Bratt v. Western Air Lines

• Decision Date: 15 July 1946
• Docket Number: No. 3221.,3221.
• Citation: 155 F.2d 850,166 ALR 1061
• Parties: BRATT et al. v. WESTERN AIR LINES, Inc.
• Court: U.S. Court of Appeals — Tenth Circuit

166 ALR 1061, 155 F.2d 850 (1946)

BRATT et al. v. WESTERN AIR LINES, Inc.

No. 3221.

Circuit Court of Appeals, Tenth Circuit.

May 20, 1946.

Rehearing Denied July 15, 1946.

William H. DeParcq, of Minneapolis, Minn. (Parnell Black and Brigham E. Roberts, both of Salt Lake City, Utah, and Robt. J. McDonald and Donald T. Barbeau, both of Minneapolis, Minn., on the brief), for appellants.

Forrest A. Betts, of Los Angeles, Cal., and Arthur E. Moreton, of Salt Lake City, Utah, for appellee.

Before PHILLIPS, HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Hilda Ogden Bratt and her two minor children brought this action against the Western Airlines Corporation to recover damages for the death of their husband and father, Jack Raymond Bratt, who was killed while riding as a passenger in a plane owned and operated by Western Airlines. The complaint alleged "exclusive control and management" of the plane by the Airline Company, and the negligent and careless operation and maintenance of it as the proximate cause of deceased's death. Denying negligence, the Company alleged the dangers and perils necessarily incident to air travel, and averred that insofar as such risks and hazards are beyond control of human action and could not be compensated for by exercise of the highest degree of care, they were assumed by the deceased at the time he purchased transportation on the airline. The case was submitted to the jury on the doctrine of res ipsa loquitur. A verdict was returned in favor of the Airline Company.¹ The errors assigned on appeal involve the admissibility of evidence, and the conduct of court and counsel in depriving appellants of a fair and impartial trial.

The evidence established the following undisputed facts: Flight No. 1 of the Western Airlines left the Salt Lake City Airport at about 1:05 a. m. on December 15, 1942, on its regularly scheduled flight from Salt Lake City to Los Angeles. At about 1:22 a. m., approximately three miles southeast of Fairfield, Utah, the plane crashed, killing the entire crew and thirteen passengers. The flight crew were all highly trained and qualified, and all testimony was to the effect that the air was smooth and weather conditions were favorable for the flight. It seems to be agreed that the accident was caused by a structural failure in flight. The appellee, however, specifically denies, and offered evidence to the effect that the accident was not caused by any mechanical or structural defect of the plane, or any other cause within its control.

In an attempt to show that a defective and unsafe right horizontal stabilizer of the plane was the proximate cause of the fatal accident, the appellants offered the evidence of Roland Marvin Lee, an aviation mechanic. After extensive examination and cross examination in qualifying the witness as an expert, the following question was asked by counsel for appellants: "Now taking into consideration your own knowledge and experience and the evidence that I have mentioned — the weather records, the photographs; barograph card — and assuming the testimony of Lt. Gardner sole survivor of the crash to be true, I will ask you whether or not you were able to form or express an opinion with a reasonable decree of certainty as to whether the right horizontal stabilizer and the elevator with it was the first part of the first section of this plane to fail in flight?" The Court sustained an objection to the question on the grounds that the witness was not qualified to render such an opinion, and it is this ruling which the appellant contends was erroneous.

The question called for an expert opinion in the field of aerodynamics, and the examination of the witness Lee developed the following touching his qualifications as an expert on that subject. He became interested in aviation in 1927 and since that time has owned three planes of his own; he has flown numerous types of planes, including multi-engine and twin-engine aircraft, and has approximately eleven hundred air hours to his credit. The only time he has flown a DC-3 (the type here involved) was after it was taken into the air by a qualified pilot who let him then take the controls. He has never had a commercial pilot's license, but has held a private license and now holds a student's license. In 1943 he worked eleven months for Western Airlines as an "apprentice mechanic" and is now employed as an aviation mechanic by the Thompson Flying Service. His work with Western Airlines required a general knowledge of aircraft and as a part of his duties he did general maintenance work, including inspection and repairs. He has not been certified by Federal authorities and therefore never signed any Civil Aeronautics Authority forms as an official inspector, but made them out under the supervision of a licensed "A & E". He has studied the "C. A. A." manuals and Western Airline maintenance manuals and read other literature pertaining to the operation, maintenance and construction of DC-3 equipment. He has studied aerodynamics through study courses and classroom work, having attended a class at least once a week for over two years, in addition to manuals and books published for the "C. A. B." He stated that he had studied "load factors and structural aerodynamics"; that he knew metals and had experimented with heat alloy. He also examined the wreckage of the plane at the point of the accident. Over objections of counsel, the court permitted him to describe the purpose of ailerons, stabilizers and rudders, and to discuss the various parts and structures of an airplane with reference to their purpose and function in flight. In short, the court permitted him to testify concerning all the issues in the case except to express an expert opinion as to the cause of the accident.

"A witness is an expert witness and is qualified to give expert testimony if the judge finds that to perceive, know or understand the matter concerning which the witness is to testify, requires special knowledge, skill, experience or training and that the witness has the requisite special knowledge, skill, experience or training". Restatement Model Code of Evidence, § 402. "Whether a witness called to testify to any matter of opinion has such qualifications and knowledge as to make his testimony admissible, is a preliminary question for the judge presiding at the trial, and his decision of it is conclusive, unless clearly shown to be erroneous as a matter of law." Stillwell Manufacturing Co. v. Phelps, 130 U.S. 520, 9 S.Ct. 601, 603, 32 L.Ed. 1035; see also Montana R. Co. v. Warren, 137 U.S. 348, 11 S.Ct. 96, 34 L.Ed. 681; Spiller v. Atchison T. & S....