State of Maryland v. United States, Civ. A. No. 17503

• Decision Date: 20 December 1961
• Docket Number: 17541.,Civ. A. No. 17503
• Citation: 200 F. Supp. 475
• Parties: STATE OF MARYLAND for the Use of Nadine Y. LEVIN, individually and as next friend, mother and guardian, et al., Plaintiffs, v. UNITED STATES of America, Defendant. STATE OF MARYLAND for the Use of Sydney L. JOHNS and Kennedy Smith, as Executor of the Estate of Ruth Johns, Deceased, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

200 F. Supp. 475

STATE OF MARYLAND for the Use of Nadine Y. LEVIN, individually and as next friend, mother and guardian, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

STATE OF MARYLAND for the Use of Sydney L. JOHNS and Kennedy Smith, as Executor of the Estate of Ruth Johns, Deceased, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 17503, 17541.

United States District Court W. D. Pennsylvania.

December 20, 1961.

Theodore E. Wolcott, New York City, William Friedman and Kennedy Smith, Pittsburgh, Pa., for plaintiffs.

Joseph S. Ammerman, U. S. Atty., Pittsburgh, Pa., Enoch E. Ellison, Sp. Litigation Counsel, Alice K. Helm, Dept. of Justice, Washington, D. C., for United States.

GOURLEY, Chief Judge.

In this non-jury proceeding under the Federal Tort Claims Act based upon two death actions arising from a mid-air collision between a Capital commercial airliner and a T-33 jet plane owned by the United States of America, the court is confronted with three issues requiring determination:

1. Was Captain Julius R. McCoy, pilot of the T-33 jet plane, an employee of the United States acting in the scope of his employment within the purview of the Federal Tort Claims Act at the time of the accident?

2. Was Captain Julius R. McCoy guilty of negligence which was a substantial factor in bringing about the accident?

3. What damages were sustained?

Upon evaluation of all the testimony, oral and documentary, and the inferences deducible therefrom the court enters the following Findings of Fact and Conclusions of Law:

Finding of Fact.

Part I — Agency of Captain McCoy in Operation of the Jet T-33 Aircraft.

1. The actions arise out of a mid-air collision between a Capital Airlines Viscount Commercial Air Transport aircraft and a T-33 Jet aircraft owned by the United States and allocated to the Maryland Air National Guard. The collision occurred on May 20, 1958, approximately four miles east-northeast of Brunswick over the State of Maryland, at an altitude of about 8,000 feet on a civil airway known as Victor 44 while the Viscount was enroute from Pittsburgh to Baltimore — Friendship Airport. The T-33 jet aircraft was being operated by Captain Julius R. McCoy on a local area flight originating out of Martin Airport, Baltimore, Maryland, and was operating under visual flight rules.

2. These two cases are brought under the Federal Tort Claims Act against the United States of America and have been consolidated for trial in this court.

3. The airplane operated by Captain McCoy at the time of the accident belonged to the United States and had been allocated to the Maryland Air National Guard. The United States paid the cost of the fuel used by the airplane on all of its flights, provided equipment, paid the salaries of all civilian and military personnel to maintain said equipment, provided new and spare parts for the equipment and made all major repairs needed by said plane and the other planes allocated to the Guard Unit.

4. On the date of the accident Captain Julius R. McCoy was employed as a full time civilian air technician under the provisions of 32 U.S.C.A. § 709(a) which provides for civilian caretakers of United States Military Property.¹ He was also a commissioned officer in the Air National Guard of the State of Maryland.

5. Pursuant to 32 U.S.C.A. § 709(a) and under the direction of the Secretary of the Air Force there was promulgated a "Civilian Personnel Manual," dated December 20, 1954, (hereinafter referred to as ANGM 40-01) which listed the jobs in the air technician categories and prescribed the duties and requirements of the jobs and the prerequisite training for such employment. This also contained a job description of aircraft maintenance chief and aircraft maintenance supervisor.

6. Under the authority of ANGM 40-01, the National Guard Bureau promulgated Air National Guard Manual 40-01 dated 1 March 1958, (hereinafter referred to as ANGM 40-01) which provides that its provisions will govern all Air National Guard civilian employees. Said manual further provides that the "authority of the National Guard Bureau to regulate employment and rates of compensation is contained in Department of the Army General Order 96, dated 9 November 1951, subject, `Delegation of Authority for the Employment and Fixing of Salaries for all Caretakers and Clerks in the National Guard Bureau.'"

7. Air technicians such as Captain McCoy are full time civilian personnel who are placed at National Guard installations to maintain federal property and records, to the prescribed standard of the United States Air Force, that cannot be maintained by the normal personnel assigned to the Guard Units. In order to qualify as an air technician (caretaker) under provisions of ANGM 40-01, Captain McCoy attended a nine months' course for Maintenance Officers at the United States Air Force Base and Maintenance School at Chanute Air Force Base, Illinois. He was ordered to active duty and required to attend the school at Chanute by authority of the Secretary of the Air Force. While attending this school, he was paid by the United States Air Force Finance Office at Chanute.

8. As an air technician (caretaker), Captain McCoy held a job entitled Aircraft Maintenance Chief. This job required him to see that 28 aircraft belonging to the United States were properly maintained in accordance with Air Force regulations and to supervise approximately 60 to 65 persons at the Base working on the maintenance and care of these airplanes owned by the United States.

9. Aircraft maintenance procedures are set by the United States Air Force and the responsibilities of Aircraft Maintenance Chiefs are outlined by United States Air Force regulations, manuals, and technical orders. To insure that the unit operated the equipment in accordance with standards prescribed by the United States Air Force, an Air Force Adviser who was on active duty with the United States Air Force was stationed at Martin Field. If he were dissatisfied with the maintenance situation, he would so report to the Air Force.

10. United States Air Force Inspection Teams made inspections to determine whether the Air Technicians were complying with the requirements of ANGM 40-01. These inspections were made annually to determine whether the technicians were qualified to continue to hold their jobs. If the United States found that a civilian employee of an Air National Guard Unit was not meeting the requirements, it could, in practical effect, work his discharge by stopping his salary.

11. At the time of the occurrence, in addition to his duties as Aircraft Maintenance Chief, Captain McCoy was Acting Maintenance Supervisor for the Base in the absence of Major Mitchell who held this assignment but who was away on a training program. (Prior to May 16, 1958, Captain McCoy had been Maintenance Supervisor but his job status was changed effective that date to Aircraft Maintenance Chief.) At the time of the occurrence, Captain McCoy was the only officer in the aircraft maintenance field at the Base.

12. As Acting Maintenance Supervisor, Captain McCoy had approximately 60 to 65 civilian maintenance personnel under his supervision. The duties of this job included supervision of the maintenance and care of aircraft, vehicles, ground support equipment, all United States property at the Base, and also over-all supervision of the people who maintained the equipment.

13. As an air technician, i. e. in his civilian capacity, Captain McCoy was employed at the Base during the normal work week from 8:00 A.M. to 4:30 P.M., Tuesday through Saturday, except for two Saturdays a month. On those two Saturdays, he would be in his military status as an officer in the Air National Guard and as Squadron Maintenance Officer. The accident occurred on a Tuesday, when Captain McCoy worked in his civilian capacity as an air technician in accordance with the usual practice and procedure at the Base.

14. Captain McCoy's immediate superior in his civilian employee status was Lt. Col. Kilkowski, who was also, in addition to his military status as a member of the Maryland Air National Guard in which he was commanding officer of the Squadron, a civilian employee holding the air technician position of Base Detachment Commander.

15. Captain McCoy applied to Lt. Col. Kilkowski for permission, and received it, to make the flight on May 20, 1958, accompanied by a passenger, Donald Chalmers, who was a member of the Maryland Army National Guard. Captain McCoy informed Lt. Col. Kilkowski that the purpose of the flight was a proficiency flight, and the flight clearance and order issued in connection with the flight indicate that the purpose of the flight was proficiency.

16. In order to maintain his aeronautical rating as a pilot, it was necessary that Captain McCoy perform proficiency flights to comply with the requirements of AFR 60-2² which prescribes certain minimum flying requirements for maintenance of a rating as a flying officer.

17. An aeronautical rating only allows a man to fly the aircraft, if he obtains permission to do so. It does not determine his purpose or the work he is properly doing in flying that aircraft.

18. While the job description of the Aircraft Maintenance Chief's position set forth in Civilian Personnel Manual ANGM 40-01 contains no requirement that the holder of the position be a pilot or that he fly aircraft, the job description for Base Maintenance Supervisor provides that it is "desirable" that the incumbent be a rated pilot on flying status to enable him to "make test flights on assigned aircraft."

19. It is desirable for the Maintenance Officer to have a flying status for various reasons. For example, when he flies the aircraft, he observes under operating conditions the quality of the maintenance being performed thereon as well as the condition of the equipment, all of which is necessary to and part of the efficient performance of his job as air technician...