Lindsay v. McDonnell Douglas Aircraft Corporation

• Decision Date: 10 May 1972
• Docket Number: No. 71-1545.,71-1545.
• Citation: 460 F.2d 631
• Parties: Shirley J. LINDSAY, Executrix of the Estate of John Douglas Lindsay, Deceased, Appellant, v. McDONNELL DOUGLAS AIRCRAFT CORPORATION, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

460 F.2d 631 (1972)

Shirley J. LINDSAY, Executrix of the Estate of John Douglas Lindsay, Deceased, Appellant, v. McDONNELL DOUGLAS AIRCRAFT CORPORATION, a Corporation, Appellee.

No. 71-1545.

United States Court of Appeals, Eighth Circuit.

Submitted March 16, 1972.

Decided May 10, 1972.

COPYRIGHT MATERIAL OMITTED

Charles E. Gray, C. Marshall Friedman, Gray, Friedman & Ritter, St. Louis, Mo., for appellant.

Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Mo., for appellee.

Before GIBSON, HEANEY and ROSS, Circuit Judges.

GIBSON, Circuit Judge.

This is a suit in admiralty brought under the Death on the High Seas Act, 46 U.S.C. § 761 et seq. The plaintiff, Shirley J. Lindsay, is the executrix of the estate of her husband, John Douglas Lindsay, who met his demise while flying as a naval aviator an F4B jet aircraft manufactured by defendant McDonnell Douglas Aircraft Corporation (McDonnell). Judgment was entered for the defendant. The District Court held the plaintiff failed to prove by a preponderance of the evidence that the plane crash was caused by a design or manufacturing defect in the aircraft.¹

The aircraft involved was first flown on July 5, 1966, by a McDonnell test pilot. During the flight the cooling light came on twice indicating an overheating condition. At the second and third flights overheating also occurred. The aircraft was scheduled for delivery to the Navy on August 2, 1966; however, delivery had to be postponed because of the discovery of additional deficiencies. The aircraft was flown by a Navy pilot to Key West Naval Air Station for fleet service on August 4, 1966. The aircraft was given the standard acceptance check and a moisture separator and a pneumatic air compressor were replaced as defective. The next day, August 5, the aircraft crashed, killing Commander Lindsay and Lt. Henry E. Roy, the radar intercept officer.

The flight on August 5 was a night air intercept training mission over the Gulf of Mexico about 75 miles west of Key West, Florida and involved maneuvers which were standard flight procedures within the capabilities of the F4B. Two aircraft were involved in this exercise, a target aircraft and an attacking aircraft. Commander Lindsay piloted the attacking aircraft. The intercept consisted of two phases. The first phase was an attack from the forward hemisphere, in relation to the target aircraft, designed to utilize the F4B's Sparrow III air-to-air missile. When the aircraft was in proper attack position the forward missile was released and its completion was signaled as "Fox-1". This completed the first phase. The second phase, the reattack, was immediately instituted by making a hard turn to the reciprocal of the target's heading and then a reversing turn so as to be behind the target and heading in the same direction. This put the F4B in position for utilization of its rear, or Sidewinder, heat seeking missile.

On the fatal training flight Commander Lindsay had completed two such intercepts and had begun a third. About 42 minutes flying time had elapsed. The first phase of the third intercept had been completed. Maj. C. F. Wallace, the pilot of the target aircraft, observed the Lindsay aircraft initiate a re-attack turn, then reverse at an estimated angle of bank of 75° to 80° which angle of bank was reduced some 15° to 20° when it passed out of sight, apparently in the visual dead space to the rear of the target aircraft, which was flying at 6000 feet; after several minutes the target aircraft tried to initiate radio contact with Commander Lindsay and getting no response made a sharp turn and saw an orange glow on the water at a range of twelve to fourteen miles. Arriving over the scene Major Wallace saw a shrimp boat approaching the crash area from about three nautical miles away.

The captain of the shrimp boat, Leslie High, a frequent observer of military aircraft training missions, testified that he and his wife were in the cabin when he heard an aircraft make a strange noise, described as laboring, groaning or straining. He went outside and saw an airplane on fire. He described the fire as appearing large in relation to the plane and round. He watched the plane's gradual descent into the water where it impacted some two or three miles from his boat. After pulling in his nets he immediately headed toward the site of the crash. When he arrived there was no trace of the aircraft.

Several days later the Navy ran simulated tests over his boat with the after-burners of the jets in operation to determine if this was the fire which Captain High stated he had observed. He described the afterburner on the test aircraft compared to the burning Lindsay aircraft as a lightening bug compared to a bright full moon. The aircraft was never recovered.

A Naval Accident Board report listed the cause of the accident as undetermined but noted that the possibility of a material malfunction warranted strong consideration and viewed material failure as the most possible of three possible causes, pilot disorientation, stall/spin, or material failure.²

Plaintiff contends the trial court erred in not applying the doctrine of strict liability in tort as set forth in Restatement (Second) of Torts § 402-A and in failing to make necessary findings of fact pertinent under the strict liability theory. She requests us to make affirmative findings of liability on the record.

The defendant responds that the case was not tried under a strict liability theory and that the trial court's findings were adequate to sustain the judgment.

Although the plaintiff introduced evidence attempting to show a defect in the bleed air duct system and considerable emphasis was placed on this evidence, Count I of the complaint did plead a cause of action under strict liability.³ The parties by agreement tried the case under Missouri law. At oral argument we requested supplemental briefs on whether Missouri or federal law applied under the Death on the High Seas Act, and also if federal law applied, whether the doctrine of strict liability would be applicable.

Clearly, federal maritime law applies as the cause of action is created by federal law and the Act should be applied uniformly in the federal courts with exclusive jurisdiction in admiralty. The courts facing this issue have uniformly held that the Death on the High Seas Act created a federal cause of action in admiralty, where none existed before. The cause of action embraces death caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from the shore of any state and includes air travel over as well as ship travel on the high seas. Petition of the United States, 418 F.2d 264 (1st Cir.1969); D'Aleman v. Pan American World Airways, Inc., 259 F.2d 493 (2d Cir.1958); Trihey v. Transocean Air Lines, Inc., 255 F.2d 824 (9th Cir.), cert. denied, 358 U. S. 838, 79 S.Ct. 62, 3 L.Ed.2d 74 (1958); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.) cert. denied, 355 U. S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Turner v. Wilson Line of Massachusetts, 242 F.2d 414 (1st Cir. 1957); Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir.), cert. dismissed, 352 U. S. 802, 77 S.Ct. 20, 1 L.Ed.2d 37 (1956); Middleton v. Luckenbach S.S. Co., 70 F.2d 326 (2d Cir.), cert. denied, 293 U. S. 577, 55 S.Ct. 89, 79 L.Ed. 674 (1934); Pardonnet v. Flying Tiger Line Inc., 233 F.Supp. 683 (N.D.Ill.1964).

We further conclude that federal maritime law should and does apply the doctrine of strict liability in tort. Missouri likewise has adopted the doctrine of strict liability in tort, making Missouri law and federal maritime law congruent in this respect.

Missouri adopted the doctrine of strict liability in Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969). Even though Keener was not handed down until after this complaint had been filed, it clearly sets forth Missouri law on this point, and was forecast by Morrow v. Caloric Appliance Corp., 372 S.W.2d 41 (Mo.1963), dispensing with privity on implied warranties.

The rule of strict liability in tort states in Restatement (Second) of Torts § 402-A as follows:

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

"(a) the seller is engaged in the business of selling such a product, and

"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

"(2) The rule stated in Subsection (1) applies although

"(a) the seller has exercised all possible care in the preparation and sale of his product, * * *."

Furthermore, contributory negligence as ordinarily applied is not a defense to strict liability. Keener v. Dayton Electric Mfg. Co., supra and 46 U.S.C. § 766.

The Death on the High Seas Act creates a cause of action for wrongful death, 46 U.S.C. § 761 et seq., in favor of designated survivors for the death of a person "caused by wrongful act, neglect, or default occurring on the high seas" and sets the measure of recovery at a fair and just compensation. Under § 766 contributory negligence is not a defense but the doctrine of comparative negligence is applied in reducing the recovery. Jurisdiction of this action would rest in the federal district courts in admiralty. We feel this federal cause of action must follow general maritime law which in turn incorporates the general law of torts where it is harmonious with admiralty law. Cain v. Alpha S. S. Corp., 35 F.2d 717, 722 (2d Cir. 1929), aff'd on other grounds, 281 U. S. 642, 50 S.Ct. 443, 74 L.Ed. 1086 (1930); Warshauer v. Lloyd Sabaudo S. A., 71 F.2d 146, 147 (2d Cir.), cert. denied, 293 U. S. 610, 55 S.Ct. 140, 79 L.Ed. 700 (1934); Sieracki v. Seas Shipping Co., 149 F.2d 98, 100 (3d Cir. 1945), aff'd, 328 U. S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1...