Mayday Over Wichita (18 page)

The best of pilots are stalled when trying to fight their way through this mechanical failure, which often attacks without warning—a subtle killer.

T
HE
P
RIMARY
C
AUSE

Although no “secret report” was ever uncovered, the Collateral Investigation Board Report, released by the air force ten months after the crash, contained three volumes, including 187 pages of testimony from forty witnesses, thirty-seven exhibits, autopsy reports and sixty-nine photographs. The main cause of Raggy 42's crash was made clear:

The primary cause of this accident was a rudder control system malfunction producing roll, yaw, and nose left skid of such magnitude as to compromise control of the aircraft and preclude proper interpretation and corrective action by the pilots in the short time available
.
³⁵⁴

Chester I. Lewis, who read the contents of the report, revealed his conclusions in a motion filed on behalf of the plaintiffs in October 1965. First, according to Lewis, the tanker “was of dangerous and defective design” and crashed “due to violent severe power rudder deflection.”
³⁵⁵
Second, there were training issues in dealing with unscheduled rudder deflection. Finally, “Boeing failed to test and determine compatibility of component parts of the airplane.”
³⁵⁶

M
ISSING
F
ACTS

As the renowned historian David McCullough once said concerning the difficulty of facts and evidence while interpreting history: “You can have all the facts imaginable and miss the truth, just as you can have facts missing or some wrong, and reach the larger truth.”
³⁵⁷
In this particular historical tragedy, facts are undoubtedly missing. It is impossible to know what exactly took place onboard Raggy 42 during its brief, four-minute flight. The crew and the wreckage are long gone. The majority of individuals possessing knowledge of the investigation are now deceased (including Judge Brown, who died in 2012 at the grand age of 104). All that remains is the Collateral Board Investigation Report and the eyewitness testimony that was dutifully recorded.

Nonetheless, by combining the troubled mechanical history of Raggy 42—the broken boom that caused a last-minute switch in flight crews, numerous write-ups for autopilot malfunction, issues with the rudder and autopilot only days before—eyewitness testimony, the manner in which it crashed and the detailed report provided by the air force, a clearer picture emerges. All of these factors combined depict a failed autopilot, an unscheduled rudder deflection and two pilots fighting desperately to save a doomed plane headed into an upside-down nose-dive at 20
^th
and Piatt.
³⁵⁸
Given the scarcity of evidence to the contrary, little suggests otherwise.

15

THE SETTLEMENT PROCESS

As you know, lawyers are natural procrastinators and when this is combined with military paper shuffling the results can be most exasperating
.

—Russell E. McClure, Wichita City Manager, 1966
³⁵⁹

Shortly after the KC-135 nearly leveled the entire block of North Piatt Street, Lorenzo Pouncil—whose home was twenty-five feet away from the first house burned to the ground—received a check in the mail for one dollar. It was from the air force to repair a pole lamp. “If that's the way they want to do…that's all right,” said Pouncil after deciding he would not petition the government for any money to repair his home. Overwhelmed with the mountain of paperwork, the confusing forms and the lengthy process to receive aid, Pouncil decided, “The Lord will take care of us.”
³⁶⁰
He was not alone. The KC-135 crash not only destroyed many of the indigent families living on Piatt—in some cases as many as six family members all perishing together—but also the delayed, deficient and disproportionate settlements ensured only more grief to come.

Today's society is a highly litigious one. Lawsuits are abundant, frivolous or not, and lawmakers are more apt to place restrictions on the amount victims may receive from personal injury or death resulting from accidents. The subsequent harm from the Piatt Street crash, however, was a far cry from the examples of frivolous lawsuits and million-dollar settlements arising from tort cases today. Since the time of America's inception, individuals have accessed the courts to resolve disputes. And despite its many faults, the justice system in America today remains one of the best in the world. While it is true that monetary settlements can never replace the loss of life, they do, in some cases, help families move on with their lives and pay for the many property, hospital and funeral bills that arise after disaster strikes. Nevertheless, the settlements received by the victims on Piatt Street provided very little comfort, if any.

R
ESTRICTIVE
L
AW

Part of the problem for the meager settlements awarded to the victims stemmed from the Kansas Wrongful Death Statute in 1965 (K.S.A. 60-1902 and 60-1905). In an article entitled “A Commentary on the Kansas Wrongful Death Act,” published by the
University of Kansas Law Review
that same year, author Robert C. Casad wrote the following:

Kansas has a wrongful death act, but it is only effective up to the specified monetary maximum. In so far as damages in excess of $25,000 are concerned, it is as though Kansas had no statute. For that excess, it would seem not inappropriate to borrow the view of the states that have no wrongful death act and allow recovery for loss of future earnings
.
³⁶¹

Exacerbating the troubles for the victims on Piatt, the Military Claims Act, Section 2733, Title 10, United States Code, also placed a cap on the amount victims could receive. A letter written by air force Colonel Dwight W. Covell in response to an inquiry about the payment of damages caused by the KC-135 crash explained, “[T]he maximum amount which can be paid administratively by the air force is $5,000 and any award in excess of that amount must be reported to Congress for consideration.”
³⁶²
Based on both laws, a hefty settlement on behalf of the victims was, therefore, highly unlikely, leaving only two avenues available to obtain relief: one, file a lawsuit under the Federal Torts Claim Act against the air force and Boeing; or two, wait for relief by settlement of the claims from the secretary of the air force.

Outraged by the proposed settlements and desiring to expedite the process, a congressman for the Fourth Congressional District of Kansas introduced a bill to remove the limit on claims the government could pay to the Piatt Street victims. Congressman Garner E. Shriver, a Republican, World War II veteran and graduate of Washburn University School of Law in Topeka, Kansas, found both the lapse in processing the victims' claims and the paltry amounts deplorable.
³⁶³
“I felt it was time I made a personal inquiry for the processing of claims,” he wrote to a friend in August 1965. “[A]s a duly elected representative of the people I have a responsibility to make inquiries in a calm and collected manner.”
³⁶⁴

Previous military plane crashes occurring in 1960 in Little Rock, Arkansas, and another the following year in Midwest City, Oklahoma, set the precedent for Shriver to do something about the limitations placed on the settlements.
³⁶⁵
With the support of Secretary of the Air Force Eugene M. Zuckert and many other constituents, on February 8, 1965, Shriver introduced H.R. 4546 in order to remove the meager $5,000 limit for administrative claims.
³⁶⁶
President Lyndon B. Johnson later approved the bill on July 7.

A matter of speculation, however, surrounded the majority of administrative claims that were dismissed and then refiled as lawsuits following the passage of Shriver's Bill. Guy L. Goodwin, assistant U.S. attorney, felt the path to litigation taken by the victims was chosen in part to increase the amount of money the attorneys could receive. After all, Shriver's Bill limited attorney fees to 10 percent:

No part of the amounts awarded under this act in excess of 10 per centum thereof shall be paid of delivered to or received by any agent or attorney on account of services rendered in connection with these claims
.
³⁶⁷

But the Federal Tort Claims Act, on the other hand, allowed attorneys to receive 20 percent. With most of the lawsuits being filed after Shriver's legislation, not before, it gave the appearance that the attorneys would have, to some degree, encouraged their clients to pursue adversary litigation rather than settling for only 10 percent of the fees they were limited to under Shriver's Bill. In an unpublished letter written by Goodwin, he stated that it was “unusual that Mr. Lewis [who handled a third of the victim's claims]…would abandon administrative claims on behalf of his clients
before they had been acted upon
, in favor of lengthy litigation.”
³⁶⁸

Chester I. Lewis, however, asserted that he filed the suits because of the lack of response he received from the air force regarding the claims. He also expressed the desire to obtain the accident report in order to find out why the plane crashed and to assign liability. Wichita attorney Dale W. Bruce agreed, in part, with Lewis. In a letter dated two years later, April 21, 1967, to Congressman Shriver, Bruce stated:

We were informed that the lawsuits were filed because the claimants who had sued were fearful that if they sued within two years they would have no basis for recovery except by decision of the Secretary of the Air Force and that there would be no appeal from a negative decision by him…Now that the two year statute of limitations has passed, the pending lawsuits are the only way of recovery for those who have sued apparently
.
³⁶⁹

Whatever the reason, it would take years before the victims on Piatt finally received restitution.

T
HE
D
ELAY

“There is a lot of talk in sections of town,” said Cornelius P. Cotter, a WSU professor, in a letter to Shriver, “…about the delay in the handling of the KC-135 damage suits, chicanery on the part of the air force, or delay in the handling of administrative claims against them, and so on.”
³⁷⁰
Part of the blame for the postponement was the two-year statute of limitations that had to expire before the cases could be consolidated and set for trial.
³⁷¹
The decision agreed upon by the victims' attorneys to forego the administrative claim process and take the matter to trial, moreover, caused further delays.

Additionally, the plaintiffs, in a search to prove the air force's negligence, petitioned the government to provide data on every KC-135 crash that had occurred since its introduction into the air force. Judge Brown briefly halted the lawsuits in 1967, ordering the government to produce all the data on KC-135 accidents for only the past three years. Brown claimed that the limited search of three years was more appropriate since the earlier KC-135 models had been extensively modified.
³⁷²
Thus, with the many obstacles and lapses occurring for various reasons since the first suit was filed in March 1965, an expedited settlement of the cases did not take place.

In the meantime, whether because of the encouragement of their attorneys, distrust of the government or fear that it somehow constituted a final settlement or loan, many of the victims did not take the emergency relief money provided by the air force. As a result, many went into debt trying to repair homes and pay hospital bills. “I heard shortly after the crash that the U.S. Air Force was offering loans of up to $1,000 to help,” said survivor Clarence Walker. “I didn't want to borrow any money so I didn't inquire further.”
³⁷³

T
HE
F
AIR
-M
ARK
C
OMMITTEE

In 1967, after a lapse of two years, several members of the Wichita community took action. The Fair-Mark Committee (composed of church members from the Fairmount United Church of Christ and the St. Mark United Methodist Church) was formed to address what it saw as “the injustice of the treatment of Negro and poor white people by political, social, and economic forces that are predominantly white controlled.”
³⁷⁴
Consequently, after hearing the dissatisfaction among survivors, the committee sought means for a “speedy” and “adequate” way for the victims to receive their settlements. It started by surveying 137 individual and family contacts affected by the crash, and then it compiled a thirteen-page report on its findings. Report in hand, it inquired of Congressman Shriver whether the secretary of the air force could settle claims quicker than litigation in court.

In a letter to Shriver, the committee asked, “Why has not or why cannot the secretary of the air force settle all of these claims without the trouble and expense and delay of all these lawsuits?”
³⁷⁵
Their inquiry led to several correspondences from Shriver's office to the secretary of the air force questioning the status of the claims. Although Shriver initially began his inquiry into the matter in 1965, H.R. 4546 allowed the air force to “report to Congress within 30 months after the enactment of this act” on claims submitted and settled under the bill.
³⁷⁶
When the time expired, Shriver was eventually provided a summary report on the claims from the air force on April 20, 1967, detailing what had been settled up until that point. The summary, however, provided little satisfaction to Shriver or the committee that the job was getting done. It would take another year of petitions, letters back and forth and time in court before the claims were finally settled.

16

FINAL SETTLEMENTS

Laymen know and lawyers will admit that such delay effectively bullies injured parties and their families to settle too soon and for too little
.