Bell Aerospace Corp. v. Anderson

• Decision Date: 23 February 1972
• Docket Number: No. 6181,6181
• Citation: 478 S.W.2d 191
• Parties: BELL AEROSPACE CORPORATION, Appellant, v. Agene L. ANDERSON, Individually and as Next Friend of Laura Ann Anderson, et al., Appellees.
• Court: Texas Court of Appeals

Page 191

478 S.W.2d 191

BELL AEROSPACE CORPORATION, Appellant, v. Agene L. ANDERSON, Individually and as Next Friend of Laura Ann Anderson, et al., Appellees.

No. 6181.

Court of Civil Appeals of Texas,

El Paso.

Feb. 23, 1972.

Rehearing Denied March 29, 1972.

Scott, Hulse, Marshall & Feuille, J. F. Hulse, Charles R. Jones, El Paso, for appellant.

Kemp, Smith, White, Duncan & Hammond, William Duncan, Jack Ratliff, El Paso, for appellees.

OPINION

RAMSEY, Chief Justice.

This is a products liability case. Agene L. Anderson, individually and as next friend of her minor children, Plaintiffs-Appellees, brought suit against Bell Aerospace Corporation, Defendant-Appellant, for damages resulting from the death of her husband, Major Robert L. Anderson, who was the father of their minor children. The jury awarded damages in the amount of $600,000.00 and judgment was entered by the trial Court for $481,255 .00, being the amount prayed for by Plaintiffs. We affirm.

The deceased, Robert L. Anderson, was a Major in the U.S. Army and a helicopter pilot. He received a helicopter from the Defendant at Fort Worth, Texas, for the purpose of ferrying it to California. He left Fort Worth at approximately 11:00 o'clock, A.M., on November 9, 1965, and at approximately 12:15 o'clock, P.M., on the same date, the plane crashed near Morgan Mill, Texas, resulting in Anderson's death. Witnesses in the vicinity of the crash described it as occurring in foggy weather, with the helicopter exploding or disintegrating before plummeting to the ground.

Plaintiffs' theory of the cause of the accident was that 'mast bumping' was initiated by failure of a wire drive in the servo mechanism, which in turn caused the mast to be 'knocked out of round' and broken in half, thereby allowing the main rotor blade to slice into the fuselage and causing the explosion and subsequent crash. Defendant's theory was that the crash was caused by pilot error, and disregarding such error, that there was no evidence or insufficient evidence to support the Plaintiffs' theory that the wire drive had failed particularly since the wire drive on the mechanism containing it was never produced during the trial.

Thirty-three special issues were submitted. The jury found that the wire drive in the helicopter was in a defective condition when delivered; that the wire drive was unreasonably dangerous when delivered which was a proximate cause of death; that Defendant's failure to provide a dual spool or redundancy system in the servo rendered the helicopter unreasonably dangerous which was a proximate cause of death; that the main rotor mast was in a defective condition when delivered and was unreasonably dangerous and a proximate cause of death; that the deceased was not flying in instrument flight rule conditions; that the deceased did not permit the aircraft to enter an unusual attitude and there was no negligence as to the aircraft's attitude; that the deceased did not permit the aircraft to enter flight conditions in excess of its operational limitations and that the deceased did not fly into weather conditions for which he was not qualified.

Defendant assigns eighty-three points of error. Points of error numbered 1 through 12 are 'no evidence' and 'insufficient evidence' points relating to the alleged defectively manufactured and designed parts of the aircraft and dangerous qualities attributable by Plaintiffs' allegations. Points of error numbered 13 through 23 complain of the insufficiency of the evidence to raise an issue of defectiveness in either manufacture or design so as to sustain the Court's judgment against the Defendant. Points of error numbered 56 through 73 complain that the Court's judgment, based on the jury's findings, is so contrary to the great weight and preponderance of the evidence that it is manifestly wrong and unjust. These points of error assigned by the Defendant challenge not only the existence of any evidence, but also the sufficiency as well as the necessary probative force to support the findings of the jury on the questions presented. These points of error will be so considered.

The basic rule for considering 'no evidence' and 'insufficient evidence' points of error is contained in the article of Robert W. Calvert, 38 Tex.Law Rev. 361. In deciding 'no evidence' points, the reviewing Court should view the evidence in its most favorable light in support of the finding of fact, considering only the evidence and inferences which support the finding and rejecting the evidence and inferences to the contrary. In considering 'insufficient evidence' points, the entire record must be considered, and such points sustained if the evidence is factually insufficient to support a finding or if the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. It is the duty of this Court to consider the 'no evidence' points first.

Much of the evidence surrounding the crash is undisputed. The aircraft was new, having been received by the deceased from the Defendant the same morning of the crash. The crash occurred only about an hour and fifteen minutes after the deceased departed from Fort Worth. Weather conditions at Fort Worth were good. Foggy conditions prevailed at Morgan Mill with visibility limited from one-fourth to one-half mile. Two witnesses observed the aircraft just prior to the crash. One witness, Troy A. Medford, a garageman, noticed the aircraft as he went to lunch. His attention was attracted to it in that it was very low, just above the tree tops, making a real heavy, uneven sound like it was 'running in spurts.' Medford described it as an 'unregular sound,' and different from any helicopter that he had heard. The aircraft approached from the northeast and was within 300 to 400 yards from him. By that time, Mr. Medford was on his front porch and heard a boom. The interval of time elapsing was the time it took for Medford to walk from the middle of the street to his front door.

Another witness, Allen Fulks, a farmer, was tending his livestock when the helicopter first appeared. He testified that the aircraft broke through the fog where he was, then lifted up and went off in a northerly direction, and went out of hearing distance. Fulks walked to the top of a hill and the helicopter returned and was nearly directly over him. He thought the helicopter was going to land. Fulks testified that the aircraft was going south. He testified that the aircraft went a few yards south and then exploded in the air and crashed. He testified that the helicopter was traveling at a slow rate of speed. As to the attitude of the aircraft when Fulks 'normal,' and 'not tilted at any severe angle.'

A thorough and detailed examination was made of the wreckage. Defendant's employees and Army personnel testified as to the physical facts at the scene of the crash and presented numerous exhibits and technical data to the jury together with detailed drawings showing the location of the scattered wreckage found at the scene of the crash. The ultimate conclusions based upon the evidence introduced resolved themselves to the propositions that while the craft was in flight, the mast had struck back and forth against the stops thereby knocking the mast out of round and causing it to break which then caused the main rotor blade to cut into the fuselage thereby causing the fire and explosion resulting in the crash. Thus, the basic controversy resulted, being the cause of the mast bumping. The Defendant contends that it was pilot error and the Plaintiffs contend that a broken wire drive was the cause. Causation presents the principal problem.

Defendant's chief design engineer testified that the must bumping could be caused by pilot error in placing the helicopter in an unusual attitude. He also testified that the failure of the wire drive could be a cause. Further testimony was introduced not only by this witness but also by testimony from Defendant's project engineer and Defendant's assistant project engineer relating to bumping and breaking of the mast and the improbability of such occurrence in normal flight, or within thirty degrees thereof. Defendant's test pilot also testified that he did not know of anything a pilot could do 'in any semblance of normal' that would bump or break the mast. To induce must bumping, the test pilot agreed that the pilot would have to do something very abnormal or unusual.

The basic allegation to sustain Plaintiffs' cause of action related to a wire drive in the servo mechanism of the aircraft. The servo mechanism was described as similar to the steering mechanism of an automobile. This part of the aircraft was not available at the trial. Various inquiries of the witnesses did not definitely explain its absence. One of the Defendant's witnesses testified that the mechanism was destroyed by fire following the crash. Another witness, a civilian employee of the Army working at Defendant's plant in Fort Worth, did not remember whether or not anyone looked for it but believed the Defendant's laboratory reviewed the servo mechanism removed from the aircraft. Defendant's assistant project engineer, when questioned, did not remember looking for the servo mechanism and did not remember whether or not it was consumed by fire. Defendant's project engineer stated that he had not heard of anyone who had seen the wire drive and he did not know whether it was destroyed in the crash or what happened to it. The wire drive and servo mechanism forms an integral part of the control system of the aircraft. The missing mechanism was unquestionably questionably an important part of the aircraft to check in determining the cause of the crash.

The Plaintiffs called Mr. Frank Gerald Andrews as an expert witness. He described his occupation as an aviation safety consultant. He was formerly employed as an Aviation Safety Engineer for the Boeing Company in Seattle and hed been engaged in safety and accident...