Boeing Airplane Company v. Brown

• Citation: 291 F.2d 310
• Decision Date: 22 May 1961
• Docket Number: No. 16854.,16854.
• Parties: BOEING AIRPLANE COMPANY, a Delaware Corporation, Appellant, v. Virginia BROWN and Albert K. Brown, Jr., by his General Guardian, Virginia Brown, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

291 F.2d 310 (1961)

BOEING AIRPLANE COMPANY, a Delaware Corporation, Appellant, v. Virginia BROWN and Albert K. Brown, Jr., by his General Guardian, Virginia Brown, Appellees.

No. 16854.

United States Court of Appeals Ninth Circuit.

May 22, 1961.

Holman, Mickelwait, Marion, Black & Perkins, J. Paul Coie, and H. Weston Foss, Seattle, Wash., for appellant.

Miracle, Treadwell & Pruzan, Hugh Miracle and Howard P. Pruzan, Seattle, Wash., for appellee.

Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

This wrongful death action is an out-growth of the explosion and crash of a military airplane over Tracy, California, on February 16, 1956. The plane was a B-52 jet bomber manufactured by Boeing Airplane Company and delivered to the United States Air Force on December 19, 1955. Major Albert K. Brown, Sr., a member of the crew, lost his life in the accident. He left a minor son in whose behalf this action was brought against Boeing. The United States District Court, Western District of Washington, Northern Division, had diversity jurisdiction. 28 U.S.C.A. § 1332.

After a nonjury trial judgment was entered for plaintiff in the sum of $26,000. Boeing appeals, contending that the findings of fact do not support the conclusion of law that Boeing is liable, the findings of fact as to negligence and causation are clearly erroneous, inadmissible evidence was received, and there was supervening independent negligence by the United States Air Force which relieved Boeing from liability.

The explosion which resulted in the loss of the bomber was caused by a malfunction of the right front alternator drive with which the airplane was equipped. An alternator is a device for the generating of alternating electric current. The operating requirements of the B-52 bomber necessitate the use of four alternators on each plane. The energy needed to run each alternator is supplied by a turbine type drive, powered by air admitted through a duct by the forward motion of the airplane.

In connection with the development and manufacture of the B-52 bomber for the Air Force, Boeing solicited reputable manufacturers to submit proposals for the design and manufacture of an alternator drive. The drive to be designed and manufactured was required to meet detailed performance specifications prepared by Boeing and approved by the Air Force. The proposal submitted by Thompson Products, Inc., of Cleveland, Ohio, was found the most acceptable. In 1951 that company was awarded a contract to build and test three test alternators according to the specifications referred to above.

Further design work and preliminary testing carried on by Thompson under this contract continued until October 1953. That company then undertook extensive "qualification" testing of the alternator drive, in accordance with the provisions of its contract with Boeing. The latter company and the Air Force maintained constant observation during these testing programs. While the qualification testing was not completed until the fall of 1955, it was far enough along so that Thompson was awarded a production contract in 1954. Each individual alternator drive manufactured under the production contract was extensively tested by Thompson under the observation of Air Force personnel. As each such unit was delivered to Boeing it underwent additional testing and inspection by Boeing under Air Force monitoring.

Among the alternator drives so manufactured and tested by Thompson was serial No. 81. This drive was installed in bomber No. 384, which was delivered to the Air Force on December 19, 1955. It was the malfunctioning of this particular drive which was found to have caused the airplane crash here in question. During the fatal flight of bomber No. 384 the drive's turbine wheel went into excessive overspeed and disintegrated. Portions of the turbine wheel penetrated a forward body tank causing fuel to leak and ignite. The bomber thereupon exploded and crashed.

Appellant contends that the findings of fact do not deal with the duty of care of a manufacturer which has incorporated in the article which it sells a component part designed and manufactured by another. That duty, appellant argues, is to exercise reasonable care in ascertaining whether there is a defect inherent in the design and manufacture of the component. The trial court, as appellant points out, made no express finding that Boeing either knew or by the exercise of reasonable care should have known of a defect inherent in the design and manufacture of the alternator drive by Thompson.

In determining the applicable law with respect to the duty of care under the indicated circumstances, it must be borne in mind that this suit was brought in the state of Washington with reference to an accident which occurred in the state of California. Whether the Washington or California law governs with regard to the duty of care therefore depends on the conflict of laws rule the courts of Washington would apply.¹

The applicable conflicts rule on this point as enunciated by the Washington Supreme Court accords with the general rule, under which the law of the jurisdiction where the accident occurred is controlling on the substantive question of liability for negligence.²

The rule in California, where this airplane crash occurred, is that a manufacturer which buys and installs in its product components fabricated by another is subject to the same liability as though it were the manufacturer of the component. Dow v. Holly Mfg. Co., 49 Cal.2d 720, 725-728, 321 P.2d 736, 739-741. It is thus chargeable with the duty to exercise reasonable care in the design and construction of the component as well as in the testing and inspecting of the particular component which is installed in its manufactured product.

It follows from what is said above that it is immaterial, in so far as Boeing's liability is concerned, that the component which failed and caused the crash was designed and manufactured by Thompson. If Thompson failed to exercise reasonable care in the design and manufacture of that component, or if Thompson or Boeing or both failed to exercise reasonable care in inspecting or testing the component, or if Boeing failed to exercise reasonable care in installing the component in the B-52 bomber or in warning the Air Force of any known defect therein, Boeing is liable for damage proximately caused thereby.

On the question of negligence, the ultimate finding made by the trial court was that Boeing was negligent in designing, manufacturing and assembling the airplane with a defective and inadequate alternator drive and in supplying and delivering the airplane for use as it was then constructed, knowing it would be flown in such condition.

Having in view the applicable rule with regard to the liability of manufacturers, as discussed above, we believe this finding adequately supports the trial court's conclusion that Boeing is liable on the theory of negligence.

The next question presented is whether the findings of fact charging Boeing with that negligence which was a proximate cause of the crash are clearly erroneous.

No evidence was introduced tending to show that the Boeing or Thompson employees engaged in the designing, manufacture, testing, inspection or installation of alternator drive No. 81 were incompetent, or that insufficient time or inadequate facilities were devoted to this work. Appellee undertook to prove instead that the explosion was caused by defects in the alternator drive, which defects were inherent in the design of the drive. Had reasonable care been exercised, appellee contends, these defects would not have inhered in the design, and in any event their presence should have been detected by the exercise of reasonable methods of inspection.

The alleged defects most strongly relied upon as evidencing appellant's failure to exercise reasonable care had to do with the speed controls of the alternator drive and the manner in which the turbine wheel was guarded. The trial court found appellant negligent in regard to both. It was found in effect that the turbine wheel of the Thompson drive went into excessive overspeed and disintegrated because the Thompson drive "did not have structural controls of the amount of power intake sufficient to control the speed of the wheel" or adequate to avoid overspeeding and bursting of the wheel. The court also found that the disintegrating wheel would not have pierced the fuel tank and caused an explosion were it not for the "thin and inadequate aluminum shroud" covering the turbine wheel. It was further found that these defects were inherent in the design and were not caused by improper maintenance or by improper personal acts or omissions by those flying the plane.

Appellee produced two expert witnesses, each of whom testified that the devices designed to regulate the admission of air to the turbine wheel and so control the speed of the wheel were structurally inadequate. The inadequacy, they testified, arose primarily from the fact that neither the normal nor the overspeed control system was located on the turbine wheel or the high speed shaft to which it was joined. Both controls were attached instead to a relatively slow speed shaft in the gear train which led from the turbine wheel to the alternator. These witnesses expressed the opinion that because of the remoteness of the speed controls from the turbine wheel, any accidental disconnection between the wheel and its high speed shaft from the rest of the gear train would permit the wheel to accelerate without control.

Appellee's expert witnesses also expressed the view that the danger they foresaw from this remote location of the controls could have been minimized by strengthening the gear train to prevent possible failure in that area. In addition they discussed the difficulties experienced with bearing failures. According to them, such failures increase vibration and produce internal stresses...