AINSWORTH, Circuit Judge:
In this Texas diversity case involving personal injuries and a death from an airplane crash, defendant Beech Aircraft Corporation appeals from a judgment awarded in favor of an injured passenger and the surviving beneficiaries of the dead pilot. Appellant contends that plaintiffs did not produce sufficient evidence
The airplane, a Baron Model D-55 manufactured by Beech Aircraft, was relatively new and had flown less than 100 hours. The pilot, David S. Kritser, was qualified to fly multi-engined aircraft such as the twin-engined Baron.
As the airplane approached the Monahans runway with landing gear down, witnesses on the ground noticed the right engine fluttering and backfiring. Despite the pilot's efforts to regain altitude, the plane rose only slightly before spinning and falling toward the ground. Both Kritser and McCathern were killed by the ensuing impact. Although Mason survived, he sustained serious personal injuries.
Kritser's wife and children sued Beech Aircraft for damages arising from his death, as provided by 13A Vernon's Annotated Revised Civil Statutes of Texas article 4675 (1952). In a separate action Mason sued Beech Aircraft for his personal injuries. The cases were consolidated under Rule 42(a), Federal Rules of Civil Procedure, and tried before a jury on the theory of strict liability under Texas law for a defective product. To recover compensatory damages, plaintiffs had the burden of proving not only that defendant sold the Baron in a defective condition unreasonably dangerous to the user but also that such defective condition was a proximate cause of the accident. See 2 American Law Institute, Restatement of Torts, Second, § 402A (1965); Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 604 (Tex.1972); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 790 (Tex. 1967); Welch v. Outboard Marine Corp., 5 Cir., 1973, 481 F.2d 252, 254; [No. 72-1974, April 20, 1973, pp. 5-6], Olsen v. Royal Metals Corp., 5 Cir., 1968, 392 F.2d 116. Punitive damages are allowed under Texas law when death is caused by defendant's "wilful act, or omission, or gross neglect." See 3 Vernon's Annotated Constitution of Texas article 16, § 26 (1955).
Plaintiffs focused on an alleged defect in the fuel system of a Baron aircraft similar to that piloted here by Kritser. Because the Baron wing tank contains no internal device such as a baffle to restrain the movement of fuel away from the fuel outlet located in the aft, inside corner of the tank, there is an interruption or "porting" of the fuel supply to the engine when the plane engages in certain flight maneuvers. One such maneuver is known as a "slip." To accomplish a slip, the pilot lowers one wing and then applies the rudder in a direction opposite the lowered wing. The nose of the plane does not turn, but the plane slips sideways. Resulting forces displace the fuel away from the fuel outlet of the tank in the lowered wing.
Perhaps the most serious question in this case is whether a slip occurred. Mason testified that as the plane came into the Monahans area and just prior to approaching the runways the pilot dipped the right wing so that they could observe a large pipe yard out to the right of the aircraft.
The jury's answers to questions concerning directions and precautionary warnings given by Beech Aircraft to Kritser, relative to operation of the aircraft, were in essence as follows:
The district judge did not charge the jury on punitive damages because of the notice which defendant gave. Nevertheless, Beech Aircraft was still held liable for compensatory damages since the jury made the following findings in the second section of the questions about Kritser's acknowledgment of Beech Aircraft's directions and warnings:
From the jury determination that Kritser obeyed the flight manual and still encountered engine fuel starvation from porting of the right fuel tank, the district judge concluded that the manual's directions and warnings did not absolve Beech Aircraft of responsibility for the accident and, accordingly, overruled defendant's motions for a directed verdict, judgment notwithstanding the verdict, and judgment on the verdict. The final judgment, based on jury determinations regarding the quantum of damages, awarded Betty Knight Kritser $218,000, David S. Kritser $5,000, John Knight Kritser $12,000, Ann Elizabeth Kritser $15,000, and Roy G. Mason $60,000.
Beech Aircraft raises several issues on appeal. The primary one relates to the district court's refusal to direct a verdict on the insufficiency of evidence to prove that the right main tank ported.
Our review of a jury determination is limited, as we said in Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374 (en banc):
See also Dun & Bradstreet, Inc. v. Miller, 5 Cir., 1968, 398 F.2d 218. We have already referred to the evidence presented by the plaintiffs which was sufficient to raise a factual conflict to be resolved by the jury.
Appellant contends that Holladay's opinion depends on an assumption, i. e., that the pilot applied left rudder during the right dip, which is not proven by any facts in the evidence.
Although the jury concluded that the left wing tank did not port, its conclusion did not vitiate Holladay's testimony about porting of the right wing tank. His opinion that stalling of the right engine would lead to porting of the left tank does not negate the correctness of his view about the earlier event of the porting of the right tank, since the earlier event was not dependent upon the later event. The jury might properly
Appellant also contends that the district judge should have entered judgment for defendant based on the jury's findings that Beech Aircraft gave Kritser notice about danger of displacement of fuel "under some circumstances" and that Kritser had actual knowledge of the warning against "prolonged operation in a slip or skid attitude under low fuel conditions." As authority, appellants rely on the Restatement of Torts, Second, § 402A, comment j; Helene Curtis Industries, Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841, 861; Ward v. Hobart Mfg. Co., 5 Cir., 1971, 450 F.2d 1176, 1188.
According to comment j in the Restatement, a seller may be required to give a warning in order to prevent a product from being unreasonably dangerous. Then the product "is not in a defective condition" if the product "is safe for use" when the warning is followed. Beech Aircraft cannot simply give a general warning. The warning must be adequate to make the airplane safe when the warning is followed. Here the jury expressly found that Kritser followed the recommended procedures set out in the owner's manual and operated the aircraft in conformity with the warning against prolonged slips under low fuel condition and further found that the fuel system defect still proximately caused the accident. Thus, the warning was inadequate to make the product safe.
In Ward the Court was concerned with defendant's allegedly negligent failure to warn about the dangers of using a meat grinder. We noted that plaintiff was conscious of the consequences of inserting her hand in the meat grinder while it was operating, so it seemed superfluous to require the manufacturer to issue a warning against a known danger. Accordingly, we reversed the judgment against the defendant manufacturer. But the dangers from a meat grinder are obviously more apparent than the hidden dangers from displacement of fuel within the airplane's fuel tank. Beech Aircraft's responsibility was not discharged by raising the specter of danger "under some circumstances," such as "prolonged operation in a slip . . . under low fuel condition," without defining "prolonged" or "low fuel condition." A subsequent warning issued by the company,
The Helene Curtis case was continually cited and discussed by appellant, not only in briefs but also in a letter to this Court following oral argument. The Helene Curtis case concerns the scope of duty imposed by strict liability. Where the manufacturer produced a product which was not marketed for use by the ordinary customer and warned "FOR PROFESSIONAL USE ONLY—NOT FOR PUBLIC SALE," we held that the manufacturer could not be held liable for any damages suffered following an unforeseeable resale by a beauty parlor to an amateur beautician who was injured by the product. The case is inapposite here because Kritser was clearly an intended user of the airplane.
We believe the district judge properly refused to submit the issue of punitive damages to the jury.
Mason's memory of a "slight turn" is not inconsistent with a slip maneuver. During a slip when the right wing is lowered, there is still a sideways motion toward the right while the nose of the plane is yawed back toward the original flight path by the application of left rudder. The longitudinal axis of the aircraft lies at any angle to the flight path as the slip continues.
Mason's testimony about the Halliburton yard being "straight off the right wing" at the time of the dip does not preclude an inference that the dip occurred a sufficient time before the plane reached a point where the engine began backfiring.
The salient part of the hypothetical question, based on facts in the record, posed to Holladay by plaintiffs' counsel was as follows: