McCallum v. Executive Aircraft Co.

Decision Date04 June 1956
Docket NumberNo. 22362,22362
Citation291 S.W.2d 650
PartiesA. J. C. McCALLUM, Respondent, v. EXECUTIVE AIRCRAFT COMPANY, a corporation, Appellant.
CourtMissouri Court of Appeals

James H. Ottman, Kansas City, Alan F. Wherritt, Wherritt & Turpin, Liberty (Sebree, Shook, Hardy & Ottman, Kansas City, of counsel), for appellant.

George H. Charno, Jr., Charno & Charno, Kansas City, Judson L. Palmer, Palmer & Davidson, North Kansas City, for respondent.

CAVE, Judge.

This is an action to recover damages to an airplane owned by respondent-plaintiff. Trial to a jury resulted in a verdict and judgment in favor of the plaintiff for $6,000, and defendant appealed.

The cause was submitted to the jury on the theory that the defendant, at plaintiff's request, sent its employee to inspect and repair the propeller of plaintiff's plane; that said agent performed work on the same and released the plane for flight, representing to plaintiff that the propeller was airworthy and safe for flight; that plaintiff relied upon said representation and undertook to fly the plane; that immediately after taking off from the airport, the propeller malfunctioned by failing to maintain the necessary power and was not airworthy and safe for flight; and that as a result thereof plaintiff was required to make a forced landing, and thereby damaged the plane.

A general statement of the facts will first be made. Plaintiff, a physician and surgeon of Aurora, Missouri, was a licensed pilot and the owner of a Cessna 195 Aircraft. His flying experience included approximately 570 hours, of which about 100 hours were night flying. On February 21, 1954, he had flown his plane from Springfield to Warrensburg, Missouri, without difficulty. Later, when he started the engine for the purpose of warming it up for the return trip, the propeller suddenly started losing oil and threw out 14 quarts in 45 seconds. Plaintiff called defendant and asked that a qualified repairman be sent to make the necessary repairs. Defendant is a corporation and is certified as a Repair Station for Aircraft by the Civil Aeronautics Authority (hereafter referred to as CAA). Plaintiff had requested that defendant send a CAA licensed Airframe and Engine Mechanic, known as an 'A. & E.', to repair the plane. Defendant sent Lloyd Oliver, an employee, who did certain work on the propeller and represented to plaintiff that the 'propeller was O.K. * * * was in A-1 mechanical condition. * * * I assured Dr. McCallum that it was all right. * * * That it was safe for that flight.' Shortly thereafter, plaintiff started the engine, adjusted the controls, and the propeller attained 2100 revolutions per minute (hereafter referred to as rpm), and the plane became airborne. But when it attained an altitude of about 400 feet, the rpm suddenly reduced to a range between 1200 and 1400, which was not safe for flight, and plaintiff made an emergency landing, damaging the plane.

Defendant does not contend that the evidence is insufficient to establish a warranty, but asserts that: 'The plaintiff failed to prove or to sustain the burden of proving that the alleged improper 'examination, inspection and repair' of plaintiff's propeller was the proximate cause of the 'forced landing' made by plaintiff and the resulting damage to his plane.' This requires a more detailed statement of the evidence.

It is conceded that Oliver was defendant's employee; that he was sent to inspect and repair plaintiff's plane; that he was authorized, on behalf of defendant, 'to release said aircraft for flight and airworthiness respecting the aircraft propeller only, after effecting repairs and replacements of same'; that Oliver did inspect and make certain repairs of the propeller; that he released the aircraft for flight and stated and represented to the plaintiff that the propeller was in good mechanical condition and airworthy. Plaintiff testified that he relied on such representations, otherwise he would not have attempted the flight.

The evidence respecting the repairs to the propeller is conflicting as to the appropriateness of the procedures employed by Oliver and the efficacy of his work. Under the theory of liability submitted in plaintiff's Instruction No. 1, we think it is unnecessary to detail this conflicting evidence. Suffice it to say that plaintiff produced expert testimony to the effect that Oliver had not, in all respects, used approved methods in inspecting the propeller and repairing and reassembling the same. The case was submitted to the jury on the theory of breach of warranty, and not on negligence. The propriety of the submission for breach of warranty will be discussed later.

Defendant's specific contention under its Point One is that, even if it be conceded that plaintiff's evidence did establish that defendant's agent improperly inspected or repaired the propeller and represented to plaintiff that the propeller was airworthy, and that thereafter in the course of plaintiff's take-off from the airport the propeller malfunctioned in certain respects, nevertheless plaintiff's evidence fails to establish that such malfunction was the proximate cause of the plane crash. This contention is based on the following facts: that this type of airplane has but one propeller; that in the cockpit are two controls, one for governing the power of the engine and the other controls the revolutions of the propeller; that the throttle controlling engine power registers on an instrument referred to as a manifold pressure gauge calibrated in inches of mercury; that the revolutions of the propeller are controlled by a propeller control and the rpm registered on an instrument referred to as a tachometer. So far as the issues in this case are concerned, the above respective controls are independent of each other; that is, the rpm of the propeller are not changed by adjusting anything but the propeller control and are unaffected by minor changes in the engine throttle setting. There is considerable technical evidence concerning the operation of the engine power and the propeller rpm, but it is unnecessary to detail such evidence because there appears to be no conflict on that feature of this type of plane.

The maximum propeller power of this plane was 2300 rpm. After plaintiff had been assured by defendant's agent that the plane was airworthy, he warmed up the engine and set its power at '29 inches', and set the propeller control at full speed and the propeller attained 2100 rpm during the take-off. When plaintiff attained an altitude of approximately 400 feet, and while in the process of making a left turn, he reduced the engine throttle or manifold pressure from 29 inches to 23 inches, which should not affect the propeller rpm, but the propeller rpm immediately dropped to 1200-1400, which was insufficient to keep the plane safely airborne. Plaintiff testified that he did not touch or change the propeller control.

There was testimony by experts that the sudden reduction in rpm, under the circumstances above mentioned, indicated a propeller failure, and that a plane of this type could not be kept safely airborne with only 1200-1400 rpm.

However, defendant argues that the proximate cause of the damage to the plane was what plaintiff did and failed to do after the malfunctioning of the propeller; that is, the manner in which plaintiff piloted the plane after the emergency arose. Plaintiff testified that he first intended to make a 360? > turn and land in the same direction in which he had taken off from the airport, although that is difficult at an altitude of 400 feet; but after he started the turn, a passenger in the plane stated that he thought the engine might be on fire, and with this additional hazard, the plaintiff did not increase the manifold pressure, which would increase the fire hazard, but attempted to and did make a 180? turn and approached the field for landing. The landing gear touched the runway near the off-end, blew out a tire, and the plane catapulted into a wire fence, continued across a state highway and turned over in a nearby field.

Plaintiff admitted that he was aware of the usual procedure, when a single engine plane cannot maintain its altitude, that the pilot should undertake to land 'straight ahead' and on the most favorable terrain, and especially is this true when the plane is at a low altitude. However, he stated that this accident occurred about 9 p. m. on a dark February night; that he had been advised that there was a lake in the immediate vicinity, but did not know its location; that he was not familiar with and could not see the condition of the surrounding fields; and under such circumstances he thought it best to attempt to reach the airport which was nearby. He also admitted he did not attempt to increase the engine power because 'I was afraid to attempt to climb and give the engine any power, because if it failed, we would merely stall out and both be killed'.

Witness Haus, an experienced pilot who holds the highest rating issued by CAA testified in substance that when a power failure occurs in a single engine craft on take-off, the usual procedure is to land 'straight ahead if conditions permit'; that the pilot should look immediately for a place to land and effect a landing as soon as possible; that a power failure at night is extremely hazardous; 'Its a groping affair at night and your chances are greatly reduced'; that in case of a partial failure of power, he stated, 'If I had enough power that I thought, and I was in a position to get to a field, I would certainly try to do so'; that it is better to land downwind than attempt to increase power and rely on a malfunctioning propeller which may malfunction again in a worse position where the field cannot be reached without power.

Defendant argues that plaintiff failed and neglected to increase the manifold pressure with the expectation of increasing the rpm and did not attempt to make a 360? turn and land on the...

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