Hager v. Mooney Aircraft, Inc.

63 A.D.2d 510, 407 N.Y.S.2d 978, 1978 N.Y. App. Div. LEXIS 11373

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1978
• Status: Published

Opinions

OPINION OF THE COURT

Lane, J.

The decedent, Joseph Hager, was killed in an airplane crash on December 2, 1969. He was flying in the airplane with his wife, Jeanne E. Hager, the aircraft being known as the Mooney Model M 20 E. One of the component parts of the engine of the M 20 E is a fuel-injection system known as Model RSA 5ADI. That fuel-injection system was designed and manufactured by the Bendix Corporation. The engine itself was manufactured by Avco-Lycoming Corporation. The M 20 E can best be described as a small, single-engine airplane which has two wing tanks. The fuel capacity of each tank is 26 usable gallons. Fuel is drawn from only one tank at a time. There is a lever on the floor adjacent to the pilot which when switched to the left draws on the left tank and when switched to the right draws on the right tank. The switching is mechanical in nature.

The accident occurred in the early evening of December 2, 1969, when Mr. Hager, while accompanied by his wife, began his flight from Mabin airport near Windham, New York, and was en route to Westchester County airport. After the M 20 E reached cruising altitude, the fuel-pressure gauge dropped and the airplane began to lose power. Hager made efforts to correct the condition, including switching on an electric booster pump and switching fuel tanks; however, the power was not restored and the plane ultimately crash-landed on Academy Street in Poughkeepsie, New York. After the plane landed on the roadway, it swerved, struck a tree, and a portion of the left wing was sheared off. This resulted in the immediate death of Mr. Hager and caused Mrs. Hager to sustain serious physical injuries. The right fuel tank remained intact and was found to contain approximately 13 gallons of fuel. The left fuel tank was ruptured.

Jeanne Hager brought this lawsuit both individually and as administratrix of the estate of her husband, Joseph Hager, against Avco Corp. and Bendix Corp.¹

The sole theory upon which liability was sought to be imposed upon the defendants Avco and Bendix was that there was a defect in the screen in the fuel injector which was incorporated in the Avco engine. This defect allegedly caused clogging of the strainer, resulting in a loss of fuel to the engine, which in turn resulted in the airplane crash.

This case was tried by a court without a jury, and the court made findings of fact and conclusions of law which included a finding that there was fuel in the left tank at the time of the crash which spilled out when the left tank was ruptured; that the proximate cause of power failure and resultant crash was a blockage by unknown contaminants of the fuel-injector screen in the Bendix RSA 5ADI fuel injector, which prevented a sufficient flow of fuel to the engine to enable the M 20 E to maintain altitude; that the fuel-injector screen was defective in that it did not insure adequate continuous fuel flow at all times; that neither Mr. nor Mrs. Hager, by exercising reasonable care, would have discovered the defects in this engine and realized the danger; and that neither Mr. nor Mrs. Hager was contributorily negligent.

Our review of all of the evidence leads us to the ineluctable conclusion that the proximate cause of the power failure and the resultant crash were not due to any blockage in the Bendix fuel injector. Our analysis of the evidence will be divided into three parts: The first part will weigh the evidence adduced as to whether or not there was usable fuel in the left tank at the time of the crash. The second part will be concerned with the presence of contaminants either in the fuel tanks or in the fuel which could possibly clog the screen. The third part, assuming the presence of contaminants, will explore whether the screen was capable of being clogged to such a degree that there would be a total power loss, as occurred in the case at bar.

part I

Fuel Left in the Tank at the Scene of the Accident

Several people testified that they were at the scene of the crash very shortly after it occurred. Mr. Fred B. Kacena, employed by the Federal Aviation Administration, observed that the left fuel tank had been ruptured, that the fuel-selector valve was on the left-tank position, and that fuel was being siphoned out of the right tank, which siphoning was done by a Mr. Dennison, who operated a shop at an airport nearby.

Another person at the scene of the accident was Stuart Carlin, who, upon reaching the scene, smelled the odor of gasoline, which Carlin conceded, however, could have arisen because the engine had been severed from the airplane and the fuel lines had ruptured as a result of the accident. The fuel present in the fuel lines could have "back-flowed” on the ground, which would cause an odor of gasoline. Furthermore, he conceded that every tank of gasoline in an airplane contains a small quantity of "unusable fuel”; that is, fuel at the bottom of the tank which collects in a strainer which cannot reach the engine but which nonetheless remains at the bottom of the gas tank, and he said that the odor could have been caused by the flowing of that small amount of unusable fuel.

Charles Maggiacomo, who operates an automobile "speed shop” and had also been a pilot since 1962, testified that, upon arriving at the scene of the crash, he immediately began to examine for gas leaking in the area in order to determine whether or not there was any danger of an explosion. Maggiacomo was quite familiar with the odor of gasoline and with the odor of burning gasoline because his business dealt with racing cars. He could distinguish between the spilling of a whole gallon on the ground in an area, as opposed to spilling of a small amount. He also stated that he examined underneath the tanks and dug into the ground to see if there had been any absorption of moisture and found that there was none. This evidence could lead to the conclusion that the left tank was empty prior to its rupture. However, this was not the only evidence adduced which could lead one to the conclusion that there was no gasoline remaining in the left tank at the time of the crash.

Further evidence was adduced indicating that the only gasoline sold to Captain Hager within the immediate days prior to the accident was on November 17, when 48.3 gallons were pumped into the gas tanks by Garry Henry, an employee of Westair, located at Westchester County airport.

Philip O’Brien, Jr., who had been in the Air Force after graduating from West Point in 1949 and who had flown both jet and regular engines, and who also acted as a maintenance officer on flight tests, retraced the traveling of the Hager airplane from the time of refueling when it then had a full 52 gallons until the time of the crash, and, based on his calculations of average fuel used and additional fuel used on takeoffs, found that there would have been approximately 13 gallons left at the point of impact. The rate of fuel consumption could not be determined with pinpoint accuracy because, on takeoff, additional fuel is used to generate needed additional power and furthermore, on cruising speed, the pilot can adjust the mixture of the fuel with air intake to make either a lean or rich mixture (the richer the mixture the more fuel used per hour, of course). In addition, the flight taken by Hager was retraced with another Mooney aircraft which was piloted by Andrew Thom. During that trip Thom used 43.3 gallons of fuel for the exact same flight. Of course, Thom conceded that he was running a richer-than-usual mixture when he took this flight because he had a new engine requiring a higher fuel mixture. This richer mixture could account for the difference between the use of 39 gallons by Captain Hager versus the 43.3 gallons used on the simulated re-created trip.

All of this testimony in the aggregate, however, leads convincingly to the conclusion that the left tank was bereft of usable fuel at the time that the airplane crashed.

part II

Contaminants in the Fuel

There were 13 gallons remaining in the right fuel tank after the crash in this case, which were taken for analysis and found to contain 1.5 mg of contaminants per gallon.² Minimum Federal standards for aviation fuel require that no more than 6 mg per gallon of contaminants be found in aviation fuel. Expert testimony revealed that this level of contaminants meant that fresh fuel was in the tanks and would not have led to clogging of the fuel-injector screen.

Plaintiff during the course of the trial made much of a notation in the Bendix Maintenance Manual which stated: "Numerous reports of gradual fuel pressure loss have been traced to this finger strainer [located in the Bendix fuel injector] becoming plugged with dirt and a varnish-like substance that is almost invisible to the naked eye.” The overwhelming weight of authority in the expert testimony at trial indicated that varnish-like substances do not appear in 100-octane aviation fuel. Furthermore, one of the experts, Kenneth Kohlof, of Industrial Testing Laboratories, located in New York City, tried to create a varnish-like substance in 100-octane aviation fuel and could not do it.³ All of the experts testified that in order to create a varnish-like substance one would need as ingredients either stale fuel, or aromatic products in the fuel, and very high temperatures (that is, exceeding 400°F.). Further testimony showed that the aviation fuel in an M 20 E aircraft would not reach a temperature of over 150 degrees F.; 100-octane aviation fuel also does not contain aromatic material.

Testimony of William Mulokey revealed that stale gasoline had a distinctive odor similar to varnish and could cause deterioration of synthetic rubber parts which, in turn, could cause gummy deposits. In the case at bar, however, the fuel was concededly fresh and was shown to be free of any other contaminants. There was also testimony that it would be unusual for contaminants such as rubber or pieces of hair to get into an aircraft fuel tank, even when it was being refueled. It would appear, therefore, that neither staleness nor the possibility of contaminants being present in the fuel was a fact to be considered in determining this case.

part III

The Fuel Injector Screen

The fuel injector has affixed to it a screen called Dutch twill weave, which consists of two screens adjacent to each other. The screens are meshed in such a way that no hole goes directly through the screen and a particle starting on the inside of the screen cannot move directly to the outside but has to "find its way” in a tortuous fashion. The screen used was 74 microns. Seventy microns is described as .0027th of an inch, or the equivalent of the diameter of one human hair. That means that a 74-micron screen would have openings ever so slightly larger than one human hair. The actual screen which was in the fuel injector involved in the crash was tested and found to be free of contaminants. The test which was made was called a "flow test”, which was done at the Lycoming plant in Williamsport, Pennsylvania, in the presence and supervision of a representative of the FAA and a representative from the National Transportation Safety Board. Pressure was placed on the screen to simulate normal airflow, and there was no showing that the screen had been blocked or plugged. Furthermore, testimony of William Thayer, the mechanic who serviced the Hager plane, indicated that the fuel-injector screen in this engine had been cleaned 54 hours prior to the accident at a normal cleaning operation, which involved soaking the screen in a solvent and then blowing it clean with a pressure gun. Contrary to the testimony of plaintiffs expert, Henry Powers, this is the method that is used to clean all aircraft strainers. William Thayer, the airframe and power-plant mechanic who actually cleaned the screen involved, testified that the method he used was utilized in cleaning screens when he worked for American Airlines; when he worked on jet fighters for Republic Aviation; and when he worked for Sadler Aviation at Danbury airport. James Champion, a mechanical engineer, who was the joint holder of a patent on the Continental fuel-injection system, also testified that the use of a solvent and air blowing was a proper screen-cleaning method.⁴

Enzo Montana, a department head at the Henry Abbott Technical School in Danbury, Connecticut, also testified that an accepted method of cleaning was the one used by Thayer.

A mere visual observation of the screen would be inadequate to show any contaminants in the screen itself; however, the screen of Hager’s aircraft was not only flow-tested but was microscopically examined and found not to contain any contaminants. None of the experts who testified found that there was any history of either a varnish-like substance or any other substance clogging the fuel-injector strainer. No reported accidents were introduced as resulting from a clogged fuel-injector strainer. There was one instance of clogged strainers shown; however, it did not involve a varnish-like substance and the fuel injector had a 40-micron screen, which is a much finer screen than the 74-micron screen in the M 20 E. Furthermore, the problem involved a plane other than an M 20 E. The reason, however, for the clogging of the injector in that engine was clearly explained and related to the fact that the fuel tanks in that particular airplane were manufactured by molding rubber around the cardboard mold and then reaching in and ripping out the interior cardboard. Not all of the cardboard could be ripped out, and during the course of this process hair or particles of lint from the sleeves of the person removing the cardboard would invariably remain inside the tank. When the tank was filled with fuel, the fuel would carry these contaminants to the filter and the filter would then become clogged. When the screen was changed to 74-micron size, that clogging did not occur. Furthermore, there was no evidence adduced at this trial that there were any contaminants in the fuel or in the fuel tanks which could result in the type of clogging which occurred in that prior instance, and the aircraft was manufactured by a company other than Mooney.

The statement in the Bendix manual about "numerous” incidents involving varnish-like substances clogging fuel-injector strainers was traced back to an early 1958 manual which was drafted by an individual who consistently used the phrase "numerous instances” as a cautionary device but not because there was documentary proof thereof. That cautionary language was carried forward through inadvertence to the newer manual. In further testimony, it was elicited that even if the fuel strainer were more than 99% clogged there would still be sufficient fuel capable of going through the strainer so that the airplane engine would not stall, and there would be sufficient power to maintain altitude in the airplane. The evidence adduced at trial showed that there was no imminent need to incorporate a bypass in fuel-control systems. The knowledge regarding incorporation of bypasses in engines was no secret in the aviation industry and was known as early as the 1940s. Yet plaintiff’s own expert, Henry Powers, testified that the engine fuel-control systems of which he was aware contained no bypass provisions on their fuel controls. The reason for not incorporating such bypasses is readily explained. Though there was no bypass in the fuel-injector screen, its safety factor and "survival engineering” lay in the fact that it could be almost totally clogged and would still operate adequately.

James Champion, who, as mentioned previously, was joint patent-holder on the Continental fuel injector, testified in this regard as follows:

"Q Sir, based on your own experience in the design of Continental fuel strainers and based on your familiarity with the state of the art and the engineering principles which pertain thereto and based on your examination of the Bendix finger strainer and based on hearing Dr. Fitch’s testing of the filtration or catch capacity of that particular weave, in your opinion, did the Bendix fuel injection strainer which you hold in your hand meet the generally accepted engineering principles and/or state of the art design principles which were in existence in approximately 1960?

"A In my opinion, yes, it meets it, apparently, for their filtration size requirements for structural integrity and certainly for capacity, when you consider the testimony of how much of it could be clogged before it restricted flow. The margin of safety is tremendous.

"Q Well, now, assume that Mr. Ware, himself, said it was even at 99.96 percent clogged you could still develop 34 percent power, does this indicate to you that there is a safety margin present in that particular design?

"A Yes, in my opinion, is a great safety margin if you have this much area and it can still function down to the percentage of clogging that we have heard under the testimony.

"Q Sir, further to the safety margin, together with the 3.6 square inches of area, coupled with the recommendation of the manufacturer to clean it every fifty hours, does the recommended periodic maintenance also contribute to the high safety factor of the Bendix finger strainer?

"A Yes, it would.”

Similarly, Ernest Fitch, a professor of mechanical engineering at Oklahoma State University, commented about the safety of the one-piece screen by stating:

"Well, I would have to conclude from my tests that this filter is—does not need a bypass valve to protect it because I doubt if you could even plug it in as long as you have the airplane. I think it will keep sloughing the particles off and recycling itself.

"If you just take a chance and just take it off and with a little bit of care, I think it’s all it would require.

"Now, I base this upon the curve of the plugging characteristic curse [sic] because this curve because this curve [sic] is showing that it would still provide adequate flow for that engine when it’s 99.—well, even—what was it, Mr Ware said?

"Q 99.96.

"A 99.96 plugged, using his own figures.

"This is in the hundreds and hundreds, may be a thousand hours it would take to plug it that much.

"Now, that is, safetywise, if there is—supposed to clean an element every hundred hours when they go in for maintenance and if you provide sump, that will give it maybe five to ten times that as a safety factor in hours. I don’t know what else could be done.

"And I think it would be much better to do that than to even provide a—some kind of a moving parts bypass which is in his—well known to leak. A bypass valve is normally going to leak particles passed. And it can contaminate the downstream side. And the trend in many systems today and a trend that Pall Corporation is promoting is ful, [sic] flow filters, no bypass, no nothing.”

Finally, Simon Ross, who was at one time employed by the Federal Aviation Administration as chief of the power-plant section, testified that during his work with that agency he personally granted certification to over 40 engines incorporating the one-piece Bendix strainer between the years 1965-1969. That certification meant that the model approved was satisfactory to the Government.

In sum, the expert testimony indicates that the fuel-injector strainer was not clogged and that the left fuel tank was empty at the time of the crash. The coincidental confluence of an empty left fuel tank and the simultaneous clogging of the fuel-injector screen were found by the Judge and conceded by counsel for the plaintiff to be highly improbable. It would appear that the clogging of the fuel-injector screen was not the proximate cause of the crash. Furthermore, there was no convincing proof adduced that the design of the screen was defective because of the flow through the screen being "in-out” versus "out-in.” It was claimed by the plaintiff that the "in-out” flow pattern of the screen allowed contaminants to be trapped in the interior of the screen where they would remain invisible and unnoticed until a clogging occurred. However, other experts involved in filter-screen design (James Champion and James Kirwin) noted that the choice of "in-out” flow versus "out-in” flow is dependent upon the space allotted in the aircraft frame for the engine and both patterns are equally safe. Furthermore, any contaminants collecting in the screen would be purged at the 50-hour inspection of the aircraft. If a blockage, as hypothesized by plaintiffs experts, existed at the time of takeoff from Mabin airport, the fuel-pressure gauge would not have reflected ability of the plane to take off, since at takeoff time more power is required.

A few additional observations regarding the expert testimony are in order. The testimony of Joseph Ware, characterized in the dissent as a "highly qualified expert,” was refuted in significant aspects. Ware had indicated that the symptoms of fuel-pressure loss described by Mrs. Hager were inconsistent with a possible fuel blockage upstream of the fuel-injector system. The latter-type blockage, Ware testified, would cause the pressure needle to fluctuate rather than stabilize. Tests performed by Paul Gunberg, holder of a master’s degree in civil engineering and an employee of the Bendix Corporation, revealed that a restriction in the fuel line upstream of the pump would not cause any significant variation on the pressure needle. Ware’s description of the symptomatology of the engine’s stopping completely was refuted by the sound films placed in evidence and described in the testimony at trial, and his description of the drop in pressure due to fuel-injector blockage was refuted by Ernest Fitch, professor of engineering at Oklahoma State University and director of the Fluid Power Research Center. The validity of the testimony of Henry Powers can also be readily called into question since he admitted that he "never worked on any fuel controls on any engines, as far as design work.”

The credence of Powers as an expert regarding the fuel-injector screen was effectively nullified in the analysis of his testimony by James Champion, the joint patent-holder of the Continental fuel-injector system. Powers had opined that the only bypass system available in general aviation aircraft was to be found in the Continental fuel injector. Champion, who designed that injector, categorically denied the existence of such a bypass.

In sum, the record before us does not reveal a "parade of industry witnesses” whose testimony is "weak” and should be deemed incredible but, rather, it is the testimony of plaintiff’s experts which is sharply called into question and which presents significant roadblocks, as illustrated, preventing a finding in favor of the plaintiff.

The dissent makes much of the destruction of documentary evidence by Bendix and Avco. William Bruns, an employee of Bendix, described that after reports were received and acted upon they were destroyed. The succinctly stated reason was that once a problem was pinpointed and cured no purpose was served by retaining the records. This does not mean that the plaintiff was deprived of documentary materials. It must be emphasized that the FAA records were available. Furthermore, introduced into evidence were the Mooney Aircraft Company reports from 1960 to 1970 reflecting reports regarding malfunctions or defects.

Our review of the testimony of Mrs. Hager regarding her observations immediately prior to the crash, and its comparison with the re-creation of the flight, further reinforce our conclusion that the cause of the accident was not a clogging of, or a defect in, the fuel-injector screen incorporated in the Lycoming engine used in the M 20 E aircraft. Mrs. Hager testified that she did not observe her husband while he made the "walk-around” of the aircraft prior to takeoff. She did not see him unscrew the gas-tank caps to check the fuel level. She could not testify from which tank the plane was drawing fuel at the start of this last flight. Mrs. Hager, in her own testimony, admitted that she could not have known by looking at the fuel indicators how much fuel was left in the tank. On cross-examination the following question and answer were elicited:

"Q And did you state on direct examination, Mrs. Hager, that your husband told you that you must not rely on your fuel quantity gauges in the aircraft?

"A Yes, sir. That’s true.”

She further testified that, after the plane had reached its cruising altitude, her attention was drawn to the fuel-pressure gauge and she noticed at that time that it was dropping steadily and gradually. She noticed her husband was then working with the fuel-booster pump and the fuel-mixture control, and reaching between the two seats to the tank-switching mechanism. However, Mrs. Hager could not see whether her husband was actually switching it because of the relatively cramped space and the fact that her vision was blocked during such maneuver by her husband’s shoulder. Assuming, as the dissent does, that the plane was being fueled from the right tank and that then Mr. Hager switched to the left tank, we need not reach the conclusion that the fuel-injection screen was clogged. There was evidence introduced offering an equally plausible explanation; namely, a restriction occurring in the fuel lines prior to the fuel reaching the injector system.

Simulation of this last portion of the flight prior to crash, utilizing an M 20 E aircraft with the left tank nearly empty, resulted in the fuel-pressure gauge flickering and then steadily dropping. A throttle adjustment and switching to the right tank could start the engine again. It was hypothesized that Hager, in the excitement of the moment, may have switched the selector to the right tank and then not have left the fuel selector in that position long enough for the engine to catch. Furthermore, the throttle may not have been in the correct position for restarting the engine.

The test flights which were made, in which the left fuel tank was allowed to dry out and become empty, showed that the plane was capable of gliding for a period of between five and eight minutes without engine power, which would have been sufficient time (theoretically) to glide down from approximately the point where the engine stalled to the nearest airport. The expert testimony adduced on behalf of the plaintiff regarding the last moments of flight was undermined totally by detailed testimony of the defense witnesses; for example, one of the plaintiff’s experts said that if there were a loss of fuel and gliding for five minutes there would be no noise. This was contradicted by other experts and by a sound film simulating the occurrence. The re-creation of the moments before the accident effectively mimicked the description given by Mrs. Hager, who survived the crash. Any discrepancies could be attributable to Mrs. Hager’s being preoccupied at that time (e.g., with trying for two or three minutes to ascertain the frequency of the radio tower at the nearest airport).

The plaintiff clearly has failed to sustain her burden of casting either Avco or Bendix in liability in this case. The evidence with regard to the fuel leads overwhelmingly to the conclusion that there was no usable fuel in the left tank when the M 20 E struck the ground, contrary to the finding of fact made by the trial court. Furthermore, there is no showing that there was a design defect in the Bendix injector screen, that the screen was clogged, or that its malfunction was the proximate cause of the accident. The court, reaching that conclusion, was engaging in speculation, which is not a substitute for proof when one seeks to attribute blame for an unexplained accident (Kelly v Otis Elevator Co., 283 App Div 363, 367, affd 308 NY 805). When the plaintiff has not met the burden of proof, the action must fail (Schwartz v Macrose Lbr. & Trim Co., 29 AD2d 781, affd 24 NY2d 856). Here there are equally plausible explanations for the occurrence; namely, that there was a clog in the fuel line, or that the pilot did not allow enough time for the engine to restart on the right tank, and that there was no fuel in the left tank. In such a situation, one cannot make a selective application of one of the explanations and claim that that is sufficient to cast a defendant in liability (Friedman v Medtronic, Inc., 42 AD2d 185, 187).

In our analysis, we have kept in mind that our primary function in reviewing a record on appeal is not to test the credibility of witnesses, since that is best left to the trier of the facts who heard the live testimony (Amend v Hurley, 293 NY 587, 594; Kelly v Watson Elevator Co., 309 NY 49, 51). Our determination should rather rest upon whether plaintiff has met the burden of proving her case by a fair preponderance of the evidence. In a nonjury case, this court may grant the judgment which, upon the evidence, should have been granted by the trial court (De Mayo v Yates Realty Corp., 35 AD2d 700, 701, affd 28 NY2d 894), after having given appropriate weight to the credible evidence adduced (Spano v Perini Corp., 25 NY2d 11, 19).

In the case at bar, the speculations of the plaintiff’s experts cannot be said to outweigh the specific and scientific tests introduced into evidence by the defendants. In order for the plaintiff to prevail, she must prove her claim: that the proximate cause of the accident was a clogging of the fuel-injector screen. We find that plaintiff has not met this burden. In making this determination, we note that the Noseworthy rule is not applicable to the case at bar. The rule in essence is that "in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence” (citations omitted) (Nose-worthy v City of New York, 298 NY 76, 80). The rule therefore is applied when there are no eyewitnesses to the occurrence, and the participant is incapable of testifying either because he is dead (Noseworthy v City of New York, supra) or amnesiac (Schechter v Klanfer, 28 NY2d 228; Wartels v County Asphalt, 29 NY2d 372, 380). In the case at bar, Mrs. Hager, a participant in the occurrence, did testify. Her description of the physical situation and the actions taken by her husband were quite detailed, including her observations of gauges in the cockpit, the procedures prior to the crash-landing, and the course of action her husband took from the inception of the occurrence. In these circumstances, the Nose-worthy rule loses its significance both with regard to Mrs. Hager’s individual claim as well as in the wrongful-death action.

Even if we were to consider the evidence through the lesser degree of proof required by the Noseworthy rule, it would appear that plaintiff has not even met that lesser burden. Viewing the evidence adduced in the light most favorable to the plaintiff, there is, therefore, but one conclusion that can be reached; namely, that the complaint against the defendants must be dismissed. Accordingly, the judgment of the Supreme Court, New York County (Fraiman, J.), entered March 1, 1977, in favor of the plaintiff, should be reversed, on the law and the facts, and the complaint dismissed, without costs.

1 . Initially there were six named defendants: Mooney Aircraft, Inc., Aerostar Aircraft Corp. of Texas, Butler Aviation International, Inc., Gulf Oil Corp., Avco Corp., and Bendix Corp. The action against Mooney Aircraft which had been previously severed was dismissed by the court on consent of the plaintiff. Stipulations of discontinuance were filed with the court with regard to all other named defendants except Avco Corp. and Bendix Corp. Ultimately all of the cross claims asserted both by Avco and Bendix were dismissed.

2 . The M 20 E used 100-octane aviation fuel.

3 . The test was conducted by placing 100-octane fuel under 100 pounds of pressure and then placing that into boiling water for 72 hours. After removal of the pressure and cooling of the fuel, no gum or varnish was found.

4 . Continental and Bendix manufactured 99% of all domestically used aircraft fuel-injection systems.