Richards v. United States
| Citation | 285 F.2d 521 |
| Decision Date | 25 November 1960 |
| Docket Number | No. 6378-6391.,6378-6391. |
| Parties | Suzanne Thomas RICHARDS, nee Wadlow, individually and for the use and benefit of Debra Sue Richards, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Harvey BARUCK, Administrator of the Estate of Robert I. Zelens, Deceased, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Clarine FAROUGH, individually, and for the use and benefit of John Allen Farough and Mary Kay Farough, minors, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Bernice L. MAUPIN, individually, and for the use and benefit of Marie Elleene Maupin, a minor, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Margaret J. HOWE, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Elizabeth R. CROSS, Executrix of the Estate of John Leland Cross, Jr., Deceased, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Therese B. AKIN, Executrix of the Estate of Morris W. Akin, Deceased, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Althea S. GATES, nee Bergtholdt, individually, and for the use and benefit of William Randall Gates, a minor, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Ruth Jean CARR-HARRIS, Administratrix of the Estate of Donald Dale Carr-Harris, Deceased, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Anna Mae O'NEAL, surviving widow of William E. O'Neal, Deceased, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Margaret Emma BARRON, individually, and for the use and benefit of Charles Donovan Barron and William Brooks Barron, minors, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Myra FIELDS, Administratrix of the Estate of Harold M. Fields, Deceased, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Virginia HOBSON, individually and for the use and benefit of John Hobson, David Hobson, Steven Hobson, Sammy Hobson, and Timothy Hobson, minors, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. Josephine M. SCHMYSER, Administratrix of the Estate of Herman F. Schmyser, Deceased, Appellant, v. UNITED STATES of America, and American Airlines, Inc., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Joseph A. Sharp, Tulsa, Okl. (Speiser, Quinn & O'Brien, Edward M. O'Brien, New York City, Rucker, Tabor, Best, Sharp & Shepherd, Truman B. Rucker and O. H. "Pat" O'Neal, Tulsa, Okl., were with him on the brief), for appellants.
Sherman L. Cohn, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., B. Hayden Crawford, U. S. Atty., Tulsa, Okl., and Morton Hollander, Atty., Dept. of Justice, Washington, D. C., were with him on the brief), for appellee United States.
Fred M. Mock, Oklahoma City, Okl. (W. B. Patterson, Dallas, Tex., and Melvin
F. Pierce, Oklahoma City, Okl., were with him on the brief), for appellee American Airlines, Inc.
Before MURRAH, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
A passenger airplane owned and operated by American Airlines on a regularly scheduled flight crashed in Missouri and everyone on board was killed. Invoking pertinent provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 1402, and the so-called Wrongful Death Statutes of Oklahoma, O.S.1951, Title 12, chapter 17, § 1051 et seq., survivors or legal representatives of passengers who lost their lives instituted in the United States Court for Northern Oklahoma fourteen separate actions against the United States for the recovery of damages. The basis of the claim pleaded in each case was negligence on the part of the United States, acting through the Civil Aeronautics personnel, in permitting American Airlines to employ and use unsafe practices and procedures at its overhaul depot at Tulsa, Oklahoma, in repairing, rebuilding, overhauling, and inspecting its aircraft, aircraft engines, and component parts. More specifically, it was pleaded that as the result of such negligence, an unfit and unsafe cylinder was placed in one of the engines of the airplane at the overhaul depot; that the cylinder failed; and that such failure caused the crash. The United States denied negligence; denied liability; pleaded that the accident was an unavoidable casualty; pleaded that the complainants were barred from recovery against the United States by reason of payments made to them by American Airlines and releases given to such company; and pleaded in the alternative that the amounts paid should be taken into account in mitigation of damages against the United States. And by third-party complaints, the United States asserted against American Airlines a right of indemnity in the event of recovery against the United States. American Airlines pleaded that the complaints failed to state a cause of action against the United States; pleaded that the deaths were an unavoidable casualty; pleaded that the actions were barred by the statutes of limitation of Missouri; and pleaded that certain of the complainants were barred from recovery against the United States by reason of releases given to American Airlines. The actions were consolidated for trial. In some of the cases, American Airlines made payment in each case of $15,000 to the complainants and releases and satisfactions of liability were executed. In the other cases, American Airlines during the course of a pre-trial conference tendered to the complainants in each case $15,000. Following the pre-trial conference, findings of fact and conclusions of law were made; and judgments were entered dismissing the actions.
The cases present a situation in which the alleged wrongful acts and conduct on the part of the United States occurred in Oklahoma and the deaths of the decedents occurred in Missouri. While it would be trite in ordinary circumstances to do so, it may be appropriate in this case to say that, in the absence of a controlling statute providing otherwise, the general rule is that where an act of omission or commission occurs at one place and resulting death, personal injury, or damage takes place at another, the situs of the actionable wrong is the place at which the death, personal injury or property damage takes place. Betts v. Southern Railway Co., 4 Cir., 71 F.2d 787; Hunter v. Derby Foods, 2 Cir., 110 F.2d 970; Lowry v. International Brotherhood, etc., 5 Cir., 220 F.2d 546; Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, certiorari denied Union Trust Co. v. U. S., 350 U.S. 911, 76 S.Ct. 192, 100 L.Ed. 799; Orr v. Sasseman, 5 Cir., 239 F.2d 182; Cameron v. Vandegriff, 53 Ark. 381, 13 S.W. 1092; Strogoff v. Motor Sales Co., 302 Mass. 345, 18 N.E.2d 1016; Dallas v. Whitney, 118 W.Va. 106, 188 S.E. 766; Conklin v. Canadian-Colonial Airways, 266 N.Y. 244, 194 N.E 692; Hughes Provision Co. v. La Mear Poultry & Egg Co., Mo.App., 242 S.W.2d 285; Gaston v. Wabash Railroad Co., Mo., 322 S.W.2d 865; Mann v. Policyholders' National Life Insurance Co., 78 N.D. 724, 51 N.W.2d 853. See also Restatement, Conflict of Laws § 377. And that rule has been applied in cases in which the act of omission or commission in respect to a passenger airplane occurred at one place while the resulting accident and death took place at another. Faron v. Eastern Airlines, 193 Misc. 395, 84 N.Y.S.2d 568; Riley v. Capital Airlines, Sup., 199 N.Y.S.2d 515. It is readily conceivable that solution of the problem could be more difficult in a case in which the initial act of omission or commission occurred at one place, personal injury at another, and resulting death later at a third. But no situation of that kind is presently presented.
If the Tort Claims Act were silent in respect to the matter and the general rule to which reference has been made had application with controlling effect, it seems clear that the situs of the actionable wrong involved in these cases would be in Missouri and the liability of the Government to respond in damages would be referable to the substantive law of that state. But the Tort Claims Act is not silent in that area. For reasons of its own choice, Congress took effective action to make a different rule applicable to the Government in such cases. Title 28, § 1346(b), United States Code, authorizes suits against the Government for death caused by the negligent or wrongful act of an employee of the Government while acting within the scope of his employment if a private person would be liable in accordance with the law of the place at which such act or omission occurred. And Title 28, section 2674, provides in presently pertinent part that the Government shall be liable in respect to the provisions of the title relating to tort claims in the same manner and to the same extent as a private person under like circumstances. When construed together, the effect of the two provisions in a case in which the act or omission occurs at one place and the resulting death at another is to subject the Government to liability according to the tests and standards of the substantive law of the state in which the act or omission occurred. Except when expressly provided otherwise in the Act itself, the effect of the two provisions in a case in which the act or omission occurs at one place and resulting death at another is to equate the liability of the Government with that of a private litigant under the substantive law of the state where the act or omission of the employee of the Government occurred. Eastern Air Lines v. Union Trust Co., supra; Voytas v. United States, 7 Cir., 256 F.2d 786. Concededly, a contrary view was expressed in United States v. Marshall, 9 Cir., 230 F.2d 183, and Hess v. United States, 9 Cir., 259 F.2d 285, vacated on grounds not germane here 361 U.S. 314, 80 S.Ct. 341, ...
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Richards v. United States, 59
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