Petition for Writ of Certiorari — Schultetus v. United States (No. 275)

ee tee | eens

No»

In the

Supreme Court of the United States

OCTOBER TERM, 1959

JOANNE MAE SCHULTETUS, ef al.,

Petitioners,

. a ie

UNITED STATES OF AMERICA,

_ Respondent.

AERU ENTERPRISES, INC., et al,

Petitioners,

v.

UNITED STATES OF AMERICA,

: Respondent.

PETITION FOR WRIT OF CERTIORARI

Tv the United States Court of Appr als for the Fifth Circuit

PAUL d: he elegans

Barr Buildi:

910 Sever seems Street, Ni) Woy

Washington, D. @.,

Atturne y of Reeord tur Petitioners,

UN ANDERSON,

HAR RIS. ANDE RSON, HENLEY &

RHODES,

i201 Corrigan Tower,

Dallas, Texas.

ROBERT D. MADDOX,

STANFORD HARRELL,

McDONALD, SANDERS, NICHOLS,

WYNN &€ GINSBERG,

Continental National Building,

Fort Worth, Texas.

S.A. CROWLEY

CROWLEY, WRIGHT, MILLER &

GARRETT,

- gov Sinclair Building,

Fort Worth, Texas. °

WARLICK LAW INC 22¢3 VALOINA STREET—-OCALLAS-—-Ri !-071!

INDEX

Page

REPORT OF THE OPINIONS OF THE COURTS

BELOW 2

GROUNDS ON WHICH ap a IS

INVOKED. 2

QUESTIONS PRESENTED 2-3

STATEMENT 3-11

REASONS FOR GRANTING THE WRIT

Direct Conflict With Holding of This Court . 11-18

Contrary to the Meaning and Effect of Rule 52 (a)

of the Federal Rules of Civil Procedure . . 18-21

Importance of the Question pee 21-23

Conclusion ~ «24

Certificate of Service 25

Appendix A oY

Opinion of the Court Below 27-40

Appendix B :

Judgments and Orders of the Courts Below 41, 43, 45

ii | Authorities ,

: Page

Cases

Eastern Air Lines v. Union Trust Company afd

United States of America v. Union Trust Company, —

221 Fed. 2d 62, affirmed 350 U. S. 907, 100 L. Ed.

796, 76 Sup. Ct. Rep. 192 =11, 12, 18, 14, 15, 16, 17, 20

Rules :

Federal Rules of Civil Procedure, Rule 52 (a) 18, 21

, Statutes

52 Stat. 973, 49 U. S.C. 401 ~, =

72 Stat. 731, 49 U.S. C. A. 1301 ‘ 21

No.

In the

ae /

Supreme Court of the United States

OCTOBER TERM, 1959 |

JOANNE MAE SCHULTETUS, et al...

Petitioners,

uv.

UNITED STATES OF AMERICA, .

oan oe Respondent.

AERO ENTERPRISES, INC., et al.,

Petitioners,

v,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

—

To the United States Court of Appeals for the Fifth Circuit

To the Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court of the United

States: .

Petitioners, Joanne Mae Schultetus; a widow, individ-

ually and as next friend of Douglas Jay Schulietus, a

minor, American Flyers, Inc., Aero Enterprises, Ine., and

Delores Senn, individually and as next friend for John

Edward Senn and. Kathy Anita Senn, minors, pray that

2

a Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth. Cireuit

entered April 18, 1960 (Petition for Rehearing in said

cause having been denied on May 17, 1960).

L

REPORT OF THE OPINIONS OF THE

- COURTS BELOW

The opinion of the United States District Court for the

Northern District. of Texas (R. 894-912) is reported in

167 F. Supp. 229. The opinion of the United States Court

of Appeals for the Fifth Circuit (R. 1051-1064), printed

in Appendix A_hereto, infra, pages. 27-40, is‘reported in

277 Fed. 2d 322.

II.

GROUNDS ON WHICH JURISDICTION IS INV OKED

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered April 18, 1960 (R. 1065

& 1066; Appendix B, infra, pages 41, 43). Rehearing was

denied on May 17, 1960 'R. 1082, Appendix B, infra, page

45). The jurisdiction of this Court is invoked under 28

U.S.C. Section 125$(1). |

III.

QUESTIONS PRESENTED

(1) Whether or not the Ueiped States Government is

liable under the provisions of the Federal Tort Claims

3 - ©

Act, for the negligence of duly authorized CAA personnel

in the operation of air traffic control towers under VFR

‘(Visual Flight Rule) conditions.

(2) Whether or not duly authorized CAA control tower

operators are primarily responsible for the operation of

aircraft within thé air traffic control zone under VFR

conditions.

(3 Whether or not the primary “responsibility for the

operation of aircraft within thé CAA air traffic control

zone under VFR. conditions is upon the pilot.

IV.

STATEMENT

The claims of all Petitioners emanate from a collision

of two training aircraft about one-half (1) mile North

of Meacham Field located in the City of Fort Worth, Tar-

rant County, Texas. The field was owned by the City of

- Fort Worth ahd at the time of the accident in question,

served asa facility for commercial and private aircraft,

including schools of instruction for flight training. At all

‘times material to this case, the C ivil Aeronautics Author-

ity (CAA) maintained and operated a control tower for

the supervision of all air traffic within a designated con-

trol zone. —

The collision occurred on April 9, 1957, at 12:12 o’clock

p.m. The weather was clear, visibility unlimited, with the

sun shining from the South at an elevation of seventy

degrees (70°) and the wind blowing from the southeast at

Pr aad

4

approximately twelve (12) knots per hour. Both aircraft

were on a routine training mission and it is-undisputed | |

that both were well within the defined limits of the CAA

control zone and under tKe direct supervision, control and

observation of the control tow er.

To better understand the sequence of events leading to

the untimely collision, reference is. made to a plat of

Meacham Field shown at page 934 of the Record. Pertinent

to this litigation are runways 17 (170°) and 13 (130°).

On the day in question, runway 13 was in use for all.

routine take-offs and landings (i. e., all aircraft, v would take |

off and land in a southeasterly direction). The aircraft

‘ ‘involved were of the lightweight variety, and therefore, the

-prescribed traffic pattern, as denoted by the plat, was the

small rectangular pattern within the larger circular pat-

tern. A plane flying this rectangular pattern for runway

13 should take off in a southeasterly direction and climb to

-an altitude of four hundred feet (400’); make a ninety

degree (90°) left turn, and climb to six hundred feet

(600’: (the cross wind leg) ; make a second ninety degree

(90°) left turn maintaining the same altitude and pro-

_ ceeding in the opposite direction from that of take-off and

parallel to the take-off runway (the downwind leg) ; make

» third ninety degree (90°) left turn (the base leg and

_*then make a fourth ninety degree (90°) left turn onto

final approach for landing on the same runway. In short,

it is a generally prescribed rectangular pattern at specific

alt itades.

-

.

On the day in question, runway 17 (170 ) was used for

practice or simulated instrument. approaches only inas-

much as this runway was the only one equipped with the. .

necessary navigational facilities to accomplish this type of

maneuver. Attention i is called to the plat at page 894 of the

record’ which . reflects’ the .runw ay layout of Meacham

Field, and also encompasses the instrument approach range ~

for landing on runway 17 could be used for making this

type of practice approach. According to CAA regulations,

a plane making an actual -or practice instrument landing

would begin its approach at seven hundred feet ‘700’:

over the radio range located 2.1 miles North of runway 17

and continue inbound in an attitude of gradual} descent -

until making touch down on the runway: in question. The

simulated or practice instrument approach is a procedure

by which the student pilot wears a special type goggle

and the windshield on his side of the plane is covered with

a colored plastic material, the combined effect of which

makes it impossible for the student pilot to see outside of

the aircraft, but possible for him to see his flight and

navigation instruments. The instructor pilot seated on the

-right has normal vision from his side of the plane. The

colliding aircraft, (Cessna 140), however, approached from

the left side of the plane.

At this point, by looking at the plats referred to, it is

more than obvious even to the casual observer, that a line

projected from the radio range to runway 17 ‘would, of

necessity, cross a line depicting the downwind leg for run- .

way 13, (See prescribed traffic pattern R. 934), and two

6

aircraft Yeaching the intersection of the two lines at the

same time and at the same altitude would collide. Thus,

under the circumstances of this case as noted below, clear-

ances given the two aircraft without further warning to

alter or change course obviously resulted in the collision

of the two planes. ‘

Shortly prior to the collision, a Cessna 170, one of the

planes involved, was given clearance by the control tower

by voice radio to make a simulated or practice instrument

approach for runway 17. This plane was owned by Peti-

tioner American Flyers, Inec., and was occupied by pilot

instructor Schultetus and student pilot Rattunde. Also,

shortly prior to the collision, and at a time when the

Cessna 170 was approaching the radio range from the

North for the practice instrument: approach, the control

tower cleared at least three Cessna 140’s for takeoff on

runway 13. The first Cessna 140 cleared by the tower was

owned by. Petitioner Aero Enterprises, Inc. and was oec- ©

cupied by instructor pilot Senn and student pilot Chambers,

and was the other plane involved in the collision, At the

time of the collision all theee Cessna 140’s, which had been

cleared by the tower minutes before, were at various posi-

tions on the downwind leg for runway 13 as reflected by

the plat, one dehind the other and all at 600 feet. The Senn

aircraft and the aircraft immediately following it was not

equipped with a functioning radio nor was one required.

These two aircraft were controlled from the CAA tower

by light signals.

. : ; 7

When the Senn aircraft (Cessna 140) was well into

the downwind leg, the Cessna 170, as it passed over the

middle marker, (See plat referred to abovei, transmitted

to the tower “missed approach” and immediately com-

menced a fifteen degree (15 ) climb, from four hundred

feet 14001, which was standard procedure, Seconds later -

the Cessna 170 and the Cessna 140 collided at an altitude.

of six hundred feet (600’) and fell in the approximate

positions as indicated by “X" on the plat shown at page 934

of the Record. Both aircraft were demolished and all oc-

cupants instantly killed..At the time of the collision there |

were three Cessna 140’s on the downwind Jeg and accord-

ing to the first incident report filed by the Civil Aero-

nautics Authority’s investigators, the two aircraft involved

in the accident had been on a collision course (R. 935).

Although chief tower operator Ellis testified as to advices,

so-called, given by radio transmission to the Cessna 170

concerning a Cessna 140, no advice, so-called, was given as

to the fact that there were three Cessna 140’s on the down-

wind leg and as to which one he had reference. Further-

more, realizing that the two aircraft were on a converging

and collision course, none ef the three tower operators gave

any warning, by light signal or otherwise, to the Cessna

140 prior to the collision in question. It is undisputed that

the chief controHer failed to instrutt_the Cessna 170 to

alter its course so as to avoid the possibility of a collision

at any time while the aircraft were on a collision course. It

is also undisputed that at the time of the accident, (1) the.

control tower was staffed by three CAA qualified cont yal >

8

operators, (2) the chief operator was in radio communica-

tion with the Cessna 170, (3) the tower was equipped with

‘necessary light guns for communication with the other air’

craft, and (4) all operators witnessed the events leading

up to the collision and the aircraft involved, but no warn-

ing was given to the Cessna 140.

Mrs. Joanne Mae Schultetus, widow of instructor-pilot

John ‘Kenneth Schultetus, filed suit on her own behalf and

for her minor child, Douglas Jay Schultetus, against the

United States, under the applicable provisions of the Fed-

eral Tort Claims Act, supra, and Aero Enterprises, Inc.,

as co-defendants. Plaintiff alleged various acts of negli-

gence on the part of the CAA control tower operators and

pilot Senn, employee of Aero Enterprises, and that such.

acts were the proximate cause of her husband’s death.

Plaintiff prayed for judgment against all defendants,

jointly and severally (R. 24-39). The United States and

Aero Enterprises, Inc., cross-claimed against each other for

indemnity and contribution (R. 64, 68-73), and the Ohio

Casualty Insurance Company intervened as subrogee in

the amount of workmen’s compensation paid for the-death

of Schultetus (R. 81-84). |

Thereafter, Mrs. Delores Senn, widow of instructor-pilot

John Edward Senn, filed suit in- her own behalf and for her

two minor children: against the United States. under the

provisions of 28 U. S. C. 1346(b), and 28 U.S.C. 2671, et

seg. (Tort Claims Act). Co-plaintiffs in the action were

Madie Jane Senn, mother of deceased pilot Senn, and Aero

Enterprises, Inc., the latter plaintiff suing for the value of .

9

the Cessna 140. Also named as defendant by Delores Senn

and Madie Jane Senn. was American Flyers, Inc. Plaintiffs

alleged various acts on the part of the CAA control tower

operators and the pilot of the Cessna 170, as being negli-

gence and the proximate cause of the injuries and damages

complained of, and prayed judgment against each defend-

ant, jointly and severally (A. E. R. 4-19). American Flyers

cross-claimed against the United States for indemnity and

against the United States and. Aero Enterprises, jointly,

for the value of its aircraft (A. E. R. 33-37). The United

States likewise cross-claimed against American Flyers,

Inc., for indemnity and contribution (A. E. R. 49-53).

On May 26, 1958, after having been consolidated for

trial purposes, the cases were tried before the Court with-

out a jury. Thereafter, judgment was entered for all plain-

tiffs against the United States of America, from which

judgment the Government appealed to the Court of Ap-

peals of the United States, Fifth Circuit. The opinion and

judgment of the District Court is reported in 167 F. Supp.

239. The Trial Court, in its Special Findings as to negli-

gence, found: ,

fa) That the pilots of the Cessna 140 and Cessna 170

were not guilty of any acts of negligence and that they

were exercising ordinary care for their own safety at the

time and on the occasion of said accident and no evidence

was introduced sufficient to overcome said presumption

(b) At all times subsequent to the clearance of the

Cessna 170 for the simulated instrument approach there

10

were two (or more) Cessna 140 aircraft on the downwind

leg for runway 13.

(ct The control tower operator cleared the Cessna 170

for a practice instrument approach for landing on runway

17 with knowledge that there were other aircraft on the

downwind leg for runway 13. |

(d) That the operator in charge of the control tower

failed to inform the Cessna 170 of the presence of more

than one Cessna 140 aircraft which were on a converging

or collision course with it and failed to identify which

Cessna 140 that he had reference to in directing any warn-

ings given the Cessna. 170. : .

(e) The tower operator failed to instruct the Cessna 170

to alter its course so as to avoid the possibility of collision

with the Cessna 140,

(f) The tower operator failed to give a warning light

signal to the Messna 140 to give way to the Cessna 170, and

further, failed to give a general warning light signal to the

Cessna 140 to warn it of the presence of the Cessna 170.

On Apyii 18, 1960, the United States Court of Appeals

for the Fafth Circuit reversed the Trial Court and held

that: ;

(1) The District Court erred in placing upon the opera-

tors. of control towers the primary responsibility for the

operation of aircraft and not recognizing certain Govern-

mental regulations which have assigned this responsibility

to the operators of aircraft.

11

(2) The operation of control tower and the duties of the

operators of the control tower are merely advisory and’the

primary responsibility for the operation of aircraft is upon

the pilots under VFR (Visual Flight Rules) conditions.

(3) The District Court had-an erroneous concept of the

functions and duties of the operators of the control tower.

(4) The District Court’s findings were clearly erroneous

with reference to there being two or more Cessna 1460's en

the downwind leg preparatory to landing on runway 13.

(5) There was no actionable negligencé on the part of

the tower operators in failing to give or attempting to give

light signals to the Cessna 140;

“Ws :

REASONS FOR GRANTING THE WRIT .

Direct Conflict With Holding of This Court

(1) ‘The decision of the Fifth Circuit Court of Appeals

in this case is directly contrary to that of this Court in

the case of Eastern Air Lines v. Urion Trust Company

and United States of A merica v, Union Trust Company,

221 Fed. 2d 62, affirmed 850 U.S. 907, 100 L. Ed. 796, 76

Sup. Ct. Rep. 192.

The facts of the Eastern Air Lines case are almost

identical in many respects with those of the case now: be-

fore this Court. In the Eastern Air Lines case, a Bolivian

P-38 type plane collided with a Commercial: DC-4 owned

by Eastern Air Lines within the air traffic control zone of

the Washington National Airport. The case against Fast-

12

ern was tried before the jury and the case against the

United States was tried before the Court. The jury found

Eastern negligent and assessed damages; the trial court

found the United States likewise negligent and assessed ~

damages. The Court of Appeals reversed as to Eastern but

affirmed as to the United States. This Honorable Court

then likewise affirmed as to the liability: of the United

States but reversed in part as to Eastern. It is interesting

to note that the United States did not prevail before any

forum in which the case was tried.

‘ In the Eastern Air Lines case, the two aircraft were

within the air traffic control zone at the Washington Na-

tional Airport and “‘at all times in question, weather con-

ditions at and near the airport were excellent and visibility

unimpeded”, (VFR conditions), 221 Fed: 2d 79. Actually,

_as in the case at bar, the sequence of events transpired

within the view of the control tower operators. The evi-

dence showed that both planes were within the traffic pat-

tern and at the time of the collision both had turned on to

final approach, one behind the other. Seconds later, the |

P-38 crashed into the DC-4 from above and behind, both

planes failing to the ground and killing all occupants ex-

cept. the P-38 pilot.

‘In the Eastern Air Lines case, the Trial Court for:nd:

“* * * As to negligence, I find that there was failure

of the control tower personnel to issue a timely warn-

ing to the Eastern plane as to the P-38 being on final

approach; in the failure, also, to warn the P-38 thaf

Eastern was on final approach; in clearing both planes

for the same runway at approximately the same time,

13

having in mind their respective positions in relation

to each other and the speed of both their approach and

descent; and the failure to keep both planes advised

as to the activities of the other; * * *” (Emphasis °

ours. }

The Trial Court in the case at bar made findings as to

almost identical acts of negligence on the part of the con-

trol tower operators, as heretofore pointed out, pages 9, 10,

supra,

The Fifth Circuit Court of Appeals, when it reversed

the case at bar, in effect overruled the Eastern Air Lines '

case, supra, when it stated that:

“It is apparent that .the District Court had an er-

roneous concept of the functions and duties of the

. operators of the control tower.” (Emphasis ours.)

That Court further held in the case at bar that it was the

direct and primary responsibility of the pilots of the atr-

‘craft to avoid collision with other planes and. “that the di-

rect and primary responsibility for the operation of air-

craft over or in the vicinity of an airport rests upon the

pilots of the aircraft.” .

To the contrary however, there is no hint of primary or

secondary responsibility in the Eastern Air Lines case be-

cause in that case it was said that:

“It is, therefore, our opinion that if a government

tower man negligently clears two planes to land on

the same runway at the same time or is guilty of some

_ other negligent act or omission in doing his work, the

government is liable for resu!iing injury in the same

manner and for the same reason that it is liable for

injury done by a driver of a mail truck who, in exer-

— i

cising discretion as to how to drive negligently runs

through a red traffic light.” 221 Fed. 2d 78.

The Fifth Circuit Court of Appeals attempts to make a

distinction between visual flight rule (VFR?! and instru-

ment flight rule ‘IFR». conditions regarding tower opera-

tions. Yet no such distinction was made in the Eastern

Air Lines case. In the Eastern Air Lines case the Trial

Court further found:

“4. For an adequate period of time before the colli-

sion, both planes were visible to the control tower

personnel who observed said planes and knew that

said planes were on converging approaches for land-

ing on runway 32, and said personnel had an adequate

opportunity to give timely warnings and instructions

tu each plane.” (221 Fed, 2d°79.) (Emphasis ours. '

“c.” ‘they failed to keep both planes advised of the

activities of the other’.” (221 Fed. 2d 79.) (Emphasis

ours. |

It should be noted that emphasis is placed upon each plane

and both planes beng notified, not merely one plane.

In direct conflict therewith. the Fifth Circuit Court in

its opinion continually refers to the fact that the @essna

170 having been warned, there vas no duty to warn the

Cessna 140 in spite of the Civi! Air Regulations and the

_law as stated by this Court in the Eastern Air Lines case

to the contrary. The Trial Court found negligence on the

part of the tower operators in’ failing to give or attempting

to give visual light signals to the Cessna 140. The Fifth

Circuit Court, however, determined that such finding was

clearly erroneous. In light of the Eastern Air Lines case,

how can the two decisions be reconciled?

15

Further, the similarity is revealed in that in the Eastern

Air Lines.case, as in our case,.there @as a finding of newvli-

gence on the part of the tower operators as to their failure

to identify the aircraft referred to in their radio trans-

missions. ‘This is set forth on pages 66 and 67 of the Fast-

ern Air Lines opinion as follows:

“Having been told by the tower he was No. 2 to

land on runway 3 and having seen, as he thought, that

the plane which was No. 1 to land on that runway. had

already done so and had taxied away, Bridoux con-

cluded it was unnecessary for him to check with thee

tower to learn whether the plane ahead of him had

landed. We reproduce in the margin his testimony that

‘ he regarded the tower's statement, ‘You are No. 2 to

, © land or runway 3,’ an absolute clearance to land after

he had decided for himself, without further commu-

nication with or from the tower, that the No. 1 plane

Was out of the way.”

‘In the case at bar the CAA investigator testified without

contradiction that since there were two or possibly three

Cessna 140’s on the downwind leg, then the pilot of the

Cessna 170 could have become confused as to which Cessna

140 the tower had reference to in its warning, (R. 525). It

is undisputed that the tower advised of only one Cessna

‘140 and the Trial Court found that:

“the operator in charge of the control tower failed to

inform the Cessna 170 aircraft by radio of the pres-

ence of more than one Cessna 140 aircraft which were

on a converging or collision course with the Cessna

170 (59 Victor); and failed to identify which Cessna

140 he was referred to in directing any warnings:

given to the Cessna 170 159 Victor).”-

16

The facts and findings of both cases are identical, yet the

result of the decision of the Fifth Circuit Court is direct

conflict with that of the Supreme Court of the United

States.

Furthermore, there is a similarity in this case and the

Eastern Air Lines case in that as a practical matter, the

- tower operator gave clearance to both planes when they

were on a converging or collision course, because by neces-

sity, the clearance of the Cessna 170 meant that it would

have to cross the path of the Cessna 140 on the downwind

leg for runway 13.

The Fifth Circuit Court substituted its opinion for, that

of the Trial Court as to evidence, references to aircraft,

what a pilot had in his mind, ability to see when looking

over your shoulder, and numerous other matters; all con-

trary to the Trial Court’s findings.

The’ conclusicns raised by the Fifth Circuit Court con-

cerning the warnjngs of the tower operator, and its inter-

pretation as which particular Cessna 140 the pilot of the

Cessna 170 nad in mind, should be gravely considered in

light of the fact that the pilots of both planes are dead, and

as stated in Eastern Air Lines case on page 72 of the

opirion, consideration should be given that neither pilot

was bent on self-destruction:

“The negative testimony is weakened further by

the fact that, because of the human instinct of self-

preservation and the disposition of men to avoid per-

sonal harm. Eastern’s dead pilots are presumed to

' have acted with diligence and due care.’

17 "

Needless to say the conclusion of the Fifth Circuit Court

is not only contrary to the law and Rules of Civil Pro

cedure, but it is also in violation of the Eastern Air Lines

case in which it was said:

“We cannot substitute judgment on a factual issue’

‘ for thar of the trial judge simply because we might

have reached a different conclusion.” (221 Fed. 2d

79-80.) (Emphasis ours.)

It should. be noted further that the Fifth Circuit opin-

ion completely fails to discuss the Eastern Air Lines case,

but its ruling obviously attempts to distinguish, limit arid

nearly obliterate the responsibilities and duties of tower

_ operators, contrary ‘to such duties and responsibilities as

approved by this Court in the Eastern Air Lines case. .

This situation is one of the reasons for granting a writ of

certiorari as is provided by Rule 19 of the Supreme Court

Rule which reads in part as follows:.

“1. A review on writ of certiorari is not a matter

of right, but on sound judicial discretion, and wil].be

granted only where there are special gnd important

reasons therefor. The following, while neither control-

ling nor fully measuring the court’s discretion, indi-

cate the character of reasons which will be considered:

“(b) Where a court of appeals * * * has decided a

federal question in a way in conflict with applicable.

decisions of this Court * * *.”

Certainly you have a situation in this case where the Fifth

Circuit Court of Appeals has taken upon itself to overrule

the Eastern Air Lines case and has in effect relieved the

United States Government for the negligence of CAA con-

: 18

trol tower operators. To accept the decision of that Court

will render the term scontrol tower” meaningless for there

will be no control.

Contrary to the Meaning and Effect of Rule 52(a)

of the Federal Rules of Civil Procedure

(2) Since its inception, much has been said by many

able jurists throughout the land concerning the meaning ©

and effect of Rule 52(a), of the Federal Rules of Civil

Procedure. The Books are replete with cases which have

turned on this one rule and its ever present mandate that

“* * * findings of fact shall not be set aside unless clearly

erroneous, and due regard shall he given to the opportunity

of the trial cqurt to judge the credibility of the witnesses.”

Labeled by some writers as the “Unless Clearly Erroneous”

doctrine, it has been held time and time again that the Ap-

pellate Court, upon review, will not retry issues of fact

or substitute its judgment with respect to such issues for

that of the Trial Court. To cite cases reflecting various

interpretations of the rule would serve no useful purpose

here, 2° each case must turn upon its individual set of

facts. We can only point up to this Court the very obvious

apparent contradictions in the testimony and say that each

finding of fact by the Trial Judge was based upon his

opportunity to observe the demeanor of the witnesses

while testifying, to appraise their credibility and to deter-

mine the weight to be given to their testimony.

19

By Way of illustration, the Fifth Circuit Court reached

the conclusion that the operators of the tower and the

operators of the Cessna 170 both had reference to the same

aircraft in their radia communications with each other.

However, we respectfully point out to this Court that there

is not one word of testimony, nor is there the slightest :

inference in the record to indicate which aircraft the opera-

tors of the Cessna 170 had reference to inasmuch as both

were killed in the collision ‘i. e.. the tower operator sup-

posedly warned of a “Cessna 140” and the pilot of the

Cessna 170 supposedly acknow ledged by radio transmission

“have him in sight”, The Trial Court found that there :

_ Were three Cessna 140’s jn the specific area, any one of

which the pilot of the Cessna 170 could have observed),

In fact, the government’s own witness as heretofore pointed

out, testified without contradiction that the -pilet of the

Cessna 170 could have been confused as to which Cessna :

‘140 the tower operator was referring to (R. 525). Inecred- }

ible as it may be, the Fifth Circuit Court brushed aside

the Trial Court's s findings and said that the tower and the

Cessna 170 were referring to the same aircraft.

The Fifth Circuit Court said further that the second

Cessna 140 was not far enough along on the downwind

leg to have been the plane to which the Cessna 170 réferred

in acknowledging the warnings of the control tower. How-

ever, we call this Court’s attention to the gry positive and

‘uncontradicted testimony of an eye-witness to the accident.

20

This witness, an occupant of the second Cessna 140, demon-

strated to the Trial Court with the aid of a plat of Mea-

cham Field, his exact position on the downwind leg at the

time of the collision (R. 278).

In these instances and in many other instances through-

out the trial of this case, the trial judge had the benefit

of observing the demeanor of the witnesses and to judge

their credibility. The mere fact that the Fifth Circuit

Court disagrees with the conclusions reached is not grounds

_ for reversal if the views of this Court in the Eastern Air

Lines case are to be observed.

The Fifth Circuit Court repeatedly stated that the trial

court was clearly erroneous and that the tower operators

were not confronted with a situation which imposed a duty

‘io warn the Cessna 140 by light signals. Yet, this Court

in the Eastern Air Lines case held that both aircraft prior -

to the ecllision should have been notified by the tower when

on a convergiug or collision-course. It is uncontradicated

that the two aircraft in question in this case were on a

evilision course and that no attempt was made by the opera-

tors of the tower to prevent the very act that they were

trained to prevent.

Throughout the record of this case there is more than

ample testimony to support the findings of the Trial Court

with reference to the negligence of the tower operators.

Because the Fifth Circuit Court of Appeals disagrees with

21

the conclusions reached, it saw fit to invade the province

of Rule 52a) of the Federal Rules of Civil Procedure and

step beyond the limits of this well Mefined rule of law by

retrying the issues of act and substituting its own judg-

ment with respect to such issues for those of the Trial

Court.

Importance of the Question

(3) The question presented by this case, simply stated,

is: Does the responsibility for the operation of aircraft

within an airport traffic control zone lie with each indi-

vidual pilot or with the centrally located control tower?

The Fifth Cireuit Court of Appeals has said the pilot,

whereas, the Supreme Court of the United States has said

the control tower. The importance of such a question —

cannot be over-emphasized with the jet age upon us and

the space age over the horizon. Needless to say, a clear cut

standard of responsibility is urgently needed for the pro-

tection of the lives and property of the American people.

The United States Government pre-empted the field of

aviation long ago wich the advent = the Civil Aeronauties

Act of 1938, 52 Stat. 973, 49 U. S.C. 401, Which act au-

thorized the formation of the Civil Aeronauties Board

(CAB) and the Civil Aeronautics Administration ‘CAA).

‘Since this case was tried, Congress enacted the Federal

Aviation Act of 1958, 72 Stat. 731, 49 U. S.C. A. 1201,

which act abolished the CAA and created a new executive

prganization known as the Federal Aviation Agency

(FAA), :

929

ee

After the creation of the CAA, voluminous rules and

regulations were adopted setting up the facilities and per-

sonnel for the regulation and protection of -air traffic, in-

cluding ‘the impertant control tower facility maintained

by its duly certified operators. It is interesting to-note that

| throughout its nistory, the CAA would had one believe

that its rules and regulations are adrisory only, yet, a

violation thereof gives rise to an incident report with pos-

sible civil or crimina! penalty (R. 727). In other words,

the CAA has enjoyed the envious position of saying that

the pilot is ultimately responsible for the safety of his

piane and thereby assuming no liability for the negligence

of its ewn employees, but conyersely punishing any of-

fender for violation of any sq-called advisory instructions

given by the same employee. If the ruling of the Fifth

Circuit is followed, the term “control tower” is a misnomer.

it shou'd be advisory tower. Obviousiy, such a position is

untenable.

The first year of the Jet Age saw the airlines pul! away

- from railroads and’ bus lines in domestic inter-city, pas-

senger-mile competition. A poor third in this competition

just ten years ago, the airlines now account for 47.3%: of

the totalk common carrier traffic. At the current.rate of

increase, the atrlines in 1960 will surpass the combined

total of train and bus passenger miles in this market.

it is estimated that in 1959, 56 domestic air lines carried

55,875,000 passengers, flew some 36.3 Dillion passenger

23

miles and served 721 American cities with 1,908 aircraft.

The number of passengers flown in 1959 represented an

increase of approximately 5,000,000 dver the previous year

of 1958... .

The archaicnotion of sole pilot responsibility might well

have been adequate at the time of the creation of the CAA

and prior to World War II. At that time, private aviation

was in its infancy and had not yet begun to flex its jet-

powered muscles to outer space and such instruments as

radar, gyro gompass, and the like were still on the draw-

ing boards. Twenty years ago, the air space above the

United States appeared adequate with less than 20.000

planes within. the air and few of them capable 6f speeds

faster than 150 miles per hour. Today it is estimated

that 109,500 planes are flying the the same air space, many

of them at tremendous speeds in excess of sound. Of this

number it is estimated that 69.5 are represented by the

General Aviation Fleet (Private: which figure does not

include military or commercial type operations.

4

Indeed, the crowded air space problem wil! become more

acute with each passing year as the number of planes and

their speeds increase. The responsibility for the safety of

the national flying public must be settled, otherwise, it is

conceivable that-aircraft will fly about the country in aim-

less confusion and without central control as the tower

| operators stand by to issue a casual advisory and hope for

the best.

24

CONCLUSION

Petitioners therefore respectfully urge that this Peti-

tion for Writ of Certiorari be granted.

Respectfully submitted,

PAUL J. SEDGWICK,

Barr Building,

910 Seventeenth Street, N. W.,

Washington, D. C.,

Attorney of Record for

Petitioners.

L. W. ANDERSON,

HARRIS, ANDERSON, HENLEY &

RHODES, :

1201 Corrigan Tower,

Dallas, Texas.

RoBerT D,. MADDOX,

STANFORD HARRELL,

McDONAED, SANDERS, NICHOLS,

WYNN & GINSBERG,

Continental National Building,

Fort Worth, Texas.

S. A. CROWLEY,

CROWLEY, WRIGHT, MILLER &

GARRETT,

909 Sinclair Building,

Fort Worth, -Texas.

By

PAUL 3. SEDGWICK

25

CERTIFICATE OF SERVICE

_ Petitioners, Joanne Mae Schultetus, a widow, individu-

ally and as next friend of Douglas Jay Schultetus, a minor,

American Flyers, Inc., Aero Enterprises, Inc., and Delores

‘Senn, individually and as next friend for John Edward

Senn and Kathy Anita Senn, minors, served Respondent,

United States of America, with three copies of the Peti-

tioner’s Petition for Writ of Certiorari in accordance with

Rule 33, Subsections 1 and 3(b), by depositing copies of

such Brief in the United States Post Office at Washington,

1D. C., postage prepaid, addressed to Counsel of Record for

Respondent, George Cochran Doub, Assistant Attorney

General, Civil Division, United States Department of Jus-

tice, Washington, D. C., W. B. West, III, United States

Attorney, Federal Building, Fort Worth, Texas; Morton

Hollander and Howard EF. Shapiro, Attorneys, Department

of Justice, Washington 25, D. C., sending three copies of

such Brief to each of them on the day of July, 1960,

in accordance with Section 1 and 3 (bi of Rule 33 of the

Revised Rules of the Supreme Court of the United States.

PAUL J. SEDGWICK,

Barr Building,

910 Seventeenth Street, N. W.,

Washington, D.C.,

Attorney of Record for

, Petitioners.

27

APPENDIX A

OPINION OF THE COURT BELOW -

In the

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 17712

UNITED STATES OF AMERICA,

2 ? Apy ant,

Pepsits

JOANNE MAR SCHULTETUS, & Widow, Individually and as

- next friend of DotGLAs JAY SCHUDTEPUS, a minor, ef al. *

: App. llee.

No. 17713

aU NITED STATES OF AMERICA, .

App Mery -

Mepis

AERO) ENTERPRISES,. INC... ef a7...

App. Mes S.

Appx als from the Unite d Ntate Oy Piistrict Court fi thie

Northe rh Doistrict of Ts Us,

(April 1S, Loe:

Before HUTCHESON, JONES and WISDOM,

Circuit Judges.

28

JONES, Circuit Judge: These cases arose out of a colli-

sion of airplanes over Meacham Field at Fort Worth,

Texas. This field is owned and operated by the City of

Fort Worth. It is used by all types of aircraft for various

purposes but it is not generally used by commercial air-

lines operating on scheduled flights. There are three large

runways on the field, of which only two require reference.

Runway 17 runs in a north-south direction (178 South),

and it is crossed by Runway 13 which runs in a northwest-

southeast direction 1130 Southeast). Flight operations at

the field were directed from a control tower operated by

employees of the Civil Aeronautics Administration, an

_ agency of the United States, herein called CAA. The colli-

sion occurred a few minutes after noon on April 9, 1957

The sun was shining and a moderate wind was blowing

from the southeast. The two aircraft involved ~ the colli-

sion were owned by separate flying schools. One of these

airtraft, a Cessna 170, frequently identified in the testi-

mony as 59 Victor, was owned by American Flyers, Inc.

It was in charge of instructor pilot Schultetus who had

with him student pilot Rattunde. The other plane was a_

Cessna 140 which was owned by Aero Enterprises, Inc.,

and at the time of the collision it was operated by instruc-

tor pilot John Louis Senn and student pilot C. P. Cham-

bers. All four occupants of the aircraft were killed in the

collision.

Aero Enterprises, “Senn’s widow for herself and her

minor children, and Senn’s mother, brought suit against

American Flyers and the United States. It was asserted

29

that the pilots of the Cessna 170 were negligent in operat-

ing the plane and that the United States was negligent

in the giving of improper signals and in failing to give

proper signals from the control tower, and that the negli-

gence so alleged was the cause of the collision. American

Flyers cross-claimed against Aero Enterprises. and the

United States for the value of its Cessna 170: making

similar allegations of negligence against Aero Enterprises

as the plaintiffs had made against it, and making like

charges against the United States. American Flvers also

cross-claimed against the United States of indemnity,

and the United States. cross-claimed against American

Flyers for indemnity or contribution. The widow of

Schultetus for herself and her minor child brought suit

against Aero Enterprises and the United States assert-

ing negligence liability for the death of her husband. Aero

Enterprises cross-claimed against the United States Which

cross-claimed against Areo Enterprises, eath making pr 0-

tective claims for indemnity or contribution. The Ohio

C asualty Insurance Company intervened to recover: work-

men's compensation benefits paid for the death of Schul-

tetus,

The two cases were consolidated for trial. The district

court found that there was no negligence in the operation

of either of the aircraft. It foand that the CAA employees

were negligent in what they did and in what they failed to

do, and that their negligence was the cause of the collision

with the resulting loss of life and property. Judgments

aggregating $147,000 were entered against the United

39

States. The district court’s opinion is reported if”167 F.

Supp. 239. The United States has appealed in each case

and the appeals were consolidated. These proceedings do .

not involve any claims from the death of either of the

student pilots.

Shortly before the collisiog the Cessna 140 took off on

Runway 13 to the southeast and into the wind. This plane

was engaged in making practice landings. This plane was

radio equipped but the radio was not in “operation. No

radio was required in the activity of the Cessna 140. The

routine of such procedure was to climb from the take-off

to a 49Q-foot altitude, make a left turn to the crosswind

leg and climb to 600 feet, turn left again to a downwind

course parallel with Runway 13 for an appropriate dic-

tance, then make another left turn into the so-called base

leg and from it turn into the runw ay approach for a land-

ing. Two other Cessna 140’s took off after the Senn- -piloted

aircraft. One of these had aboard instructor pilot George

A. Schlarman and student pilot Marvin Brown. The other

Cessna 140 was being flown by Pete B. Dennis.

The Cessna 170 was coming in from the north to make a

simulated instrument landing on Runway 17. Rattunde,

the student, Was taking instruction instrument flying. His

side of the windshield was covered with a transparent

amber shield and his eyes were covered with polaroid gog-

gles, so that he could see the instrument panel in the plane

but could not see through the windshield. The visibility of his

instructor was not, and Was not permitted to be, restricted

or impaired, As the Cessna 170 approached, the Cessna 140)

31

had turned intu its northwest or downwind course, flying

at 600° feet. The Cessna 170 requested the control tower to

clear it for a simulated instrument landing. The clearance

Was given and with the clearance a warning was given

that there was “Traffic, Cessna 140 East of the field,

downwind for Runway 13." A brief interval later the

tower again warned the Cessna 170 of “Traffic, Cessna

14) downwind East of the field for Runway 13,” and asked

“Do you have him in sight?” The Cessna 170 replied, “I

have him in sight.” As the Cessna 170 came over the “mid-

dle marker” radio’ facility, about six-tenths of a mile from

the end of Runway 17, at an altitude’of 400 feet, it trans:

mitted-“missed approach,” and began climbing. The tower

way e anpther warning, “Cessna crossing in front of you.’

Calvin Ellis, the Senior Controller at the tower, heard an

acknowledgment. As the Cessna 170 began its climb it

made a turn to the left! and in a matter of seconds the

Cessna 170 came up to and struck the Cessna 140.

The district court found that each of the aircraft was

on a proper course and altitude at the time of the col-

lision and that there Was no negligence on the part of the

operator of either of the aircraft. It.was found that there

“Were-two or more Cessna 140’s on the downwind leg and

that the tower operators were negligent in failing to warn

the Cassna 170 of the presence of more than one and in

failing, in the warnings, to identify the Cessna 140 re- :

ferred to. The district court found that the operators of

‘The making of a turn by the Cessna 170 is in dispute. The distret

court found that such a turn was made. The evidence permits, if it does

not require, such finding.

32

the-control tower negligently failed to instruct the Cessna |

170 to alter its course so as to avoid the collision, .and like-

wise negligently failed to give red. light signals to the

Cessna 140 directing it to give way to the Cessna 170. It

was also held that the tower operators negligently failed to

maintain proper control over the two aircraft so that each

would be properly spaced. The acts of the operators of the

control tower, so found to be negligent, were determined

by the district court to be the proximate cause of the col-

lision and of all the damage resulting therefrom. 167 F.

Supp. 239, 245-246. The findings and conclusions of the .

-district court are challenged by the-United States.

Liability growing out of the operation of aircraft is to

be determined by the ordinary rules of negligence and

due care. King v. United States, 5th Cir. 1949, 178 F. 2d

320; 6 Am. Jur. 38 "et seq, Aviation ‘64. The applicable

law, under the Federal Tort Claims Act, 28 U.S.C.A.

S$ 1346(b),; is that of Texas. The well-settled negligence

. rule in Texas is that “The ability to have foreseen and

prevented the harm is determinative of responsibility.”

30B Tex. Jur. 179, Negligence, § 8. But, as this Court has

said. “ * * * it is not required that the particular accident

complained of should have been foreseen. All that is re-

quired is ‘that the injury be of such a general character

as might reasonably have been anticipated; and that the

‘injured party should be so situated with relation to the

wrongful act that injury to him or to one similarly situated

"might reasonably have been foréseen.’ ” Jnternational Der-

rick & Equipment Co. v. Crvix, 5th Cir. 1957, 241 F. 2d

33

216, 221, cert. den. 354 U. S. 910, 77 S. Ct. 1296. 1 L. Ed.

2d 1428, fn

It is the position of the United States that the district

“court committed error in determining that the acts of

the operators ofthe control tower were negligent, and the

proximate cause of the collision and of the damage re-

sulting from it. The Government contends that the court

Was in error in determining that the Cessna 170 was not

negligent in making the left turn that brought it into col-

lision with the Cessna 140, |

“It is required that, “Findings of fact shall not be set

aside unless clearly erroneous, and due regard shall be given

to the opportunity of the trial court to judge of the credi-

bility of the witnesses,” Rule 52(a) Fed. Rules Civ. Proc.,

28 U.S.C.A. This Court, discussing Rule 52(a) has said,

“Under that rule, as it plainly reads and has been

interpreted by the courts, it is not for the appellate

court to substitute its judgment on disputed issues of

fact for that of the trial court where there is sub-

stantial credible evidence to support the finding. It

may reverse, though, under the rule (1) where the

findings are without substantial evidence to support

them; (2). where the court misapprehended the effect

of the evidence; and (3) if, though there is evidence

which is credible would be substantial, the force and

effect of the testimony considered as a whole convinces

that the finding is so against the great preponderance

of the credible testimony. that it does not reflect or

represent the truth and right of the case.” Sanders ¥.

Leech, 5th Cir. 1946, 158 F. 2d 486, 487. See United

States v. Gypsum Co., 333 U. S. 364, 68 S. Ct. 525. 92

L.Ed. 746; Williams v. United States, 5th Cir. 1958.

252 F. 2d 887; Manufacturers Casualty Insurance Co,

34°

". Iutrusion-Prepakt, Inc., 5th Cir. 1959, 264 F. 2d

758; Neil v. Commissioner of Internal Revenue, 5th

Cir. 1959, 269 F. 2d 563.

The Government attacks the’ district court's findings

that there were two or more Cessna 140's of the downwind

‘leg for Runway 13; and that the control tower negligently

failed to warn the Cessna 170 of the presence of more than

one and failed to indicate which of the Cessna 140’s was

‘referred to in the warnings. Of the two Cessna, 140's which

followed the one involved in the collision, the first co take

off was in charge of pilot Schlarman who was giving in-

structions to student pilot Brown. This plane flew an ex-

tended course on taking off. It had, perhaps, completed

its crosswind leg and sttivted downwind before the collision ,

and even before the warnings> The confusing and conflict-

ing evidence would support such finding as was made. But,

having flown the exterided take-off leg this plane was not

far enough along on the downwind leg to have been the

» .ne to which the Cessna 170 referred in acknowledging

the contro! tower’s final warning of “Cessna crossing in

‘ frunt of you.” |

The last of the Cessna 140’s to take off from Runway 13

was piloted by Dennis who was practicing solo flying. He

was some distance behind Schlarman and, by his testimony,

had just rolled into the downwind leg when the collision

occurred. There is nothing in the evidence that justifies

the inference that the operators of the Cessna 170 could

have regarded it as the Cessna 140 which it acknowledged

that it had in sight. Although there were witnesses who

voiced the opinion that the operators of the Cessna 170

35

might have believed that the warnings from the control

tower referred to the Schlarman or Dennis aircraft, such

opinions could only have been. based on speculation and

conjecture. We cannot escape the deduction that the only

well-founded determination of which the facts will admit,

is that both the operators of the tower and the operators

of the Cessna 170 ‘had reference to the Cessna 140, which

was in the collision, in the givjng by the one and the ace

_ knowledging by the other of the warnings. The district

court's findings, then, we find to be clearly erronepus.

~

It seems cupivuit that the district court had an erron-

eous concept of the functions and duties of the operators of

the control tower. This is manifested in its finding, so

called, that the operator at the control tower was negligent

in failing to instruct the Cessna 170°to alter its course so

as to avoid the possibility of collision with aire ‘aft in the

traffic pattern of Runway 13. The duties and responsibil-

ities of air traffie control personnel have been set forth

in a joint manual called the A N C Manual, issued by the

Army, Navy, Air Force, Coast Guard and C ‘A A. The

control tower is charged with the responsibility “for the

issuance of clearances and information (o pilots of aircraft

fox the purpose of preventing collision between:... Aireraft

in the traffic pattern, and landing and taking off at the

‘landing area.”. A N C Manual, Rev. 2d Ed., p. 29, § 3.000,

So too it is provided that, “When flying in visual flight

rule weather conditions it is considered. the direct respon-

sibility of the pilot to avoid collision with other aircraft.

Uv nder such conditions, the information and clearances is-

36

sued by the control tower are intended to aid pilots to the

fullest’ extent in avoiding collisions.” Id. § 3.010. The Civii

Air Regulations of the C ivil Aeronautics Board provide

that “The pilot in command of the aircraft shall be directly

“responsible for its operation and shall have final authority

as to operation of the aircraft.” 14 C.F.R. § 60.2. The air-

port traffic control procedures have been thus summarized,

All aeronautical activities at any eirport, or land-

ing area, and all flying of aircraft departing from

or arriving at an airport which constitutes a contro!

area or control zone, must be conducted in confermit)

with the current pertinent provisions of the Civil Air

Regulations.

> 7 > . _ P

“When flying in visual flight rule weather condi-

tions, (regardless of the type flight plan or air traffic

clearance), it is the direct responsibility of the pilot

to avoid collision with other aircraft. Under such

conditions, the information and clearances issued, by

the control tower are intended .to aid pilots to the ful’-

‘est extent in avoiding collisions. In this connection a

clearance issued by a tower (such as ‘cleared to land’!

either by radio or visual signal is permissive in nature

and does not relieve the piiot from exercising a réason-

able degree of caution in executing the provisions of

the clearance. However, such clearances will not be

issued unless, in the opinion of the tower, the antici-

pated action can be safely completed from a collision

-hazard standpoint if reasonable caution is exercised

by the pilot, Speizer. Preparation Manual for Aviation

Negligence Cases 397.

_The information given by radio from the tower to the

Cessna 170, as to the ‘presence of the Cessna 140, culmi-

nating in the warning, “Traffic, Cessna crossing in front

of you,” was in full discharge of the responsibility of the

37

tower to give information for preventing collision between

aircraft. The theory. followed by the district court would

plaee upon the operators of control towers the primary

responsibility for the operation of aircraft at the field.

Governmental regulations, having the force of law. have

assigned -this responsibility to the operators of aircraft.

What we have just said applies with no inconsiderable

force to the so-called findings of the district court that the

tower operator negligently failed to give visual lfght signals

to the Cessna 140. A steady red light signal means. “Give

Way to other aircraft and continue circling.” An alternat-

ing red and green light signal is a “General Warning

Signal” means “Exercise Extreme Caution.” The district

court decided that the tower should have given the Cessna

140 the steady red “give way” signal after the Cessna 170

had been cleared for a simulated instrument approach.

At this time and thereafter those in the tower, by their

radio contracts with the Cessna f70, believed and were

entitled to believe that if the Cessna 140 maintained its

course, which it did, the Cessna 170 would avoid it. The

tower operator, at this time, was not confronted with a

situation which imposed a duty to attempt to warn the

Cessna 140 by a signal light.

The district court also reached the determination that

"the tower should have given the Cessna 140 a genera!

warning signal to warn it of the presence of the Cessna 170

after the tower operator had observed the aircraft were on

# converging or collision course. It might be noted at this

249 U.S.C.A. $$ 551, 560(a)(5), 1421, 1430 (ad (5); Allegheny Airlines

VEod;

¥. Village of Cedarhurst, 2nd Cir. 1954, 238 F. 2d 812.

38

‘ point that by the time there might have been any thought

of using a general warning signal light, the Cessna 140 had

passed the tower and those in. it would have had to look

backward to have seen any signal. The Cessna 140 was

‘doing routine training flying and it is not suggested that

there were any reasons other than the normal hazards of ~

fiving for the Cessna 140 to anticipate that it would be

signaled. The tower operator, to be sure, could have hoped

and perhaps expected that such a signal then given would

be seen. He could also have hoped but .perhaps not have

expected that a general warning then given would have

alerted the Cessna to the danger then present or then

developing and avoided the collision. The tower operator

believed and was entitled to believe that the Cessna 170

saw the Cessna 140 crossing in front of it and that it would

keep clear. The tower operator was entitled to believe that

the operator of the Cessna 170 would, in the exercise of

his direct and primary responsibility, avoid a collision with

‘another plane, the presence of which he had acknowledged.

There was no actionable negligence on the part of the tower

operator in failing to give, or in attempting t give, visual,

light signals to the Cessna 140. The determination to the

contrary by the district court is, we think, clearly erren-

eous.

What we have said also disposes of the so-called finding

that the tower operators negligently failed to maintain

control over the two aircraft so that each would be prop-

erly spaced so as to avoid collision. Here again the district

court has overlooked the principal that the direct and

39

primary responsibility for the operation of aircraft over or

in the vicinity of an airport rests upon the pilots of the

aircraft. We are of the belief that in this respect also the

district court was in érror.

It may be that there is a greater duty and responsi-

hility upon’ the control tower to aircraft operating ,under

instrument. flight rules’ than under visual flight rules,

‘and in such a situation a lesser responsibility, rests upon

the pilots Although flying a simulated approach the

Cessna 170 was operating under visual flight rules. As has

been said, ability of the instructor pilot to see was not im-

paired, Whatever may be the duty of the tower to a plane

operating under instrument flight rules, we have no doubt

but that the duty of the tower to the two aircraft involved

in the collision and to those flying in them was fully dis-

charged. We do not say that cases may not arise where the

United States will be liable hy reason of negligence of con-

trol tower operators for damages arising from the collision

of aircraft. We are convinced that this is not such a case.

Those findings of the district court which we decide are

clearly erroneous, were either without substantial eviden-

“An airport*traffic control tower is responsible for the insurance of

clearances and information to pilots of aircraft for the purpose of pre-

venting collision between: : ue

. . a7 . .

“Aircraft operating under instrument flight rules after control of such

arcraft has been delegated to the tower by the appropriate air route

traffic control center.” ANC Manual, Rev. 2d Ed. p. 24, 3 3.000.

‘When flying in instrument flignt rules weather conditions it is Gb-

vinysty impossible for the pilot to assume the responsibiiity of avoidsn

collision with other aircraft except as’directed by the ground control

aveney. Therefore, it is of the utméist importance that all clearances

issued by a control tower to pilots of aircraft under its jurisd.ction be

adequate, concise and definite inasmuch as the pilot has po other means

of ascertatning the proximity of other aireraft.” ANC Manual, Rev. 2d"

Ed. p. 29, § 3.011,

40

tiary support or based upon sagt soe ea of the effect

of the evidence.

The United States urges with much vigor that the opera-

tors of the Cessna 170 were negligent in failing to main-

‘tain a proper course.that would have kept it out of the

course of the Cessna 140, and in failing to heed the warn-

ings given from the tower. Having reached the conclusion

that the Government must prevail on its appeal because

no actionable negligence attributable to it has been shown,

it becomes unnecessary for us to consider questions as to

the negligent operation of the Cessna 170.

The judgments of the district court are reversed and

judgments are here rendered for the United States, and

the cause is remanded for further proceedings not incon-

sistent herewith.

REVERSED AND REMANDED.

A true copy

Test: EpwARD W. W ADSWORTH

Clerk, U.S. Court of Appeals, Fifth Circuit

By 3 CLARA R. JAMES

Deputy

New Orleans, Louisiana

June 13, 1960

* 41

APPENDIX B

JUDGMENTS AND ORDERS OF THE

COURTS BELOW +

JUDGMENT.

Extract from the Minutes of April 18, 1960.

No. 17712

UNITED STATES OF AMERICA,

VerSUS

JOANNE MAF SCHULTETUS, a Widow, Individually and as

next friend of DOUGLAS JAY SCHULTETUS, a minor, ef a/.,

This cause came on to be heard’on the transcript of the

record from the ‘United States District Court for the

Northern District of Texas, and was argued by counsel:

ON CONSIDERATION WHEREOF, Ic is now here

ordered and adjudged by this Court that the judgments:

of the said District Court in this cause be, and the same

are hereby, reversed and judgments are here rendered for

the United States; and that this cause be, and itis hereby,

remanded to the said District Court for further proceed-

ings not inconsistent with the opinion of this Court.

43

JUDGMENT.

Extract from the Minutes of April 18, 1960.

UNITED STATES OF AMERICA, |

Appellant,

VETSUS

AERO ENTERPRISES, INC., ef al.,

Appellees.

This cause came on to be heard on the transcript of the

record from the United States District Céurt for the North-

ern District of Texas, and was argued by counsel:

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgments of

-the said District Court in this cause be. and the same are

hereby, reversed and judgments are here rendered for the —

United States; and that this cause be, and it is hereby,

remanded to the said District Court for further proceed-

ings not inconsistent with the opinion of this Court.

‘+ * + * .

. nt te

45

In the

United States Court of Appeals

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Appellant,

versus

JOANNE MAE SCHULTETUS, a Widow, Individually and as

next friend of DoUGLAS JAY SCHULTETUS, a ininor, ef a/.,

Appellees,

No, 17713

UNITED STATES OF AMERICA,

Appellant,

VETSUS e

AERO ENTERPRISES, INc., et al.,

Appellees.

Appeals from the United States Distr’et Court for the

Northern District of Texas,

Before HUTCHESON, JONES and WISDOM.

Circuit Judges. —

-PER CURIAM:

IT IS ORDERED That the petition for rehearing in the

above entitled and numbered causes be, and it is hereby

DENIED. re

Extract from the Minutes of May 17, 1960.