Aero Enterprises, Inc. v. American Flyers, Inc.

• Decision Date: 03 November 1958
• Docket Number: 3628.,Civ. A. No. 3658
• Citation: 167 F. Supp. 239
• Parties: AERO ENTERPRISES, INC., and Delores Senn, Individually and as Next Friend for John Edward Senn and Kathy Anita Senn, Minors, Plaintiffs, v. AMERICAN FLYERS, INC., a Corporation, and The United States of America, Defendants. Joanne Mae SCHULTETUS, a widow, Plaintiff, v. AERO ENTERPRISES, INC., a Corporation, and The United States of America, Defendants.
• Court: U.S. District Court — Northern District of Texas

167 F. Supp. 239

AERO ENTERPRISES, INC., and Delores Senn, Individually and as Next Friend for John Edward Senn and Kathy Anita Senn, Minors, Plaintiffs, v. AMERICAN FLYERS, INC., a Corporation, and The United States of America, Defendants.

Joanne Mae SCHULTETUS, a widow, Plaintiff, v. AERO ENTERPRISES, INC., a Corporation, and The United States of America, Defendants.

Civ. A. Nos. 3658, 3628.

United States District Court N. D. Texas, Fort Worth Division.

November 3, 1958.

Harris, Anderson, Henley & Rhodes, Dallas, Tex., for plaintiff Schultetus and American Flyers, Inc.

McDonald, Sanders, Nichols, Wynn & Ginsburg, Fort Worth, Tex., for plaintiff Senn.

Crowley, Wright, Miller & Garrett, Fort Worth, Tex., for Aero Enterprises, Inc.

Heard L. Floore, U. S. Atty., Clayton Bray, A. W. Christian, Asst. U. S. Attys., Fort Worth, Tex., W. A. Crawford, Jr., Regional Atty., Civil Aeronautics Administration, Washington, D. C., for the United States.

DANIEL HOLCOMBE THOMAS, District Judge.

On April 9, 1957, around the noon hour, with "visibility unlimited", a Cessna 170 aircraft and a Cessna 140 aircraft collided over Meacham Field, Fort Worth, Texas. The planes were owned and operated by civilian flying schools, and each plane was occupied by an instructor and a student. All occupants were killed. In order that the factual situation may be thoroughly understood, a diagram of the runways, control tower, and adjacent structures, is reproduced below, together with air traffic pattern of Runway 13.

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The Cessna 140 trainer was owned and operated by Aero Enterprises, Inc., and was occupied at the time of the collision by instructor Senn and student pilot Chambers. The Cessna 170 trainer, owned and operated by American Flyers, Inc., was occupied at the time of collision by instructor Schultetus and student pilot Rattunde.

The widow of instructor Schultetus, on behalf of herself and minor child, is suing Aero Enterprises, Inc., for the alleged negligence of its employee, instructor Senn; and is also suing the United States, under the Federal Tort Claims Act, for the alleged negligence of the employees of Civil Aeronautics Administration, Department of Commerce, the agency of the United States operating the control tower at the field.

The widow, children, and partially dependent mother of instructor Senn, and Senn's employer (Aero Enterprises) are suing American Flyers, Inc., for the alleged negligence of latter's employee, instructor Schultetus; and are also suing the United States for the alleged negligence of its employees in the control tower.

In addition to attacking jurisdiction, the United States has filed cross-claims in both suits, and appropriate cross-claims have also been filed by the companies operating the respective planes. A compensation insurance carrier has intervened.

Jury trial was waived by all parties entitled thereto, and the consolidated suits came on for hearing before the court.

General Findings of Fact

At the time of the collision, Aero Enterprises, Inc., and American Flyers, Inc., were operating flight training schools at Meacham Field, which is owned by the City of Fort Worth, Texas. (Prior to the development of Carter Field, Meacham had been the commercial landing field at Fort Worth). The control tower at Meacham is operated by the Civil Aeronautics Authority, an agency of the United States. The special rules and regulations applicable at Meacham are established by the management of the Field (Aviation Director of the City of Fort Worth) with the assent of the Civil Aeronautics Board, an agency of the United States.

The complement of the control tower at Meacham is three men. At noon on April 9, the chief operator was at lunch. The operator next in rank was in charge of the tower and was handling the air traffic, including clearings for departures and landings. The second man on duty was handling the ground traffic. The third man on duty had just come to work in the tower that day and was observing. (He had had previous experience in control tower operations.) The tower was equipped with the usual devices, including two-way radio and light signal guns. The primary function of the control tower is to direct traffic at the airport so as to prevent accidents and to furnish information to that same end.

The planes involved in the collision were dual control planes. It was stipulated that any negligence on the part of the student pilot in either plane would be imputable to his instructor, which, in turn, would be imputable to the respective employer. Senn was a licensed pilot and a licensed instructor, employed on a part-time basis by Aero Enterprises and regularly employed as an inspector at the Convair plane factory in Fort Worth. He had been operating aircraft on and around Meacham Field for about two years. The student accompanying him had accumulated only a few flying hours. Schultetus was a licensed pilot with considerably less experience than Senn, but he had served in the Air Corps during World War II. The student accompanying Schultetus had received his primary flying license.

Around noon on April 9, when Senn reported to Aero Enterprises, he was assigned to take student pilot Chambers up in the Cessna 140 (N2098N) to practice landings and take-offs. From the time the N2098N was cleared by visual light signal for the take-off on Runway 13 until its collision with the Cessna 170 (a matter of minutes), its pattern was the counter-clockwise pattern prescribed. Its altitude was 600 feet above ground level, or 1,300 feet above sea level, also as prescribed. The plane's radio equipment was not in operation; but there was no requirement that it be in operation, as the flight was scheduled solely as a visual training flight.

Shortly prior to the collision, another Cessna 140 (22 Victor) had been cleared for take-off on Runway 13, and had become airborne. It was following the N2098N in the traffic pattern for Runway 13, and both planes were on the "downwind leg".

The Cessna 170 (also known as N3859V or 59 Victor) had been cleared to practice instrument landing approaches on Runway 17, the usual runway for practicing such landings. The plane was equipped with a two-way radio in operation at all pertinent times. Instrument landing approach practice requires that the visual range of the student be restricted to simulate "blind-flying" conditions. This restriction is accomplished by placing an orange-tinted, somewhat opaque, shield of amber polaroid plexiglass behind the windshield in the cockpit on the side (left) occupied by the student, and further by having the student don dark goggles with "blinders" on the sides. The vision of the instructor is not thus restricted, but is somewhat hindered on the left by the presence of the orange shield. In practice instrument approach procedure, even though the trainer plane is in all respects on course, it does not necessarily have to land, but may transmit "missed approach" to the control tower, and continue in flight as it executes the usual "missed approach" procedure. As the Cessna 170 (59 Victor) came toward Meacham Field from the north in line with Runway 17 on a practice instrument landing, it reported the low cone (over the range station) to the control tower.

This is the description of the events immediately preceding the accident, as given by Mr. Ellis, the tower operator in charge at the time of collision:

"The Court: Mr. Ellis, relate to me, as best you can, the communications had between you and the 170 from the time he approached the low cone until the collision. Now please give them in proper sequence and the conversations as best you can.

"A. Cessna 5-9 Victor reported the low cone or range station. My reply was `Roger, 5-9 Victor. Clear for practice low approach. Traffic, Cessna 140 east of the field downwind from runway 1-3.' The aircraft continued to approximately a mile and a half north of the field. At that time I called 5-9 Victor and my approximate statement was, `5-9 Victor, traffic, Cessna 140 downwind east of the field for runway 1-3. Do you have him in sight?' 5-9 Victor's reply was, `Roger, have him in sight.' I continued to observe the aircraft, and when 5-9 Victor was approximately over the middle marker he started a climbing left turn at the same time transmitted, `5-9 Victor, missed approach.' I replied, `5-9 Victor, traffic, Cessna 140 crossing in front of you.' His reply was, `5-9 Victor, Roger.'

"I observed the two aircraft until the 170 appeared to have passed the 140, and then I turned my attention to the Bonanza" a private plane approaching from the west.

"The Court: Go ahead.

"A. I cleared the Bonanza to land when Mr. Selby the new assistant in the tower called my attention to the fact that the two aircraft had collided."

Other witnesses testified that the Cessna 170 (5-9 Victor) approached the field from the north in a gradual descent, flying at an altitude of approximately 400 feet above ground level, which is correct for low approach, and at a speed of approximately 90 m. p. h., in the control pattern for Runway 17. The Cessna 140 (N2098N or 98N) was flying at an altitude of approximately 600 feet above ground level in the control pattern for Runway 13, and was approaching the field in level flight from the southeast on the "downwind leg." When the Cessna 170 (59 Victor) was approximately over the middle marker having transmitted "missed approach", it began a climbing left turn at an angle of approximately 15° in a clockwise direction. (The general pattern for the field was counterclockwise.) There was no rule against such a maneuver, if traffic conditions permitted, and it was often executed. The general pattern for "missed approach" procedure is to start climbing to an altitude of 2,000 feet on south course within 20 miles of the field. There was testimony that in actual practice certain buildings surrounding the airport made it...