D'ANNA v. United States

• Decision Date: 11 April 1950
• Docket Number: 6033,6034,6035.,No. 6032,6032
• Citation: 181 F.2d 335
• Parties: D'ANNA v. UNITED STATES (two cases). THOMPSON v. UNITED STATES. KLAUS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

181 F.2d 335 (1950)

D'ANNA v. UNITED STATES (two cases). THOMPSON v. UNITED STATES. KLAUS v. UNITED STATES.

Nos. 6032, 6033, 6034, 6035.

United States Court of Appeals Fourth Circuit

Argued March 10, 1950.

Decided April 11, 1950.

Morgan L. Amaimo and Charles W. Main, Baltimore, Md., for appellants.

James B. Murphy, Asst. U. S. Atty., Baltimore, Md. (Bernard J. Flynn, U. S. Atty., Baltimore, Md., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

These are appeals by plaintiffs from adverse judgments in actions for damages under the Federal Tort Claims Act, 28 U. S.C.A. §§ 1346, 2671 et seq. Plaintiffs are persons who claim to have been injured and damaged as the result of the falling of an auxiliary gasoline tank attached to a naval aeroplane which was participating in a demonstration over the City of Baltimore. The gasoline tank became detached from the aeroplane as it was diving over the city and plummeted to earth striking the fruit stand of the plaintiff Vincent D'Anna in the Lexington Market, where he and the other plaintiffs were standing. The question presented by the appeal is whether there was error on the part of the trial judge in holding that the presumption of liability raised by the Maryland statute from the falling of the gas tank had been rebutted by the evidence offered.

There can be no question but that the liability of the United States under the federal tort claims act is to be determined by the standards and tests of the law of Maryland. 28 U.S.C.A. § 1346(b); State of Maryland to the use of Burkhardt v. United States, 4 Cir., 165 F.2d 869, 871, 1 A.L.R.2d 213. And the liability of the owner of an aeroplane, under the law of Maryland, for injuries occasioned by the falling of an object therefrom is covered by article 1A section 5 of the Maryland Code, which provides: "5. (Damages on land.) The owner of every aircraft which is operated over the lands or waters of this State is prima facie liable for injuries to persons or property on the land or water beneath, caused by the ascent, descent or flight of the aircraft, or the dropping or falling of any object therefrom, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured, or unless at the time of such injury the said aircraft is being used without the consent, express or implied, of the owner. * * * The presumption of liability on the part of the owner, or of the owner and lessee, as the case may be, may be rebutted by proof that the injury was not caused by negligence on the part of such owner or lessee, or of any person operating such aircraft with the permission of the owner or lessee, or of any person maintaining or repairing such aircraft with the permission of the owner or lessee. * * *"

It is clear that the case here falls within the presumption raised by the statute; and we think it equally clear that the evidence offered by the government was not sufficient to rebut the presumption. It is undisputed that the tank became detached from the plane while it was flying over the City of Baltimore in a formation with 69 other planes in a public exhibition, and that this occurred during or immediately after a 30 degree dive of more than 7,000 feet. The tank was fastened beneath the plane, attached to the bomb rack by hooks, and no satisfactory explanation is offered as to how it became detached. There was evidence that a pin somehow came out of the bomb rack and that the bomb rack was found afterwards to have spread, but there is no satisfactory showing as to what caused the pin...