in excess of $ 50,000., as provided by the law of Alaska in cases of death by wrongful act. 3 Alaska Comp.Laws Ann. § 61-7-3 (1955), as amended. Whether or not the United States is to be held liable is to be determined with reference to the common law, which has been specifically adopted in Alaska by statute. Alaska Comp.Laws Ann. § 2-1-2 (1949); see, also, Air Transport Associates v. United States, 9 Cir., 1955, 221 F.2d 467; Cherhonnier v. Rafalovich, D.C.D.Alaska 1950, 88 F.Supp. 900. However, since there is an absence of Alaska case law applicable to the questions involved, it will be presumed that the law to be applied will be that of the forum. Restatement, Conflicts, § 622.
The cases most pertinent to the facts of this case are Rennekamp v. Blair, 1954, 375 Pa. 620, 101 A.2d 669, and Chapman v. United States, 5 Cir., 1952, 194 F.2d 974. The Rennekamp case involved a crash of a twin-engine private plane in the mountains of West Virginia. In an attempt to prove his case, plaintiff produced a witness who testified that just before the crash he heard the plane overhead, noticed that one of the engines was missing, saw the plane make a circle, and then heard the crash and explosion. Plaintiff also introduced the results of an inspection of the wreckage by two members of the Civil Aeronautics Administration. The court concluded that this examination showed that the left engine of the plane had failed during the plane's flight and that the pilot had prepared for a crash landing by turning on the landing lights, lowering the landing gear, and circling the area. This was all the evidence plaintiff produced concerning the pilot's negligence. Accordingly, the court affirmed the trial court's judgment n.o.v. for the defendant.
In the Chapman case, cited with approval in the Rennekamp case, a twin-engine military aircraft crashed in an attempt to make a forced landing at a commercial airport. With one engine out and the other missing, the pilot of this plane attempted to execute a left turn to come into proper alignment with one of the runways and began to lower the landing gear. At this point, the plane spun to the ground and crashed. There being no other evidence concerning the propriety in the way the pilot actually flew his plane, the court affirmed the lower court's finding of no negligence, saying 194 F.2d at page 977:
'Since knowledge must precede understanding, and understanding must precede judgment, and we cannot know, we cannot judge what was done by the pilot that he ought not to have done, what was left undone by him that he ought to have done, it is, we think, fatal to plaintiffs' claim that they were unable to discharge their burden of proof by presenting evidence as to what in those critical moments was happening to and within the plane.'
The proof in the present case, however, is more detailed.
The investigation of this aircraft after the accident revealed that the right landing gear was fully retracted into the right engine nacelle, whereas the left landing gear was crumpled under the left engine nacelle. The investigation also revealed that the flaps were extended to approximately a one-half position (Statement of Capt. Arthur L. Cole, U.S.A.F., attached to Document No. 26). Therefore, at the time the plane hit the ground, the landing gear
and the flaps
were partially extended. At the time the turn was executed, approximately 300 yards south of the point of the crash, gear and flaps were partially extended. Even with a clean configuration, a turn of itself will increase the possibility of a stall (N.T. 592, 681). A turn made with gear and flaps extended increases this possibility even further (N.T. 582), and, as testified to by defendant's expert, would not be a proper and safe maneuver under such circumstances as existed here (N.T. 595).
Considerable importance has been placed by the trial judge in the statement of Capt. Dole, who investigated the wreckage of this aircraft, since it contains the only evidence concerning the most crucial fact of this case -- the position of the landing gear and the flaps at the time the turn was executed and during the go-around. Better able to provide information of this fact would be Richard Gross and J. B. Whalen, both of whom observed the aircraft make its approach and pass over the runway. However, their statements (also attached to Document No. 26) contain no information concerning the position of the gear and flaps.
Particularly applicable to this situation is the rule that where a party (here, the United States) fails to produce witnesses within its control who presumably are best informed on the subject of investigation, especially if their relations with such party are not hostile but are friendly, so that their bias, if any, would be in such party's favor, it may be inferred that the information that would be provided would be unfavorable to such party. See Haas v. Kasnot, 1952, 371 Pa. 580, 92 A.2d 171; Wilkinson v. United Par. Serv., 1945, 158 Pa.Supper. 22, 43 A.2d 408; Wills v. Hardcastle, 1902, 19 Pa.Super. 525. If it were not for this Principle, the inferences upon which Findings of Fact 14 and 16 (with respect to the position of gear and flaps) and 23 are based would not be made by the trial judge.
Applying this rule to this case, it may be inferred that the left turn was not executed by reason of any obstacle in the path of the aircraft at the point of the turn. It may also be inferred that the gear and flaps were extended
for the purpose of making a landing, at the time the go-around was initiated one-half to three-quarters of a mile from the runway (see Finding of Fact 15).
If such were the fact, the gear and the flaps, as stated above, would be retracting, but not fully retracted, at the time the aircraft crashed. The flaps would be extended to the one-half position, as is proper for single-engine landings
(see Flight Handbook for C-47, p. 3-5, Exhibit P-9). Since this aircraft, at a normal, single-engine approach speed
will travel approximately 2880 feet during the time the landing gear is retracting (N.T. 643), it must be inferred, upon consideration of the length of the runway and the point of the crash, that the retraction of the gear was not begun until the plane was well down, if not beyond, the runway (N.T. 679). This delay in retracting the gear from the time the decision to go around was made was contrary to Air Force procedure (Flight Handbook for C-47, pp. 3-6, Exhibit P-9).
While the ultimate cause of this accident can never be know, certain acts of negligence -- namely, executing a turn with gear and flaps extended with only one engine operating and failing to retract gear and flaps upon deciding to go around -- have been found. By reconstruction of the facts and by the testimony of defendant's experts, the trial judge concludes that the operator of this aircraft, though well trained and qualified to perform a single-engine go-around (see, also, N.T. 672), was not following the correct procedure for this maneuver at this particular time. This case is distinguishable from the Rennekamp and Chapman cases, for it can be judged 'what was done by the pilot that he ought not to have done, what was left undone by him that he ought to have done.' (194 F.2d 977.) From the facts found, a legitimate inference may be drawn that the crash was caused by the adove-stated acts of negligence.
In Straight v. B. F. Goodrich Co., 1946, 354 Pa. 391, at page 396, 47 A.2d 605, at page 607, the court said:
'* * * it is not the rule that circumstantial evidence to establish negligence need exclude everything which the ingenuity of counsel may suggest as having possibly caused or contributed to the injuries or death: * * *. 'Since proof to a degree of absolute certainty is rarely attainable in any litigated factual controversy, the law requires only that the evidence as to the operative cause of the accident be enough to satisfy reasonable and well-balanced minds that it was one on which plaintiff relies.' (Citing cases.)'
See, also, Liguori v. City of Philadelphia, 1945, 351 Pa. 494, 498, 41 A.2d 563; Sweeney v. Bonacci, 3 Cir., 1949, 173 F.2d 541.
B. Amount of Recovery
There is no serious dispute that if plaintiff-administrator is entitled to recover at all, he is entitled to recover $ 50,000, the maximum allowable under Alaska law. With decedent's life expectancy at the time of the trial being 30.29 years and his earnings at or around the time of his death being at least $ 582. per month, the actual damages suffered are well in excess of $ 50,000.
C. Parties Entitled to Sue
Defendant does raise the question, however, of whether or not the four plaintiffs here are proper parties to this action. The Alaska Wrongful Death Act, 3 Alaska Comp.Laws Ann. § 61-7-3 (1955), states:
'When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, * * * the damages therein shall not exceed fifty thousand dollars, and the amount recovered, if any, shall be exclusively for the benefit of the decedent's husband or wife and children when he or she leaves a husband, wife or children, him or her surviving; * * *.'
Decedent's widow and survivor, therefore, is not a proper party to this action. This result, however, is inconsequential from the widow's viewpoint, since the amount recovered would be for her exclusive benefit under the Act.
With respect to the right of the administrator to sue, defendant argues that plaintiff's decedent was not a resident of Philadelphia County and that the issuance to the administrator of letters of administration by the Register of Wills of Philadelphia County is null and void. See 20 P.S. § 320. 301. The courts of Pennsylvania have held, however, that the granting of letters of administration by the Register of Wills is a judicial act which cannot be collaterally attacked. Zeigler v. Storey, 1908, 220 Pa. 471, 69 A. 894, 17 L.R.A.,N.S., 878; Snyder v. McGill, 1919, 265 Pa. 122, 108 A. 410; see, also, In re Freer's Estate, 1946, 353 Pa. 351, 45 A.2d 47; West v. Young, 1938, 332 Pa. 248, 2 A.2d 745; In re Estate of Brown, 1932, 105 Pa.Super. 236, 161 A. 471. The administrator, therefore, is a proper party to this action. However, for the protection of defendant, the widow will be required to approve personally the decree submitted by counsel for plaintiff in accordance with the Conclusions of Law stated below.
The right to sue of Philco Corporation and of Globe Indemnity Company is governed by the case of United States v. Aetna Cas. & Surety Co., 1949, 338 U.S. 336, 70 S. Ct. 207, 94 L. Ed. 171. Under the rule of this case, as applied to these facts, Globe Indemnity Company is entitled to sue but Philco Corporation is not.
Conclusions of Law
The trial judge makes the following Conclusions of Law:
1. The court has jurisdiction of the claims of Martin J. Vigderman, Administrator of the Estate of Harold F. Fleming, deceased, and of Globe Indemnity Company against the United States of America, and of the subject matter.
2. The court does not have jurisdiction of the claims of Emma Louise Harston (widow of the decedent) and Philco Corporation, inasmuch as they have no standing to sue in this action.
3. The decedent, Harold F. Fleming, lost his life in the crash of U.S.A.F. C-47, Serial No. 45893, in which he was a civilian passenger, at Skwentna Air Field, Alaska, on September 1, 1955, as a result of the negligent operation of the aircraft during the execution of a single-engine go-around procedure. The negligence of defendant was a substantial factor in causing the decedent's death.
4. The United States is liable for $ 50,000., the maximum amount recoverable under the Alaska Wrongful Death Act, which is to be distributed as follows:
See 33 U.S.C.A. § 933, applicable here by reason of 42 U.S.C.A. § 1651 et seq.
All requests for Findings of Fact and Conclusions of Law which are inconsistent with the foregoing are denied.
Plaintiff's counsel may submit an appropriate decree containing the approval of the decedent's widow.