McCullough v. Beech Aircraft Corp.

• Decision Date: 12 January 1979
• Docket Number: No. 75-3038,75-3038
• Citation: 587 F.2d 754
• Parties: 25 UCC Rep.Serv. 1022 Mrs. Margaret McCULLOUGH et al., Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 754

587 F.2d 754

25 UCC Rep.Serv. 1022

Mrs. Margaret McCULLOUGH et al., Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION et al., Defendants-Appellees.

No. 75-3038.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 1979.

Thomas L. Stennis, II, Gulfport, Miss., Tanner & Jahn, Richard P. Jahn, Chattanooga, Tenn., for plaintiffs-appellants.

W. Scott Welch, III, Jackson, Miss., for Cont. Motors Corp.

William E. Suddath, Jr., Jackson, Miss., for Beech Aircraft.

Appeal from the United States District Court For the Southern District of Mississippi.

Before BROWN, Chief Judge, AINSWORTH and VANCE, Circuit Judges.

VANCE, Circuit Judge.

Stanley H. McCullough, an experienced military pilot active in the army reserve, was killed when the aircraft he was flying crashed near Camp Shelby, Mississippi on March 31, 1967. ¹ Colonel McCullough's widow and children brought suit for his wrongful death against Beech Aircraft (Beech), the manufacturer and original seller of the aircraft, and Continental Motors Corporation (Continental), the manufacturer of the engine and related parts. The case was tried before a jury in May 1975. At the close of plaintiffs' proof, the district court granted a directed verdict in favor of Continental. The question of Beech's liability The aircraft in which Colonel McCullough died was a single engine general aviation aircraft known as a Musketeer Model A23A. It was owned by Chattanooga Aviation, Inc. but, at the time of the fatal crash, was rented to the United States Government for use by U. S. Army reservists. Colonel McCullough was flying the airplane to the National Guard Camp at Camp Shelby when he crashed.

was submitted to the jury, which returned a verdict for Beech. On appeal, appellants seek a new trial as to both Beech and Continental alleging that the district court erred in granting a motion for directed verdict in favor of Continental and that the instructions to the jury were so erroneous as to require a new trial with regard to Beech.

The circumstances surrounding the crash were established primarily by circumstantial evidence. No one saw the accident or survived the crash. Four Mississippi National Guard employees at Camp Shelby, however, observed the plane flying overhead immediately before it crashed and testified that the engine was running erratically, sputtering and cutting in and out.

An on site investigation of the crash was conducted by the Federal Aviation Administration (FAA), and various components of the Musketeer aircraft were inspected by army examiners. The investigation established that, at the time of impact, the left fuel tank was virtually full of fuel but the right tank was empty. ² The fuel selector valve was positioned on the right tank. The fuel pressure gauge read zero, which would indicate that no fuel was being pumped to the engine. The army examiners concluded that "there was insufficient fuel available to maintain proper engine operation requirements just prior to impact," and also found "no evidence of defects or conditions that could have caused engine malfunction" except insufficiency of fuel.

Appellants sought to establish that the proximate cause of the accident was an improperly designed fuel system that lacked adequate instructions on its use during an emergency. Appellants contend that they established a case against both Beech and Continental for negligent design, manufacture, and failure to warn; for breach of the implied warranty of fitness; and for strict liability in tort. ³

The Musketeer Model A23A had two fuel tanks, each holding approximately thirty gallons of fuel. The pilot drew fuel from an individual tank by positioning the fuel selector valve on either the left or the right tank. ⁴ The fuel system was designed so that during normal flight more fuel was pumped from the selected tank than the engine consumed. Excess fuel from both tanks was circulated and returned only to the left tank regardless of the tank from which it originated. ⁵

The Owners' Manual, which was furnished with the airplane by Beech, explained the fuel system as follows:

The fuel selector valve is located on the floor ahead of the trim and flap controls. Always bear in mind that the engine-driven fuel pump returns excess fuel to the left hand fuel tank. When both tanks are full, provide space for the returned fuel by using fuel from the left hand tank for the first 15 minutes before In Section II of the manual, Operation Check List, the pilot is instructed to "(u)se 15 gallons from the left tank first; thereafter, select fuller tank." The same instruction is contained in the Pilot's Check list that remained in the aircraft at all times:

drawing fuel from the right hand tank. After that, use fuel from the fuller tank. ⁶

BEFORE START CHECK

8. Set fuel selector valve. Use 15 gallons from left tank first; thereafter, select fuller tank.

The placard at the fuel selector valve also instructed the pilot to "USE 15 GAL FROM LEFT TANK FIRST."

The Directed Verdict for Continental

In deciding whether to grant a directed verdict, a court must consider all the evidence in the light and with all reasonable inferences most favorable to the party who opposes the motion. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). If the evidence is of "such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury." Id. at 374. Drawing all reasonable inferences in the light most favorable to the party opposed to the motion, we find that the directed verdict in favor of Continental was correctly granted. Wansor v. George Hantscho Co., 570 F.2d 1202, 1207 (5th Cir. 1978); Callon Petroleum Co. v. Big Chief Drilling Co., 548 F.2d 1174, 1176 (5th Cir. 1977).

Appellants contend that Continental is liable because it shared responsibility and prescribed adjustments for some components controlling the smooth operation of the engine. They proved primarily that conflicting versions of a Continental engine manual were published ⁷ and that a service bulletin was issued approximately one year before the crash.

The Continental engine manual indicated that Continental did not make the decision to return excess fuel only to the left tank. The manual specified the rate of return, but the placement of the fuel return line was the responsibility of the aircraft's manufacturer. Although the manual in which the return rate was incorrectly described as three gallons per hour was not in evidence, testimony to that effect was before the jury. No evidence, however, showed that Colonel McCullough had seen either the accurate or the inaccurate manual, and certainly no evidence indicated that he was misled by the manuals. Appellants were required to produce more than this scintilla of evidence to justify submitting the question to the jury. Boeing Co. v. Shipman, supra.

The service bulletin on which appellants relied warned that

many instances of erratic idle and poor throttle acceleration response have been traced to maladjustment of the fuel metering system.

The bulletin recommended a five-step fuel injection system adjustment procedure to eliminate these difficulties. Continental sent the bulletin to all Continental aircraft parts distributors, dealers, engine owners, and repair agencies. Unlike the FAA airworthiness directives, also cited by appellants, that enumerated particular widespread defects and required them to be remedied within a specified period of time, the Continental service bulletin was distributed merely to assist persons inspecting and repairing engines. Appellants failed to demonstrate that the Musketeer flown by McCullough was subject to erratic idle and poor throttle acceleration response ⁸ or that these conditions contributed to the accident.

To establish a products liability case, a plaintiff must at least present evidence from which the jury can infer that when the defendant's product left its control it contained some sort of defect, which rendered it unreasonably dangerous, and that the defect was a substantial element in causing plaintiff's injury. Price v. Admiral Corp., 527 F.2d 412 (5th Cir. 1976); Ford Motor Co. v. Matthews, 291 So.2d 169 (Miss.1974). A defective product is one that "does not meet the reasonable expectations of the ordinary consumer as to its safety"; thus "if the seller knew of the condition he would be negligent in marketing the product." W. Prosser, Law of Torts § 99, at 659-60 (4th ed. 1971), Quoted in Ford Motor Co. v. Matthews, supra, at 172. In this case, appellants have failed to show that the engine components supplied by Continental were defective in design or in manufacture when they left its control or that a defect in the components was a proximate cause of Colonel McCullough's injuries. Reasonable and fair-minded persons could conclude only that appellants did not establish Continental's liability. Boeing Co. v. Shipman, supra. The directed verdict in favor of Continental was properly granted.

The Instruction as to Beech's Liability

Appellants argue that the instructions given by the district court constitute a directed verdict in Beech's favor. Specifically, they claim that thirty different errors were committed by the district court. ⁹ Although we have considered every contention, we will discuss only the contentions that raise substantial questions.

Because the manner of giving jury instructions is a procedural matter rather than a substantive one, it is governed by federal, not state law. Houston v. Herring, 562 F.2d 347 (5th Cir. 1977); Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.), Cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974). In examining a trial court's jury instructions, we consider the charge as a whole. A technical imperfection does not occasion reversal when it is part of a charge that otherwise adequately instructs the jury on the...