Watson v. Byerly Aviation, Inc.

• Decision Date: 12 October 1972
• Docket Number: No. 71-144,BALDWIN-LIMA-HAMILTON,71-144
• Parties: Robert C. WATSON, d/b/a Air Charter Service, Plaintiff-Appellee, v. BYERLY AVIATION, INC., Defendant and Third Party Plaintiff-Appellant, v. STANDARD STEEL, DIVISION OFCORP., Third Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 233

288 N.E.2d 233

7 Ill.App.3d 662

Robert C. WATSON, d/b/a Air Charter Service, Plaintiff-Appellee, v. BYERLY AVIATION, INC., Defendant and Third Party Plaintiff-Appellant, v. STANDARD STEEL, DIVISION OF BALDWIN-LIMA-HAMILTON CORP.,

Third Party Defendant-Appellee.

No. 71-144.

Appellate Court of Illinois, Third District.

Oct. 12, 1972.

Rehearing Denied Nov. 6, 1972.

John F. O'Meara, Chicago, McConnell, Kennedy, McConnell & Morris, Peoria, for appellant.

Lyle W. Allen, David A. Nicoll, Peoria, for appellee.

STOUDER, Presiding Justice.

Plaintiff, Robert Watson, d/b/a Air Charter Service, Appellee, brought this action in the Circuit Court of Peoria County to recover for damage to his airplane from Defendant, Byerly Aviation, Inc., Appellant. Byerly Aviation filed a third party action against Standard Steel, Division of Baldwin-Lima-Hamilton Corporation, Third Party, Defendant-Appellee. At the close of all the evidence the court granted Standard Steel's motion for directed verdict and entered judgment in favor of the Third Party Defendant on the Third Party action. The court denied Byerly Aviation's motion for directed verdict and when the jury returned a verdict in favor of Watson against Byerly Aviation for $50,000, the court entered judgment on the verdict, Post trial motions as to both judgments were denied by the court and are the basis of this appeal.

On July 17, 1966, a DC-3 owned by plaintiff Watson, landed at Peoria Airport and packed on the service ramp operated by the defendant, Byerly Aviation. The pilot of the plane, Miller and the co-pilot Hann, were both employed by the third party defendant, Standard Steel. The passengers on the plane disembarked and the co-pilot secured the plane. The pilot ordered fuel from a lineman of Byerly Aviation by saying either 'refuel the main four tanks' or 'top off the four mains'. The pilot and co-pilot then left the ramp area and went to the terminal building to get something to eat.

The DC-3 was a twin engine plane, having a total of six fuel tanks. In each wing there were two fuel tanks located inboard between the engine and the fuselage, and one located outboard of the engine. The forward inboard tank was known as the main tank. The rear inboard tank was known as an auxiliary tank. The two inboard tanks may also have been known as main tanks. The outboard tank was known as the long range outboard auxiliary tank.

Two linemen employed by defendant Byerly Aviation, Malone and Gossick, were there to service the plane. Malone did the fueling. He had worked on the line for a couple of weeks before this date and had worked occasionally in the evenings for several months before that. He was not an airplane mechanic; he did have a private pilot's license, and he was working towards obtaining a commercial pilot's license. Malone began fueling the right outboard long range auxiliary tank. In the course of this operation Gossick observed fuel leaking out of the bottom of the center section of the right wing. Gossick called Malone's attention to this fact and the fueling was stopped. Malone and Gossick notified Walter Staker, a vice-president of Byerly Aviation and Staker opened approximately 10 inspection plates in the bottom of the right wing to allow the fuel to escape and evaporate.

The pilot and co-pilot were gone approximately a half hour. When they returned the Byerly personnel told them about what had happened and pointed out the area where gasoline was leaking. At that time gasoline was still dripping and the area below the wing was damp from gasoline that had already fallen. Gasoline fumes also could be smelled. The bill for gasoline was paid and 87 gallons put in the right outboard auxiliary tank were taken off the bill.

There was no urgency requiring the crew to leave. The inspection plates were closed up by the pilot with Staker's assistance. The pilot and co-pilot stood outside the plane for 15 or 20 minutes. The co-pilot made no attempt to locate the source of the leak. The pilot and co-pilot did confer as to the advisability of taking off with the airplane.

The pilot and co-pilot then got aboard, at which time gasoline was still leaking. Miller started the engines. When the engines were started there was an 'afterfire' and then an explosion. The DC-3 was equipped with Pratt & Whitney radial engines which have a tendency to 'afterfire'. The afterfire is caused by an excessive amount of fuel in the cylinders. Excessive fuel can be introduced into the cylinder by the pilot starting the engine with the fuel selector in the rich position when it should be in the idle cut off position, or by moving the fuel selector from the idle cut off position to the rich position too quickly or by excessive priming. The excess fuel goes out the exhaust pipes as flame and exits outboard of the engine and beneath the wing.

The explosion ripped the rear center sections of both wings and caused fire damage to the fuselage. After the occurrence Robert Oelker, an investigator for the National Transportation Safety Board, made an investigation and inspected the aircraft.

The right outboard auxiliary tank had a fuel line running from the tank to the cockpit. The line was metal for the most part. However, at a point in the rear center section of the wing in the area of the damage, the line made a 90 degree turn. At that point a connector hose made of rubber tubing was utilized.

Oelker's tests showed that fluid ran out of the line at that point. Closer examination showed that there was a crack which measured one and three quarters inches diagonally on the exterior of the hose and approximately one inch of the same crack was exposed and open on the inside of the hose. Testing and examination of all other parts of the fuel system showed no defects.

The plaintiff, Watson, testified that he was hired by Standard Steel in 1962 and was employed as chief pilot for that company. In that capacity he supervised the pilots who flew the plane and the mechanics who serviced it. He testified that if the outboard auxiliary tanks were not used periodically, the lines and the seals for them would dry out and deteriorate. He initially testified that he verbally instructed the pilots to use the outboard auxiliary tanks for that reason. After his deposition testimony was read he testified that no verbal instructions were issued as such 'it was just common knowledge among us all that we kept them fueled out there to keep the seals and hoses and valves wet, otherwise they will dry out and deteriorate.'. He could not remember when he last used the outboard tanks. To the best of his knowledge there was gasoline in them when he flew the plane the day before the occurrence. However, he admitted that he could not remember looking at the fuel gauge which was the way he could tell if gas was in those tanks.

The co-pilot of the plane, Hann, testified that to his knowledge the outboard auxiliary tanks were never used at all. He had been employed for six months before the occurrence and had flown the plane 30 to 50 times and had never filled the tanks. He also testified that if all six tanks were used the plane would be at its full gross weight capacity.

The plaintiff, Watson, testified that he had certificates from the Federal Aviation Agency and the Public Utility Commission of the State of Pennsylvania as an air taxi operator doing business as Air Charter Service. He had become employed as chief pilot for Standard Steel in 1962. In 1964 he purchased the DC-3 and entered into a verbal 'lease' with Standard Steel for the use of that plane. Prior to May 1, 1966, Watson hired the pilots and mechanics who flew and serviced the plane. On May 1, 1966, those persons were transferred to the payroll of Standard Steel. From that time on over 99 percent of Watson's flights were performed in the service of Standard Steel.

As chief pilot for Standard Steel, Watson's duties included supervising the scheduling of the aircraft and the maintenance of the aircraft. He supervised the entire flight operation.

At the time of the fire the plane was valued at $65,000. It was repaired at a cost of approximately $36,000 and was out of service for approximately fifteen months. The jury awarded plaintiff $50,000.

On this appeal defendant's primary assignment of error is that the act of its linemen in putting gasoline into the wrong tank did not as a matter of law constitute negligence proximately causing the damage to plaintiff's plane. As a corollary to this argument it is defendant's contention that under the circumstances the damage was the direct and proximate result of improper maintenance of the plane or pilot Miller's conduct.

In support of the judgment plaintiff argues the explosion and fire on the plane were proximately caused by defendant's wrongful conduct in filling the wrong tank. It is a well settled rule of causation that if the negligence does nothing more than furnish a condition by which the injury is made possible and that condition causes any injury by the subsequent act of a third person, the two are not concurrent, and the existence of the condition is not the proximate cause of the injury. Seith v. Commonwealth Elec. Co., 241 Ill. 252, 89 N.E. 425 and Jilek v. Missouri Pacific Railroad Co., 13 Ill.App.2d 518, 142 N.E.2d 708. Following and approving Seith v. Commonwealth Elec. Co., supra the court in Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665, observed, 'The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party's own negligence. . . . If the act of a third party is the immediate cause of the injury and is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong, the connection is broken and the first...