Rhoades v. United States, 29-59

Citation216 F. Supp. 732
Decision Date20 November 1962
Docket NumberNo. 29-59,369-59.,29-59
CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
PartiesDonald G. RHOADES, Administrator of the Estate of Warren Donald Rhoades, Deceased, Plaintiff, v. UNITED STATES of America and United Air Lines, Inc., a Delaware Corporation, Defendants. Mary A. PARSONS, Special Administratrix of the Estate of Clayton Parsons, Deceased, Plaintiff, v. UNITED STATES of America and United Air Lines, Inc., a Delaware Corporation, Defendants.

Belcher, Henzie & Fargo, Los Angeles, Cal., for plaintiffs.

Donald A. Fareed, Asst. U. S. Atty., Los Angeles, Cal., for defendant United States.

Chase, Rotchford, Downen & Drukker, Los Angeles, Cal., for defendant United Air Lines.

HALL, Chief Judge.

The two above-entitled cases are among those consolidated for trial on the question of liability with Wiener v. United Air Lines and United States of America, D.C., 216 F.Supp. 701, No. 469-58.

In the Wiener case, the United States and the United Air Lines filed Cross-claims against each other. In the Pre-trial Order in the Wiener case, No. 469-58-PH, it was stipulated, with the approval of the Court, that the Cross-claims filed by each of the parties in that case and their respective answers thereto should be deemed to be the respective Cross-claims and answers in all of the other cases, including the above two.

The matter is before the Court on the motion of the United States to dismiss the Cross-claim of United Air Lines against the United States for lack of jurisdiction.

In the Parsons case, No. 369-59-PH, the jury rendered its verdict against United Air Lines in the amount of $142,232.27. In the Rhoades case, counsel for plaintiffs and counsel for defendant United Air Lines entered into a stipulation fixing the amount of damages against United Air Lines to be in the sum of $45,000.00, preserving, however, the right of United Air Lines to assert whatever lawful claim it may have for contribution or indemnity against the United States.

The position of the United States is that under the terms and provisions of 5 U.S.C.A. § 757(b) any right to sue for indemnity or contribution as a result of the death or personal injury of an employee of the United States is withdrawn under the Federal Employees' Compensation Act which modifies the Federal Tort Claims Act to that extent.

There is no question but that both decedents, Warren Donald Rhoades and Clayton Parsons, were employees of the United States, and their respective heirs are receiving benefits under the Federal Employees' Compensation Act of October 14, 1949, as amended. 5 U.S.C. § 757(b).

Cross-claimant United Air Lines argues that under the ejusdem generis rule, the language of 5 U.S.C. § 757(b), by specifying "legal representatives, spouses, dependents and next of kin" limits the right to sue the United States to only such class of persons, and was not intended to preclude indemnity or contribution in such a case as the present case where the United Air Lines, a third party, and obviously not a "legal representative, spouse, dependent or next of kin" must pay the judgment to the plaintiffs whose decedents were employees of the United States. The argument loses its validity not only in the face of the authority of the cases hereinafter mentioned, but also by the wording of the statute. After specifying "spouses" etc., the statute states: "and anyone otherwise entitled to recover damages from the United States or such instrumentality * * * under any Federal Tort Liability Statute." The word "otherwise" destroys the ejusdem generis argument, as it means anyone who might be entitled to make a claim against the United States, which arises from a relationship, dis-similar to the specified classes. Such is the situation of United Air Lines...

To continue reading

Request your trial
3 cases
  • Newport Air Park, Inc. v. United States
    • United States
    • U.S. District Court — District of Rhode Island
    • November 29, 1968
    ...has been accepted by some courts. E. g., Christie v. Powder Power Tool Corp., 124 F.Supp. 693 (D.D.C. 1954); Rhoades v. United States, 216 F. Supp. 732 (S.D.Cal.1962). Nevertheless, the emphasized statutory language is susceptible of a differing construction. By such a construction, commonl......
  • United Air Lines, Inc. v. Wiener
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 16, 1964
    ...indemnity from the government in all 24 cases. See Wiener v. United Air Lines, 216 F.Supp. 701 (S.D.Cal.1962); Rhoades v. United States, 216 F.Supp. 732 (S.D.Cal. 1962). This group of 24 cases is referred to by the parties as the "Wiener cases", a designation adopted The remaining seven cas......
  • United States v. United Air Lines, Inc.
    • United States
    • U.S. District Court — District of Washington
    • December 7, 1962

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT