Visco Flying Co. v. Hansen & Rowland, Inc.

• Decision Date: 23 September 1960
• Citation: 7 Cal.Rptr. 853,184 Cal.App.2d 829
• Court: California Court of Appeals Court of Appeals
• Parties: VISCO FLYING COMPANY, Inc., a corporation, Plaintiff and Respondent, v. HANSEN & ROWLAND, INC., a corporation, et al., Defendants, E. R. H. Hill of Lloyd's of London, Defendant and Appellant. Civ. 6418.

Page 853

7 Cal.Rptr. 853

184 Cal.App.2d 829

VISCO FLYING COMPANY, Inc., a corporation, Plaintiff and Respondent, v. HANSEN & ROWLAND, INC., a corporation, et al., Defendants, E. R. H. Hill of Lloyd's of London, Defendant and Appellant.

Civ. 6418.

District Court of Appeal, Fourth District, California.

Sept. 23, 1960.

C. F. Sturdevant, Jr., El Centro, for appellant.

Dickenson, Sattinger & McKee, El Centro, for respondents.

COUGHLIN, Justice.

This is an action founded upon a policy of insurance issued by the defendant and appellant to the plaintiff and respondent insuring the latter against loss arising out of damage to its Piper PA-22 aircraft, which was wrecked in an attempted landing on March 15, 1957. The resultant damage is a proper item of loss if the airplane was covered by the policy at the time of the accident. The defendant claims that coverage did not exist because of exclusionary provisions of the policy which read:

'This insurance does not apply:----

'1. Under any and all coverages while the aircraft with the knowledge and consent of the Assured is being operated in flight:----

'A. In violation of the Civil Aeronautics Administration regulations pertaining to the Airworthiness Certificate * * *'

The policy of insurance was issued on August 1, 1956 and, by endorsement, covered plaintiff's aircraft which was purchased on January 15, 1957. The accident occurred on March 15, 1957.

On December 17, 1956, before the aircraft in question was purchased, the Civil Aeronautics Administration issued directive No. 56-26-2 which declared:

'Modifications and inspections of civil aircraft as described below are mandatory. Aircraft which are not modified and inspected as required herein are considered unairworthy and continued flight of such aircraft will be regarded as violations of the Civil Air Regulations. * * *

'Rework the fuel tank caps as shown in the sketch below by drilling two additional .067 holes 1/4 of an inch from the existing center hole. * * *'

This directive applied only to certain specifically described Piper PA-22 aircraft. It did not apply to the subject aircraft which, as indicated, was purchased by plaintiff on January 15, 1957. At the time of such purchase the Civil Aeronautics Administration issued an airworthiness certificate thereon. On February 11, 1957 the Civil Aeronautics Administration issued directive No. 57-3 requiring all Piper PA-22 aircraft, which would included the one involved in this case, to comply with the regulations contained in the directive of December 17, 1956; such compliance to be effected prior to March 1, 1957; but also provided that:

'The C.A.A. will accept modifications * * * equivalent to those set forth in the airworthiness directive and manufacturer's instructions if it is shown that they actually accomplish the required effect. * * *'

Previously, Piper Aircraft Corporation had issued its service bulletin No. 148 advising modification of the fuel tank caps on aircraft described in the December 17, 1956 directive, but did not issue any bulletin concerning the aircraft of the type purchased by plaintiff until May 29, 1957 when, through bulletin No. 148A, it advised that the fuel tank caps on this type of aircraft complied with the Civil Aeronautics Administration Regulations.

It was stipulated that prior to March 15, 1957 the plaintiff, through its president, James Vedder, had received and had knowledge of the contents of the aforesaid airworthiness directives. At the time of purchase, the fuel tank caps on the subject aircraft were not drilled in accordance with the December 17, 1956 directive, nor were they modified by plaintiff so as to comply therewith. However, there is evidence which supports the conclusion that the fuel tank caps on the subject aircraft were so constructed as to meet the reason for the modification required of other fuel tank caps which were not so constructed; that the size of the air vents in the caps used on the model purchased by plaintiff were large enough so as not to require the two additional holes prescribed by the directives. The reason for drilling the two additional vent holes was to relieve a pressure that built up in the tanks and caused a noise on landing. The fuel tank cpas used on plaintiff's aircraft were specially marked with a blue X; had been inspected by the Aviation Safety Agent out of San Diego; did not cause any difficulty in the performance of the aircraft using them; and did not give rise to the noise on landing. Vedder, who was experienced in the flying and maintenance of aircraft, testified that, in his opinion, the tank caps used in plaintiff's aircraft were equivalent in performance to those modified in accordance with the C.A.A. directives. The evidence produced also would sustain an inference to this effect. In addition this conclusion is corroborated by the action of Piper Aircraft Corporation through issuance of its bulletin 148A, which advised that the tank caps in question complied with C.A.A. regulations, as well as by the subsequent formal approval of these caps by the Federal Aeronautics Administration--successor to C.A.A.--through a directive issued on May 18, 1959.

On March 15, 1957, after its engine stopped at a low altitude, the subject aircraft, in an attempted landing, ran off the runway and overturned. The cost of repairs was $5,400. By this action plaintiff seeks recovery of this amount from its insurance carrier. From the judgment in favor of plaintiff, the defendant takes this appeal. The issue for determination on appeal is whether the subject aircraft, at the time of the aforesaid accident, was being operated in violation of the February 11, 1957 C.A.A. directive No. 57-3.

The defendant contends that plaintiff's failure to cause the fuel tank caps on its aircraft to be drilled in accord with the February 11th directive constitutes a violation of Civil Aeronautics Administration Regulations which brings the aircraft within the exclusionary provisions of its policy.

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