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WEISSMAN v. PRASHKER (ET AL. (11/14/61)

November 14, 1961

WEISSMAN
v.
PRASHKER (ET AL., APPELLANT).



Appeal, No. 237, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, April T., 1959, No. 3540, in case of Ruth W. Weissman, individually and as administratrix of estate of Harold B. Weissman, deceased, v. Goldie B. Prashker, executrix of estate of Nathan Prashker, deceased, et al. Judgment affirmed.

COUNSEL

H. A. Robinson, with him Dickie, McCamey, Chilcote & Robinson, for appellant.

William H. Eckert, with him Samuel Kaufman, Donald C. Winson, and Eckert, Seamans & Cherin, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Musmanno

[ 405 Pa. Page 227]

OPINION BY MR. JUSTICE MUSMANNO.

On October 5, 1953, Nathan Prashker, president of the Choice Embroidery & Laces, Inc., took off from the Allegheny County Airport for Cleveland in a single engine Beechcraft Bonanza plane. The plane never reached its destination. It crashed some eight miles from the Airport in Forward Township, killing the

[ 405 Pa. Page 228]

    pilot and its sole passenger Harold B. Weissman. Ruth W. Weissman, widow, and administratrix of the estate of Harold Weissman, brought an action in trespass for wrongful death against the estate of Nathan Prashker and the Choice Embroidery & Laces, Inc., charging Prashker with negligence in the operation of the aircraft. The jury returned a verdict for the plaintiff in the sum of $100,000. Judgment was entered on the verdict and affirmed by a court en banc in the Court of Common Pleas of Allegheny County.

Execution attachment then issued against the Federal Insurance Corporation, successor to the United States Guaranty Company, which had written a policy of insurance on the pilot and owner of the plane in the sum of $150,000. The defendant insurance company filed an answer denying liability because of an asserted violation by the pilot of terms and conditions in the policy.

On issue joined the case was tried by Judge O'BRIEN of the Court of Common Pleas of Allegheny County without a jury. He found that the insurance company had failed to sustain the burden of proof that there had been a violation of the exclusionary provisions in the policy. The defendant filed motions for a new trial and judgment n.o.v., which were refused by the court en banc, and this appeal followed.

In order to determine whether the action of the pilot Prashker nullified the insurance policy issued by the garnishee-defendant, it is necessary briefly to reconstruct the fateful flight and its tragic termination. Many airplane crashes remain inexplicable mysteries. There are no survivors and the aircraft itself has been metamorphosed into shapeless masses of twisted metal, macerated fabric, splintered wood and piteous bodies from which one cannot dig out the story as to what caused the disaster. In this case, however, the story of what happened from the moment the plane started

[ 405 Pa. Page 229]

    down the runway until the instant of the last despairing cry of the pilot vainly seeking help as he fell from the clouds has been recorded with absolute certainty and unambiguity, as will quickly be seen.

When Prashker prepared to take off at 12:09 p.m., October 5, 1953, he looked out upon excellent flying weather. He had an ample ceiling of 1800 feet and a horizontal visibility for three miles. Nothing obtruded to impede a normal and successful flight to Cleveland. Ivan L. McCafferty, the senior airport traffic controller at the Allegheny County Airport, testified that he watched the plane make an excellent ascent and then, following it with his eye, he noted that in two or three minutes it had disappeared into the blue distances.

Thirteen minutes later, however, a distress call from the plane broke into the two-way radio. Prashker was reporting that, at an altitude of 2300 feet, he was losing visibility, but that he was climbing to get above cloud formations which had closed in on him. The control tower informed him that the "last tops" in that area rose to 3800 feet and warned him that if he continued to climb, he should remain clear of all air traffic lanes.

At that moment the Greater Pittsburgh Airport radioed that a jet plane had just taken off and was climbing to 33,000 feet in order to get above the clouds. McCafferty transmitted this information to Prashker who radioed back that he was already in the " stuff." Since Prashker was neither equipped nor trained to fly by instruments, this meant he was flying blindly. McCafferty requested his position and Prashker replied that he did not know, adding that the last time he could ascertain his whereabouts he was over the city. McCafferty asked him if he wanted to return ...


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