Laird v. Air Carrier Engine Service, 17359.

• Decision Date: 25 March 1959
• Docket Number: No. 17359.,17359.
• Citation: 263 F.2d 948
• Parties: Loretta A. LAIRD, Helen V. Laird and Eagle Star Insurance Company, Limited, Appellants, v. AIR CARRIER ENGINE SERVICE, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

263 F.2d 948 (1959)

Loretta A. LAIRD, Helen V. Laird and Eagle Star Insurance Company, Limited, Appellants, v. AIR CARRIER ENGINE SERVICE, INC., Appellee.

No. 17359.

United States Court of Appeals Fifth Circuit.

February 27, 1959.

Rehearing Denied March 25, 1959.

James R. Mattison, Milwaukee, Wis., for appellant.

Douglas D. Batchelor, Miami, Fla., Smathers, Thompson & Dyer, Miami, Fla., of counsel, for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This cause grows out of the crash on December 17, 1954, of the Miller's High-life airplane resulting in the death of four persons and the destruction of the plane. In this action against ACES (Air Carrier Engine Service, Inc.) asserting that the 1954 crash in Wisconsin was caused by negligent engine overhaul in Miami during 1951, the jury returned a general verdict for the defendant. This appeal of the unsuccessful plaintiffs does not challenge the sufficiency of the evidence. Indeed, they say it is precisely because it was one of hotly disputed questions with great technical complexity, that made it so important that, in the procedural aspects of the case, the jury be afforded the full picture. The complaint is primarily that after the trial commenced the Court permitted ACES to repudiate a crucial pretrial stipulation and thereafter failed to adhere to the protective conditions impliedly imposed as the price for repudiation.

As this markedly narrows the field, only a brief resume of the facts is needed. And what is stated is set forth in the broadest of terms primarily to portray how this procedural problem arose and why its influence was significant. We sound this caveat lest on the retrial which we order, the parties or the Court draw the unwarranted inference that in this preview we have attempted judicially to declare what the facts are, or what their mechanical or judicial significance might be. What we are trying to say is that whatever capacity we have as Judges to write with some assurance on the law, we are not skilled in the intricacies of airplane engines or the delicate process of engine overhaul and testing. Our description of the mechanics involved is an avowed over-simplification with all of the risks of technical inaccuracy of that approach. The plane crashed during take-off due to failure of one or both engines. The plaintiffs' theory was that the immediate cause was the failure of the left engine. In turn, the failure of this engine was due to the fracture of the crankshaft. This, in turn, was caused by progressive fatigue in the body of the crankshaft resulting from stresses set up in the threads of the crankshaft and crankshaft bolt. On plaintiff's theory, this brought legal responsibility home to ACES. For the climax of plaintiff's claim was that these thread stresses were caused by the use of a different crankshaft bolt in the run-out test from that used in final reassembly. Such a practice was in violation of certain specified technical orders and manufacturers' service bulletins with which a certificated CAB aircraft maintenance concern had to comply.

This composite theory was at the heart of the trial. As the trial unfolded, the controversy raged over the basic issue: was the same crankshaft bolt used in the run-out test and in the final reassembly?

But until some time after the trial commenced, this issue was not in the case. This was so because at the pretrial hearing, held about two weeks before the trial, ACES formally stipulated that the same crankshaft bolt had not been used on run-out test and final reassembly. It is not questioned that such stipulation was both articulate and deliberately made. The lengthy pretrial hearing, held in chambers but stenographically reported, reflects that both of these able adversaries were well prepared. By this time extensive pretrial discovery activities had been completed. A great amount of scientific and technical data had been assembled. Scientists of the National Bureau of Standards and representatives and inspectors of the Civil Aeronautics Board had been examined under searching depositions. The subject of the depositions included examination of, tests on, and opinion drawn from, parts of the engine including the fractured crankshaft salvaged from the wreckage. Perhaps of most importance, the depositions included one taken of Charles McCullough, the shop superintendent of ACES.

In that deposition given on November 26, 1956, McCullough swore categorically that the same crankshaft bolt was not used on run-out test and final reassembly.

The result was — and this was the purposeful intention of all — that the trial would then determine whether (a) failure to use the same bolt was negligence and (b) if so, was that a proximate cause of the crash.

But the trial turned out to be quite different. The jury panel was examined and a jury selected. Just as plaintiffs' counsel was to begin his opening statement on his theory encompassing this stipulation, defense counsel for the first time tentatively indicated that ACES might repudiate the stipulation. The statement was that counsel over the week end had learned that some papers in ACES' files indicated that probably the machinery necessary for using different bolts in run-out and reassembly had not been procured until 1954 so that such method could not have been used in 1951 on the engine involved here. ACES' trial counsel who argued the case before us acknowledged with his characteristic candor that this development was certainly a new one, and that he had no doubt that plaintiffs' counsel was actually and legally surprised.

No motion for continuance was then made by plaintiffs. We think none was then required. The statement was at most a tentative repudiation of the stipulation. And to the Court's inquiry whether ACES wanted to change the stipulation, no significant response was made.

The trial of the case began with time largely consumed in the presentation of some of the numerous depositions. No indication was forthcoming as to what ACES intended to do about the stipulation. Toward the end of the first day plaintiffs' counsel requested that the Court permit them to read to the jury the exact words ACES' counsel had stated in the pretrial hearing which constituted the categorical admission on the use of separate bolts. After first stating that on counsel's representation that he had just discovered the true facts, the Court would not hold counsel to the stipulation, the Court made a ruling which was both significant and relieved plaintiffs of the obligation to then move for a continuance. The Court stated:

"You can read that testimony. That statement was somebody\'s deposition. That will be sufficient. He ACES\' counsel said he made a mistake, and if he did make an honest mistake I will not hold him to strict accountability, because I understand he might not know exactly what happened out there."

The Court's reference to "that testimony" was to the deposition of Charles C. McCullough.

This left the matter then with the plain statement that the Court would permit plaintiffs to "read that testimony". Since this gave the plaintiffs the right to offer the words of the witness having knowledge of the facts as an outright admission against ACES, there was no particular reason to persist in the request to read the lawyer's summation of it or request a continuance because of the change of position.

But again things didn't turn out that way. Near the end of the second day the plaintiffs came to the place for McCullough's testimony. But the plaintiffs were not permitted to read the deposition of McCullough. The Court required that McCullough, then available as a witness, be placed on the stand as plaintiffs' witness. Despite repeated requests the Court declined to permit the plaintiffs to examine him as an adverse witness. The plaintiffs' only opportunity to "read that testimony" was to confront the witness McCullough with it as a prior inconsistent statement. But this was far different from offering it either as an admission or as testimony. ACES' counsel successfully argued that, as he had himself learned from a recent opinion of ours, Tropical Marine Products, Inc. v. Birmingham Fire Ins. Co., 5 Cir., 1957, 247 F.2d 116, 120 note 8, 1957 A.M.C. 1946, 1951 note 8, this was not affirmative proof of the crucial fact, i. e., use of different bolts. Indeed, on the basis of this vital distinction, ACES subsequently objected successfully to a hypothetical question put to an expert because it assumed this fact which had not been proved.

So it was not until the trial was nearly a third over that plaintiffs learned that the stipulation had now been repudiated and that the Court had declined to adhere to its previous assurances. The plaintiffs' strong opposition to these cumulative actions had already been brought sharply to the attention of the Court. As the Court had not yet felt that this was sufficiently prejudicial to the plaintiffs to cause it to rule favorably on the protests, there is no indication that, at this juncture, the ruling would have been otherwise. Under these circumstances a motion for continuance would have been a paper formality and the plaintiffs' standing to complain here is not prejudiced by the failure to make any such move.

But even conceding that this action was wrongful, the plaintiffs...