Gibbs v. United States, Civ. A. No. 5206.

• Decision Date: 29 December 1965
• Docket Number: Civ. A. No. 5206.
• Citation: 251 F. Supp. 391
• Parties: Jean Powell GIBBS, Widow of Boyd John (Bill) Gibbs, Deceased, v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Tennessee

251 F. Supp. 391

Jean Powell GIBBS, Widow of Boyd John (Bill) Gibbs, Deceased, v. UNITED STATES of America.

Civ. A. No. 5206.

United States District Court E. D. Tennessee, N. D.

December 29, 1965.

G. Edward Friar, Knoxville, Tenn., Bruce C. Bishop, Foltz, Bishop, Thomas, Leitener & Mann, Chattanooga, Tenn., for plaintiff.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., G. Wilson Horde, Asst. U. S. Atty., Knoxville, Tenn., Wallace E. Maloney, Atty., Dept. of Justice, Washington, D. C., for defendant.

ROBERT L. TAYLOR, Chief Judge.

This is an action filed under the Federal Tort Claims Act (28 U.S.C. § 2674)¹ by Mrs. Jean Powell Gibbs against the United States to recover damages for the death of her husband, who was killed in an airplane accident at Gainesville, Florida on February 3, 1964.

The action is based on an alleged violation of Chapter 768, Florida Statutes (1963) Sections 768.01 and 768.02, F.S.A., which is the Florida wrongful death statute.

The following facts were stipulated:

South Central Airlines Flight 510 on February 3, 1964 was a scheduled flight from Ocala, Florida to Jacksonville, Florida with an intermediate stop at Gainesville. Plaintiff's decedent, Boyd John Gibbs, boarded Flight 510 at Gainesville, Florida and was one of the nine passengers on board at the time of the crash. After nine passengers were boarded, in addition to the pilot, which made a total of ten persons and baggage on board, the airplane, Twin Beech N2999, taxied out for take-off on Runway 06 at Gainesville, Florida. The take-off was with flaps in the full down position (45 degrees). Thereafter, the landing gear was retracted and the airplane climbed to approximately 200 feet, whereupon the airplane stalled and crashed to the ground at the departure end of Runway 06. The airplane, at the time of take-off, had a total gross weight of 9402.2 pounds, which was apportioned as follows:

                Aircraft empty weight             6379.1 lbs
                oil (13½ gal.)               99.9 lbs
                fuel (127 gal.) front tanks        744.2 lbs
                fuel (50 gal.) rear tanks          293.0 lbs
                pilot Thompson                     172.0 lbs
                passenger Servos                   135.0 lbs.
                passenger Mary Eaton               110.0 lbs.
                passenger Anderson                 169.0 lbs.
                passenger MacKay                   172.0 lbs.
                passenger Dennis Eaton             180.0 lbs.
                passenger Legate                   178.0 lbs.
                passenger Cowperthwaite            150.0 lbs.
                passenger Willingham               185.0 lbs.
                passenger Gibbs                    205.0 lbs.
                baggage (nose compartment)         130.0 lbs.
                baggage (aft compartment)          100.0 lbs.
                                                 ____________
                                                  9402.2 lbs.
                

With the total gross weight of 9402.2 pounds and with the loading apportioned as set forth above, the center of gravity of the airplane was 124.7 inches aft of the datum line. With the landing gear in the up (fully retracted) position, the center of gravity was 125.9 inches aft of the datum line. At the time of takeoff, the persons and baggage on board were placed and weighed as follows:

1. Pilot Thompson weighed 172 lbs. and was seated in the pilot's seat (Seat No. 1) that is, the left seat in the cockpit (left side of the aircraft as looking from tail to nose).

2. Passenger Servos weighed 135 lbs. and occupied the seat beside Captain Thompson (Seat No. 2) or the first seat on the forward righthand side of the aircraft.

3. Passenger Mary Eaton weighed 110 lbs. and occupied Seat No. 3 which was the seat behind Captain Thompson on the lefthand side of the aircraft.

4. Passenger Anderson weighed 169 lbs. and occupied Seat No. 4 which was the seat on the righthand side of the aircraft behind the co-pilot's seat occupied by passenger Servos.

5. Passenger MacKay weighed 172 lbs. and occupied Seat No. 5 on the lefthand side of the aircraft which was the seat behind that occupied by passenger Mary Eaton.

6. Passenger Dennis Eaton weighed 180 lbs. and occupied Seat No. 6 on the righthand side of the aircraft which was the seat behind that occupied by passenger Anderson.

7. Passenger Legate weighed 178 lbs. and occupied Seat No. 7 on the lefthand side of the aircraft which was the seat behind that occupied by passenger MacKay.

8. Passenger Cowperthwaite weighed 150 lbs. and occupied Seat No. 8 on the right side of the aircraft which was the seat behind that occupied by passenger Dennis Eaton.

9. Passenger Gibbs weighed 205 lbs. and occupied Seat No. 10 on the righthand side of the aircraft which was the seat behind that occupied by passenger Cowperthwaite.

10. Passenger Willingham weighed 185 lbs. and occupied Seat No. 9 on the lefthand side of the aircraft which was the seat behind that occupied by passenger Legate.

11. There was 130 lbs of baggage in the nose baggage compartment.

12. There was 100 lbs of baggage in the aft baggage compartment.

All ten persons aboard were killed and the airplane was destroyed by impact and the subsequent fire.

Plaintiff contends that the Federal Aviation Agency, an agency of the Government, was negligent in the following respects:

(1) It negligently certified, licensed and allowed one Homer Thompson to pilot the airplane which crashed.

This contention was abandoned during the trial according to the Court's understanding. If mistaken in this understanding, no proof was introduced to support the contention and, therefore, the Court must conclude that it is lacking in merit.

(2) The Federal Aviation Agency negligently approved certified and licensed South Central Airlines to operate under an air taxi permit, (air taxi line being an airline that serves the smaller cities and connects with the major airlines at larger cities.)

(3) The Federal Aviation Agency negligently approved and certified the airworthiness of the Twin Beech Craft aircraft identified as N2999 when, as a matter of fact, the aircraft was not airworthy after it was modified or altered. In that connection, plaintiff says that by reason of the alterations and load on the date of the crash, the center of gravity was moved to a point about 124.7 inches aft of the datum line, whose center of gravity when empty was 114.53 inches aft of the datum line, which was far beyond the margin of safety.

Defendant denies that any of its agents or servants breached any provision of the Federal Aviation Act or any regulation issued thereunder, but contends that if they did, such would not give rise to a cause of action by plaintiff or any other individual. Defendant contends that the cause of the accident was pilot error and that since the pilot was not an employee of the Government, his error is not chargeable to the Government.

South Central Airlines originally operated in Charlotte, North Carolina in the air taxi service. A new Air Taxi Operator Certificate was issued to it when it moved its operations to Ocala, Florida, with an effective date of December 20, 1963. The Certificate called for an Operations Manual acceptable to the Federal Aviation Agency. It also provided that the Manual should be maintained in current status "and shall be readily available to all flight and ground personnel while in the performance of their respective duties. The St. Petersburg, Florida General Aviation District Office shall be furnished a copy of the Operations Manual and copies of all revisions and/or amendments as they occur." The Certificate likewise provided that the Manual should contain instructions, information and data pertaining to takeoff, "en route and landing weight limits when applicable" and "loading schedules or other methods and procedures for determining that the airplane is loaded within the allowable gross weight and center of gravity limits." (Plaintiff's Exhibit 12.)

Sam Caester, President of South Central Airlines, agreed to furnish the FAA a skeleton manual immediately, and a full manual in about six months after the Certificate was delivered. The Certificate was delivered without the skeleton manual. The amended Certificate required South Central to notify FAA before a new airplane was put into operation. The Charlotte Certificate was issued without an Operating Manual. The Manual was in the process of completion at the time of the accident.

Beechcraft N2999 was modified in the name of its owner, Leeward & Hart Aeronautical Corporation, and Charles M. Carrier, FAA inspector, on January 28, 1964 accepted the projected modifications as complying with the applicable airworthy requirements. (Plaintiff's Exhibit 9.)

The alterations consisted of changes in the baggage compartment located towards the rear of the airplane, installation of a single seat on the left side of the fuselage and removal of the original bulkhead web at Station 9 from approximately 4½" to the right of the centerline to the left side of the fuselage. A detailed account of the alterations is shown on pages 1 and 2 of Exhibit 9. The alterations increased the gross weight from 8750 pounds to 9360 pounds. The alterations met the minimum design requirements and were approved by Charles Faller, Supervisor of Engineering and Manufacturing of the District Office of FAA in Miami. The design data furnished by the owner of the airplane was evaluated by qualified engineers who worked in the Miami FAA office.

The application for the amendment to the Supplemental Type Certificate was made by W. H. Conrad, who was President of Airline Training, Inc., Ft. Lauderdale, Florida. Conrad was informed by Faller that additional data would be required after December 18, 1963. The projected modification was approved as of January 10, 1964, the Supplemental Type Certificate was not actually signed until January 27, 1964 but not delivered until February 25, 1964. Prototype tests were made on a model of the two planes owned and operated by South Central before a manual was issued. The Supplemental Type Certificate was signed February 25, 1964, but bore the date of January 10, 1964.

Nels E. Nelson...