United States v. Schultetus, 17712

• Decision Date: 17 May 1960
• Docket Number: 17713.,No. 17712,17712
• Citation: 277 F.2d 322
• Parties: UNITED STATES of America, Appellant, v. Joanne Mae SCHULTETUS, a Widow, Individually and as next friend of Douglas Jay Schultetus, a minor, et al., Appellees. UNITED STATES of America, Appellant, v. AERO ENTERPRISES, INC., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

277 F.2d 322 (1960)

UNITED STATES of America, Appellant, v. Joanne Mae SCHULTETUS, a Widow, Individually and as next friend of Douglas Jay Schultetus, a minor, et al., Appellees.

UNITED STATES of America, Appellant, v. AERO ENTERPRISES, INC., et al., Appellees.

Nos. 17712, 17713.

United States Court of Appeals Fifth Circuit.

April 18, 1960.

Rehearing Denied May 17, 1960.

Howard E. Shapiro, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., A. W. Christian, Clayton L. Bray, Asst. U. S. Attys., Fort Worth, Tex., W. B. West, III, U. S. Atty., Fort Worth, Tex., George Cochran Doub, Asst. Atty. Gen., for appellant.

L. W. Anderson, William B. Henley, Jr., Dallas, Tex., for appellees Joanne Mae Schultetus and American Flyers, Inc. Harris, Anderson, Henley & Rhodes, Dallas, Tex., of counsel.

S. A. Crowley, Robert D. Maddox, Stanford Harrell, Crowley, Wright, Miller & Garrett, McDonald, Sanders, Nichols, Wynn & Ginsburg, Fort Worth, Tex., for appellees Aero Enterprises, Inc., and Delores Senn.

Before HUTCHESON, JONES and WISDOM, Circuit Judges.

JONES, Circuit Judge.

These cases arose out of a collision of airplanes over Meacham Field at Fort Worth, Texas. This field is owned and operated by the City of Fort Worth. It is used by all types of aircraft for various purposes but it is not generally used by commercial airlines operating on scheduled flights. There are three large runways on the field, of which only two require reference. Runway 17 runs in a north-south direction (178° South), and it is crossed by Runway 13 which runs in a northwest-southeast direction (130° Southeast). Flight operations at the field were directed from a control tower operated by employees of the Civil Aeronautics Administration, an agency of the United States, herein called C A A. The collision occurred a few minutes after noon on April 9, 1957. The sun was shining and a moderate wind was blowing from the southeast. The two aircraft involved in the collision were owned by separate flying schools. One of these aircraft, a Cessna 170, frequently identified in the testimony as 59 Victor, was owned by American Flyers, Inc. It was in charge of instructor pilot Schultetus who had with him student pilot Rattunde. The other plane was a Cessna 140 which was owned by Aero Enterprises, Inc., and at the time of the collision it was operated by instructor pilot John Louie Senn and student pilot C. P. Chambers. All four occupants of the aircraft were killed in the collision.

Aero Enterprises, Senn's widow for herself and her minor children, and Senn's mother, brought suit against American Flyers and the United States. It was asserted that the pilots of the Cessna 170 were negligent in operating the plane and that the United States was negligent in the giving of improper signals and in failing to give proper signals from the control tower, and that the negligence so alleged was the cause of the collision. American Flyers cross-claimed against Aero Enterprises and the United States for the value of its Cessna 170, making similar allegations of negligence against Aero Enterprises as the plaintiffs had made against it, and making like charges against the United States. American Flyers also cross-claimed against the United States for indemnity, and the United States cross-claimed against American Flyers for indemnity or contribution. The widow of Schultetus for herself and her minor child brought suit against Aero Enterprises and the United States asserting negligence liability for the death of her husband. Aero Enterprises cross-claimed against the United States which cross-claimed against Aero Enterprises, each making protective claims for indemnity or contribution. The Ohio Casualty Insurance Company intervened to recover workmen's compensation benefits paid for the death of Schultetus.

The two cases were consolidated for trial. The district court found that there was no negligence in the operation of either of the aircraft. It found that the C A A employees were negligent in what they did and in what they failed to do, and that their negligence was the cause of the collision with the resulting loss of life and property. Judgments aggregating $147,000 were entered against the United States. The district court's opinion is reported in 167 F.Supp. 239. The United States has appealed in each case and the appeals were consolidated. These proceedings do not involve any claims from the death of either of the student pilots.

Shortly before the collision the Cessna 140 took off on Runway 13 to the southeast and into the wind. This plane was engaged in making practice landings. This plane was radio equipped but the radio was not in operation. No radio was required in the activity of the Cessna 140. The routine of such procedure was to climb from the take-off to a 400-foot altitude, make a left turn to the crosswind leg and climb to 600 feet, turn left again to a downwind course parallel with Runway 13 for an appropriate distance, then make another left turn into the so-called base leg and from it turn into the runway approach for a landing. Two other Cessna 140's took off after the Senn-piloted aircraft. One of these had aboard instructor pilot George A. Schlarman and student pilot Marvin Brown. The other Cessna 140 was being flown by Pete B. Dennis.

The Cessna 170 was coming in from the north to make a simulated instrument landing on Runway 17. Rattunde, the student, was taking instruction instrument flying. His side of the windshield was covered with a transparent amber shield and his eyes were covered with polaroid goggles, so that he could see the instrument panel in the plane but could not see through the windshield. The visibility of his instructor was not, and was not permitted to be, restricted or impaired. As the Cessna 170 approached, the Cessna 140 had turned into its northwest or downwind course, flying at 600 feet. The Cessna 170 requested the control tower to clear it for a simulated instrument landing. The clearance was given and with the clearance a warning was given that there was "Traffic, Cessna 140 East of the field, downwind for Runway 13." A brief interval later the tower again warned the Cessna 170 of "Traffic, Cessna 140 downwind East of the field for Runway 13," and asked "Do you have him in sight?" The Cessna 170 replied, "I have him in sight." As the Cessna 170 came over the "middle marker" radio facility, about six-tenths of a mile from the end of Runway 17, at an altitude of 400 feet, it transmitted "missed approach," and began climbing. The tower gave another warning, "Cessna crossing in front of you." Calvin Ellis, the Senior Controller at the tower, heard an acknowledgment. As the Cessna 170 began its climb it made a turn to the left¹ and in a matter of seconds the Cessna 170 came up to and struck the Cessna 140.

The district court found that each of the aircraft was on a proper course and altitude at the time of the collision and that there was no negligence on the part of the operator of either of the aircraft. It was found that there were two or more Cessna 140's on the downwind leg and that the tower operators were negligent in failing to warn the Cessna 170 of the presence of more than one and in failing, in the warnings, to identify the Cessna 140 referred to. The district court found that the operators of the control tower negligently failed to instruct the Cessna 170 to alter its course so as to avoid the collision, and likewise negligently failed to give red light signals to the Cessna 140 directing it to give way to the Cessna 170. It was also held that the tower operators negligently failed to maintain proper control over the two aircraft so that each would be properly spaced. The acts of the operators of the control tower, so found to be negligent, were determined by the district court to be the proximate cause of the collision and of all the damage resulting therefrom. 167 F.Supp. 239, 245-246. The findings and conclusions of the district court are challenged by the United States.

Liability growing out of the operation of aircraft is to be determined by the ordinary rules of negligence and due care. King v. United States, 5 Cir., 1949, 178 F.2d 320; 6 Am.Jur. 38 et seq., Aviation § 64. The applicable law, under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), is that of Texas. The well-settled negligence rule in Texas is that "The ability to have foreseen and prevented the harm is determinative of responsibility." 30B Tex.Jur. 179, Negligence, § 8. But, as this Court has said, "* * * it is not required that the particular accident complained of should have been foreseen. All that is required is `that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.'" International Derrick & Equipment Co. v. Croix, 5 Cir., 1957, 241 F.2d 216, 221, certiorari denied 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1428.

It is the position of the United States that the district court committed error in determining that the acts of the operators of the control tower were negligent, and the proximate cause of the collision and of the damage resulting from it. The Government contends that the court was in error in determining that the Cessna 170 was not negligent in making the left turn that brought it into collision with the Cessna 140.

It is required that, "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses," Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A. This Court, discussing Rule 52(a) has said,

"Under that rule, as it plainly reads and has been interpreted by the courts, it is not for the appellate court to substitute its judgment on disputed issues of fact for that of the trial court

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