaps? A. No, sir.

Q. Why not? A. The air speed of the airplane

was too low to retract.

Q. If you had retracted the flaps at that time what

would have happened? A. The airplane would have

immediately stalled where it was.

Q. How high were you above the level of the

ground at that time? A. Approximately 20 feet.

Q. So the application or retracting the flaps would

have a tendency to immediately settle the plane,

would it not? A. Yes, at that speed.’’

It may be said of Lewis in this instance that he was in-

attentive, hard of hearing or substituting his judgment for

the Captain’s. The jury could have thought the latter. But

if it did, what evidence is there aside from the crash that

his judgment was poor? There is none. As indicated here-

tofore, the Captain attributed the crash to the feathering

and no one on plaintiffs’ side detracted in the slightest

from Lewis’ opinion that raising the flaps under the cir-

cumstances would have caused an immediate settling of the

52

plane. The jury may have chosen to disregard Lewis’

opinion but if it did there was no evidence upon which to

base a contrary judgment. ;

Therefore, to the extent that the expression ‘‘with full

knowledge of the probable consequences of such act’’ in

specification (b) implies a crash, there was no proof to

sustain it.

The remaining specifications are more or less unwar-

ranted conclusions of counsel or are general statements,

some of which were not proven. There is no basis upon

which the jury might find wilful misconduct from any one

or combination of these specifications. On the contrary,

the evidence adduced was consistent only with airworth-

iness of the plane at the time it departed on its ill-fated

flight.

Assuming that the plane crash was caused by the act

of co-Pilot Lewis in cutting out the No. 4 engine by feather-

ing and by a failure to retract the flaps as directed by Cap-

tain Claude, I am convinced that plaintiffs have not made

out a case on the theory that the accident was caused by the

wilful misconduct of defendant and its employees. In com-

ing to this conclusion I am not passing on any disputed

version of any of the witnesses; I am not passing on the

credibility of the story told by one witness as against that

told by another. I am viewing the evidence with all infer-

ences favorable to plaintiffs and considering all the evi-

dence most favorable to plaintiffs’ theory and claim in this

respect. In so doing, I am strongly convinced that from all

such evidence the jury was not justified in bringing in a

verdict which by its very terms was a finding that this acci-

dent, which resulted in the death of Mr. and Mrs. Grey,

was caused and brought about by the wilful misconduct of

defendant, its agents and servants, as defined by me in my

charge to the jury, to which no exception was taken.

53

The motion to set aside the verdict of the jury is granted

and the plaintiffs shall have judgment for $8,300 for the

death of Harry M. Goldberg and $8,300 for the death of

Sophie Goldberg.

I will now take up defendant’s motion for a new trial on

the grounds that the verdicts are contrary to the evidence

and the law and are excessive.

While this motion is made in the alternative, I believe

I have to pass on it, notwithstanding that I have decided

the first motion in favor of defendants. Montgomery Ward

and Co. v. Duncan, 311 U. 8. 243.

In passing on the second part of the motion I am only

concerned with the amount of the verdicts. As I stated be-

fore, the verdicts were as follows:

For the death of Harry M. Goldberg:

Howard M. Grey

Doris S. Grey

For the death of Sophie Goldberg:

Howard M. Grey

Doris 8S. Grey

I charged the jury that in awarding damages they should

take into consideration the following:

1. Pecuniary loss of contributions of each parent for

support, education and so forth during minority.

2. The value of the services which each parent might

and would have rendered in training and educating the

children during minority.

3. The loss of reasonable contributions each child might

receive after majority from the parent.

4. The loss of prospective accumulations of the parent

during his or her lifetime.

At the time of his death Harry M. Goldberg was 47 years

of age and had a life expectancy of about 23 years. His

wife Sophie was 42 years of age and had a life expectancy

of about 26 years. At the time of the deaths of their father

and mother, Howard Grey was 17 years and 3 months of

age and his sister was 20 years and 3 months of age.

At the time of his death Harry M. Goldberg was earning

$12,500 a year, with good prospects for increments. He

had assets consisting of a home for which no value was

given and participation in a profit-sharing plan which had

accumulated $5,800 in about 5 years.

Sophie Goldberg had no income and no assets.

I think it will be helpful to take up the various items of

damage to which each child was entitled:

1. Pecuniary loss during minority. Here we start with

the yearly salary of the father ($12,500). There was no

proof as to taxes or other obligations. There is little

to base any finding as to how much was expended for each

child, but we do know this: that Howard had about 3

years and 9 months, or approximately 45 months, left of

his minority, while Doris had 9 months left.

Assuming, arguendo, that the father netted $12,500 a

year, we may further assume that one-fourth of this

amount might be allocated to a child. Following these as-

sumptions, the calculation shows that Howard’s pecuniary

loss would be about $11,700; for Doris it would be about

$2,300.

These assumptions are quite liberal, as I see it. They

do not take into account any deduction for income taxes

and they do contemplate the expenditure of one-half the

income for the children’s support, ete.

It should be noted, too, that at the time of the death of

her father Doris was earning $40 per week and contemplat-

55

ing marriage, and did marry two months later. It is ap-

parent that her pecuniary loss was, if any, very little.

The children had no pecuniary loss as the result of their

mother’s death since there was no proof that the mother

had any income or property.

2. Value of services for training, education, etc.

Of course, this is an intangible item and may not be

measured by any exact pecuniary standard. One should

bear in mind, however, the rather short time the children,

under the law, might be compensated for their loss of

service. However, in arriving at a monetary figure for the

loss of the father, one may consider the jury’s verdict in

assessing damages for the loss of the mother.

Since there was no proof of any income or property for

the mother, the verdict of the jury awarding $5,000 to each

of the children can represent only the value of loss of ser-

vice for care, maintenance, ete. If Howard’s loss was

$5,000, Doris’ had to be appreciably less in view of her

marriage before reaching 21 years and her shorter peried

of minority remaining.

It seems to me that this value might very well be as-

signed for the father’s loss.

3. Loss of contributions after maturity.

There is definite authority in the Texas cases for this

item of damage. See Lancaster v. Magrill, 244 8. W. 1078

(1922); International Great Northern R. Co. v. Acker,

128 S. W. 2d 506 (1939). In Hughes Production Co. v.

Hagan, 114 S. W. 2d 326 (1938), the court agreed that the

trial judge was in error in permitting the jury to find on

this item where there was no proof that the minor would

have received contributions after reaching majority. Inter-

national Great Northern R. Co., supra, supports the

Hughes holding.

56

As far as I can ascertain, the only proof in this respect

is that the father intended Howard to have a good educa-

tion and, impliedly, would have contributed to this after

the majority of the son.

4. Loss of prospective accumulations.

International Great Northern R. Co. v. Acker, swpra,

supports this item.

The only value of the father’s estate or what it might

be is the accumulation of $5,800 in the profit sharing plan

of his employer. There was no proof as to the value of

any other property he might have possessed. At the pres-

ent rate of accumulation, it might be said that this fund

would very well not exceed $32,480 in 23 years. Assuming

that the children equally shared that amount in 23 years,

it would amount to $16,240 each. At 2% interest the

present value of an insurance policy of $32,480 payable

at the father’s death would be $20,380, for example, or

$10,190 each.*

Since no proof of the mother’s property was presented,

the children could not anticipate accumulations from her.

I have gone into the question of damages at some length,

because I realize that ordinarily a jury’s verdict on the

amount of damage in a case of this kind should stand, even

though I might disagree as to the amount. Here there is

more than that. I am not setting my judgment against

that of the jury. The figures I have set forth above indi-

cate to me clearly that the jury without doubt were influ-

enced by sympathy for this young man and woman, who

*Based on United States Life and Actuarial Tables, 1939-1941,

Table 20, page 64. This sum is conditioned upon the slightly higher

life expectancy reflected in these Tables than the 23.08 given to the

jury. However, the Tables are sufficiently close (23.97) for demon-

stration purposes.

$32,480 discounted at 2% would be $20,597.30.

57

lost their father and mother in one catastroplie. That is

the only way I can account for these verdicts, which can

be demonstrated, and I think have been, to be excessive.

I see no other recourse except to set aside these verdicts

as excessive and to grant a new trial.

So Ordered.

Settle order on notice.

February 21, 19565.

Epwarp A. Concer,

United States District Judge.