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VIGDERMAN v. UNITED STATES

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


July 31, 1959

Martin J. VIGDERMAN, Administrator of the Estate of Harold F. Fleming, Deceased and Philco Corporation and Globe Indemnity Company, in their own right and on behalf of Martin J. Vigderman, Administrator of the Estate of Harold F. Fleming, Deceased, and Emma L. Fleming
v.
UNITED STATES of America

The opinion of the court was delivered by: DUSEN

The trial judge makes the following Findings of Fact:

1. On September 1, 1955, plaintiff's decedent, Harold F. Fleming, 38 years of age, was an employee of Philco Corporation and had been assigned by that corporation to perform services for the United States Air Force in Alaska, pursuant to the terms of a contract entered into by the United States Air Force and Philco Corporation.

 2. On September 1, 1955, plaintiff's decedent, in the course of his employment, was one of seven passengers aboard a U.S.A.F. C-47 airplane, which departed at 1906 A.S.T. from the Air Force Base at Elmendorf, Alaska, with a crew of five, on a non-stop flight to Nome, Alaska. The flight was estimated to take three hours and twenty minutes and to cover 472 nautical miles.

 3. At the time the aircraft departed, the weather conditions at Elmendorf Air Force Base were as follows: visibility 15 miles; scattered clouds at 4,500 feet; broken clouds at an estimated 9,000 feet; broken clouds at 20,000 feet; wind calm. The enroute weather forecast was favorable for a V.F.R. flight, *fn1" although instrument flight regulation were to be followed for training purposes. The aircraft was cleared for 11,000 feet on Amber Airway 1.

 4. At the time the aircraft departed from Elmendorf Air Force Base, it was in good and safe operating condition. It carried 800 gallons of fuel, sufficient to keep it airborne for eight hours, and its gross weight was 26,450 pounds.

 5. The aircraft was a two-engine aircraft manufactured by Douglas Aircraft Corporation, Model VC-47-D, Serial No. USAF 45893, and was accepted from the manufacturer during the fiscal year 1945.

 6. The pilot and commander of the aircraft was Major Anthony W. Am Rhein, U.S.A.F. The so-pilot was Captain Robert C. Wilson, U.S.A.F. Major Am Rhein was fully qualified to command and pilot this type aircraft in accordance with the strict qualifications required by the Air Force in Alaska as of September 1, 1955.

 7. At 1915 A.S.T., the aircraft reported over Susitna Intersection, its first check point, at 6,000 feet, climbing, and estimated Skwentna Radio Range at 1935 A.S.T. At 1933 A.S.T. the aircraft reported over Skwentna at 11,000 feet, estimating Puntilla Homing Beacon at 1940 A.S.T. At 1937 A.S.T., this last estimate was revised to 1950 A.S.T.

 8. At 1955 A.S.T., when it was approximately 45 miles west of Skwentna at an altitude of 11,000 feet, the aircraft advised that, because of a backfire in its left engine, it was making a 180-degree turn and requested clearance back to Elmendorf Air Force Base. Anchorage ARTCC granted clearance and advised that the aircraft maintain 11,000 feet via Amber Airway No. 1. From this time on, the operator of the aircraft was confronted with a critical situation.

 9. At 1956 A.S.T., the aircraft reported that it would maintain 11,000 feet to Skwentna but would take a lower altitude after passing Skwentna. Anchorage ARTCC issued new clearance to the aircraft to descend to and to maintain 5,000 feet after passing Skwentna.

 10. At 2000 A.S.T., the aircraft advised that it was estimating Skwentna Radio Range Station at 2010 A.S.T. At 2009 A.S.T., this estimate was revised to 2015 A.S.T. At 2011 A.S.T., the aircraft advised Skwentna Radio Range Station that it was going to land at Skwentna Air Field. Anchorage ARTCC issued immediate clearance for this approach. The aircraft further advised that its radio signals were fading in and out, but it had the Skwentna Airport Beacon in sight. At 2017 A.S.T., the aircraft reported that it was making a straight in approach landing to the east.

 11. At this time, it was twilight at Skwentna Air Field and the weather conditions were as follows: broken clouds at an estimated 12,000 feet; broken clouds at 18,000 feet; visibility 20 miles; barometric pressure 29.09; temperature 46degrees F.; dew point 45; wind calm.

 12. There was no other aircraft in the traffic pattern or in the immediate vicinity of the airstrip, and no aircraft occupied any portion of the runway.

 13. Skwentna Air Field is located between the Yentna and the Skwentna Rivers at a point near their junction and is approximately 65 miles from Elmendorf. On September 1, 1955, it had one hard-packed, gravel-surfaced runway, which ran approximately northwest by southeast and was 3,500 feet in length and 150 feet wide. Its navigational aids, which were in operation, consisted of a radio range, an SBRA2 range, air/ground; rotating beacon light; illuminated windsock; and range, obstruction, boundary threshold and runway lights. The airfield was not equipped with a control tower and had no crash equipment available. The surrounding terrain was rough, but not mountainous or hilly. The filed was suitable for C-47 type aircraft.

 14. At approximately one to one-and-a-half miles from the west end of the runway, the aircraft was at an altitude of approximately 300 feet, was properly aligned with the runway, and was making a normal, single-engine approach, with the left propeller in a feathered position and with landing gear down and flaps no more than one-half extended.

 15. At approximately one-half to three-quarters of a mile from the west and of the runway, the operator of the aircraft initiated a go-around procedure, applying power to the right engine, which caused the plane to deviate momentarily from its course.

 16. When the aircraft passed over the runway, it was at an altitude of approximately 75 feet. Landing gear and flaps were still down. Power was still being applied to the right engine. The aircraft passed over the runway without gaining altitude. Its gross weight at this time was less than 25,750 pounds.

 17. After the aircraft passed over the runway, and at approximately one-quarter of a mile from the east end of the runway, it executed a left turn.

  18. At approximately 300 yards to the north from the point of the turn, the aircraft crashed to the ground, killing all persons aboard, including plaintiff's decedent.

 19. Upon impact, the aircraft was spun around to a southerly heading. The left propeller was still in a feathered position. The throttle controls for the left engine were in a full retarded position and the throttle controls for the right engine were in a full forward position. The right landing gear was fully retracted. The left landing gear was buried beneath the left engine nacelle. The flaps were extended approximately to a one-half position, the right and left wing flap sections having been forced to the retracted position.

 20. An aircraft of the type involved here is capable, with only one engine operating, of maintaining altitude, climbing, turning, landing, and executing a go-around procedure. Final approach airspeed for a single-engine landing should be 10 m.p.h. faster than normal, or 110 m.p.h.

 21. A turn of an aircraft reduces the lift and increases the possibility of a stall.

 22. The operator of the aircraft involved here was not negligent in attempting to land at Skwentna Air Field, nor in failing to declare an emergency, nor in initiating a go-around procedure at approximately one-half to three-quarters of a mile west of the runway.

 23. The operator of the aircraft was negligent in executing a left turn at approximately one-quarter of a mile beyond the east end of the runway while landing gear and flaps were extended.

 24. This negligence of the operator of the aircraft was the proximate cause of the crash.

 25. At the time of his death, plaintiff's decedent was receiving approximately $ 655.00 per month salary. In January of 1956, because of an overall wage adjustment and job reclassification by Philco Corporation, plaintiff's decedent would be receiving $ 582.00 per month salary. Decedent's wages were deposited in a joint bank account used by his wife at the rate of about $ 350.00 per month for food and upkeep of the house and he used less than $ 25.00 per week for his personal expenses.

 26. At the time of the trial, plaintiff's decedent would have been 41 years of age with a life expectancy of 30.29 years.

 27. Plaintiff's decedent was survived by his widow and only dependent, Emma Louise Harston (then known as Emma Louise Fleming),

 28. Emma Louise Harston, as widow and survivor of plaintiff's decedent, received $ 2,838.39 as benefits under the Longshoremen's and Harborworkers' Compensation Act, 33 U.S.C.A. § 901 et seq. and the Defense Base Act, 42 U.S.C.A. § 1651 et seq., from Globe Indemnity Company, the insurer thereunder of decedent's employer, Philco corporation.

 29. Emma Louise Fleming remarried on August 19, 1956, and has been known as Emma Louise Harston since that date.

 30. At the time of his death, plaintiff's decedent was not a resident of Philadelphia County, Pennsylvania.

 31. On August 27, 1956, plaintiff Martin J. Vigderman was appointed administrator of the Estate of Harold F. Fleming by the Register of Wills of Philadelphia County, Pa.

 Discussion

 This is a suit for wrongful death resulting from an airplane accident brought against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), 2671-2680. Since the accident and death in this case occurred in Alaska, the substantive rights and liabilities of the parties are governed by Alaska law and the rules governing burden of proof and burden of going forward with the evidence are determined by the law of the forum. 28 U.S.C.A. § 1346(b); Kendrick v. Piper Aircraft Corporation, 3 Cir., 1959, 265 F.2d 482; Knecht v. United States, 3 Cir., 1957, 242 F.2d 929. If the United States is to be held liable, therefore, it cannot be liable to plaintiff-administrator 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.

 A. Liability

 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. *fn2"

  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 *fn3" and the flaps *fn4" 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). *fn5"

 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. *fn6" 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 *fn7" 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). *fn8" 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 *fn9" (see Flight Handbook for C-47, p. 3-5, Exhibit P-9). Since this aircraft, at a normal, single-engine approach speed *fn10" 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. *fn11" 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.


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