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BLUMENTHAL v. UNITED STATES

December 5, 1960

Sydney H. BLUMENTHAL, Administrator of the Estate of Donald W. Eastridge, Deceased, and Philco Corporation and Globe Indemnity Company, in their own right and on behalf of Sydney H. Blumenthal, Administrator of the Estate of Donald W. Eastridge, Deceased, and Marilyn A. Eastridge
v.
UNITED STATES of America



The opinion of the court was delivered by: EGAN

The Court makes the following Findings of Fact

1. On June 4, 1954, Donald W. Eastridge was an employee of the Philco Corporation, acting as a technical representative to the Air Force pursuant to a contract between the United States and Philco, which gave him access to military or commercial transport by air as required.

 2. The accident which gave rise to this suit occurred on the return leg of a regularly scheduled Marine Corps flight from Itami, Japan to K-6, Korea and back, via K-8, Korea as a port of entry and departure (A. to I. 7; Ad. 12). The plane involved (Serial No. 126579) was a Fairchild R4Q-1, a two engine, twin boom, high wing freight-passenger carrier (sometimes known as a flying boxcar), and was attached to Marine Transport Squadron VMR-253 based in Itami, Japan.

 3. Decedent boarded the plane on June 4, 1954, at K-6, Korea, having been manifested as a passenger for this flight at the K-6 terminal (I-2). Prior to boarding the plane, decedent was provided with a parachute and Mae West life preserver and the equipment required to be attached thereto, and decedent was instructed in the use of this gear (Williams 86-89). Decedent was under orders to visit radar detachments in Japan and Okinawa (Morris 6). The plane departed K-6 at 1225 local time and arrived at K-8 at 1255 (A. to I. 8). The plane departed K-8 at 1331 bound for Itami (A. to I. 8). The distance from K-8 to Itami is about 450 miles (A. to I. 73), normal flight time in an R4Q-1 being about two hours and ten minutes (L-4), so that the plane was due to arrive at Itami about 1540. The plane was on an Instrument Flight Rules flight plan, under the control of Taegu, Korea, with designated airways from K-8 to Itami.

 4. At about 1434 while the plane was cruising at normal power setting at an altitude of 9,000 feet, in clear weather, all engine instruments reading normal (A. to I. 32), a sudden violent, inordinate vibration commenced which seemed as if it would shake the plane to pieces (Harris 185). At this time Major Badgley, the plane commander, was in the right seat and Major Maxwell, the co-pilot, was in the left seat. Sergeant Harris, the crew chief, was sitting on the left side of the cockpit behind Major Maxwell (Harris 185).

 5. Upon commencement of the vibration, Major Badgley immediately feathered the right propeller. Meanwhile, Sergeant Harris had looked out to the left engine and yelled, 'It's the left engine,' and Major Maxwell immediately depressed the left feather button (Harris 186). The two feather buttons were pressed almost simultaneously (Harris 199) and almost immediately after the commencement of the vibration. The feathering of the left propeller was not delayed pending the results of feathering the right propeller.

 6. The left engine came to a feathered position (Harris 198) and stopped turning for a short time, but the engine by this time was drooping from its anchorage so that the feathered blade position could not keep the blades from turning (Merritt 250-51). The left propeller commenced turning and the left engine and propeller fell off the plane (Harris 187).

 7. In the meantime the pilot had brought the right engine and propeller back into operation (Ad. 16) and turned the plane back towards Korea (Williams 59). The pilot alerted the crew and passengers to prepare for possible bail-out (Harris 197; Williams 43), because the plane was losing altitude.

 8. At approximately 2,000 feet, and about 10 minutes from shore (A. to I. 37, 86; Ad. 20), the bail-out commenced, with decedent going first (Williams 48). Decedent's parachute apparently opened promptly and he made a normal descent to the surface of the water. He was seen for a short time by Lieutenant Morris, a fellow passenger, being carried along the water by his parachute (Morris 14), but was not seen after that, and presumably drowned. There were 10 to 12 foot waves and winds of 25 to 30 knots at the place of the bail-out.

 9. As the asserted tort was a maritime one, occurring more than a marine league from shore, the applicable remedy for the wrongful death is the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq.

 10. All of the eleven persons on board parachuted except Major Badgley, who tried to save the passengers and the plane and who apparently was still in the plane when it crashed. Six of the ten persons who parachuted where rescued and survived. Eastridge was not among the survivors.

 11. Taegu Control obtained immediate information that the 6579 was in distress 10 minutes SE of K-3, a base on the east coast of Korea, and this information was correct (L-9). Taegu immediately notified the Rescue Control Center of the Fifth Air Force. However, a mistake was made in transmitting the message to Rescue Control *fn1" so that incorrect information as to the identity and location of the 6579 was received (L-11). Correct information was supplied Rescue Control about an hour later and it took about 3 to 3 1/2 hours to reach those who survived, during which time libellant's decedent had disappeared in the Sea of Japan. Respondent offers no reason or excuse for this conduct.

 12. On June 4, 1954, aircraft 6579 was restricted to the carriage of freight only, and accepting passengers, particularly a civilian like Donald W. Eastridge, for transportation to Japan was in violation of this restriction. (Deposition of Joseph W. Williams, Jr., Major, U.S. Marine Corps Reserve, pp. 7, 8).

 13. The R4Q-1 can operate successfully on a single engine, and if the left propeller had been successfully feathered and the left engine had remained in place, 6579 would have been capable of returning safely to K-3 (King 80, Merritt 251, 272).

 14. The vibration which shook the left engine loose from its mountings was produced by a propeller imbalance not induced by any external force or the breaking of any of the propeller blades. Despite some evidence to the contrary, proper inspection, installation and maintenance of the left engine and propeller of 6579 would have prevented this malfunction and the ineffective feathering of the propeller on June 4, 1954.

 15. The procurement, installation, maintenance and operation of 6579 was exclusively under the control of the respondent. The failure of the left propeller and loss of the left engine should not occur in the absence of negligence. Under the circumstances of this case, and particularly since aircraft and libellant were lost in the Sea of Japan more than a nautical league off K-3 Korea, the libellant is entitled to the benefit of the doctrine of res ipsa loquitur. The failure of the respondent to explain satisfactorily the malfunction of the propeller and its failure to feather and the shaking loose of the left engine and its dropping into the sea leads to the conclusion that the respondent was negligent.

 16. Donald W. Eastridge was born at Salem, Oregon, on June 8, 1927, and at the time of the occurrence was 27 years of age (Marilyn Eastridge Smith -- hereafter 'M.E.S.' 4). He had served in the Navy and was honorably discharged on July 9, 1946 (Exhibit L-13). He was a graduate of Willamette University, having been awarded a degree Bachelor of Arts in June, 1950 (Exhibit L-14). In May 1951, he became engaged to Marilyn Archibald, born August 8, 1927, and in December 1951, they were married (M.E.S. 4, 9, 10). After their marriage he continued with post-graduate courses at Oregon State University in quest of a Master's degree (M.E.S. 11). His wife worked, and he earned money as a member of an orchestra on week-ends (M.E.S. 12). These earnings went into a joint savings account. In June 1953, he left college to accept a position with Philco Corporation (M.E.S. 17). They traveled to Philadelphia, Pennsylvania, where he took certain courses and practice instructions (M.E.S. 18), and in October 1953, he received orders from the Philco Corporation sending him overseas (M.E.S. 20). He was seven months on this assignment when he lost his life (M.E.S. 43). He had planned to make a career with the Philco Corporation (M.E.S. 30).

 18. In the time that has elapsed since the fatal accident, the decedent would have earned in excess of $ 6,000 per annum, with the expectation that his earnings would have increased substantially in the future. Since his death, his widow has suffered a pecuniary loss by way of contributions. She will suffer a further loss in the future in the way of contributions and loss of inheritance.

 19. The accident to libellant's decedent in such that in the absence of negligence in the care, inspection, maintenance and repair of the plane on the part of respondent, it probably would not have happened. Furness, Withy & Co. v. Carter, 9 Cir., 1960 281 F.2d 264. Furthermore, respondent was negligent in its efforts to rescue the decedent. The neglect was that of Air Control at Taegu which radioed incorrect information to Rescue Control and to a lesser extent on the part of the latter in failing to check back, as it later did after the first attempt at rescue ...


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