335 F.2d 379 (9th Cir. 1964), 18510-18533, United Air Lines, Inc. v. Wiener

Docket Nº:18510-18533, 18866-18872.
Citation:335 F.2d 379
Party Name:UNITED AIR LINES, INC., Appellant, v. Janice WIENER et al. and Catherine B. Nollenberger, et al. (excluding Faith C. Paris et al.), Appellees. UNITED STATES of America, Appellant, v. Janice WIENER et al., Appellees.
Case Date:June 24, 1964
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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335 F.2d 379 (9th Cir. 1964)



Janice WIENER et al. and Catherine B. Nollenberger, et al. (excluding Faith C. Paris et al.), Appellees.

UNITED STATES of America, Appellant,


Janice WIENER et al., Appellees.

Nos. 18510-18533, 18866-18872.

United States Court of Appeals, Ninth Circuit.

June 24, 1964

Rehearing Denied Sept. 11, 1964.

Certiorari Dismissed Dec. 16, 1964. See 85 S.Ct. 452.

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Hugh B. Rotchford, James J. McCarthy, Chase, Rotchford, Downen & Drukker, Pierce Works, William W. Vaughn, O'Melveny & Myers, Los Angeles, Cal., for appellant-cross appellee United Air Lines, Inc.

Francis C. Whelan, U.S. Atty., Donald A. Fareed, Asst. U.S. Atty., Chief of Civil Section, Donald J. Merriman, Asst. U.S. Atty., Los Angeles, Cal., for appellee-cross appellant United States of America.

Frank Belcher, Belcher, Henzie & Fargo, Ben. Margolis, Margolis & McTernan, Los Angeles, Cal., for appellees.

Before POPE, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

These appeals are from judgments in thirty-one cases arising out of a mid-air collision between a DC-7 propeller driven commercial airliner owned and operated by United Air Lines (hereinafter 'United') and an F-100F United States Air Force jet fighter. The collision occurred on April 21, 1958, near Las Vegas, Nevada. The DC-7 was carrying 42 passengers and a crew of 5; the jet was carrying two Air Force pilots. There were no survivors.

All of the actions were brought under the Nevada Wrongful Death Statutes: Nev.Rev.Stats. §§ 12.090, 41.080, 41.090. In all 31 cases, the plaintiff's decedents were passengers for hire on United's DC-7, including 7 civilian employees of the government and two members of the Armed Forces, all of whom were traveling in the line of duty as such. We will hereinafter refer to 22 nongovernment employee cases and 9 government employee cases. United was a defendant in all 31 actions, and the United States of America (hereinafter 'the government') was a co-defendant in the 22 nongovernment employee cases. In 5 of the 9 government employee cases, the government, as co-plaintiff, sued United as a statutory subrogee in enforcement of its lien rights under the Federal Employees' Compensation Act: 5 U.S.C. §§ 751 et seq., 776. In the 22 nongovernment employee cases, the government sought contribution from United; United sought indemnity from the government in all 31 cases.

Twenty-four of the suits (the 22 nongovernment employee cases and two of the government employee cases) were filed in the Southern District of California where they were tried together on a consolidated basis. 1 All of these were tried to a jury as to United, and the 22 nongovernment employee cases in this group were tried as to the government to the same jury on an advisory basis, followed by court findings of fact and conclusions of law. The claims between United and the government on the issues of contribution and indemnity were tried to the court. Judgments were entered in favor of the plaintiffs in these 24 cases; United and the government were granted contribution each against the other in the 22 nongovernment employee cases; United was denied 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 herein.

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The remaining seven cases, all involving government employees and including the five cases in which the government sued as a co-plaintiff, were pending against United in the District of Nevada at the close of trial in the Wiener cases. These cases are referred to as the 'Nevada cases' and were presided over by the same district judge who presided over the Wiener cases. The District Court for the District of Nevada granted motions for summary judgments in favor of the plaintiffs and against United on the issue of liability in these cases on the ground that United was collaterally estopped to deny liability to the plaintiffs therein under the doctrine of res judicata by virtue of the verdicts and judgments in the Wiener cases. United States v. United Air Lines, 216 F.Supp. 709, 729 (D.Nev.1962). Thereafter, upon stipulation of the parties as to forum non conveniens, the cases were transferred to the District Court for the Southern District of California for trial on the issue of damages only. After having been transferred, the Nevada cases were tried together to a jury other than that previously empaneled in the Wiener cases on the issue of damages in each case. In two of these cases the court increased the amount of damages returned by the jury in the respective verdicts. See Nollenberger v. United Air Lines, 216 F.Supp. 734 (S.D.Cal.1962.) The District Court dismissed United's claims against the government for indemnity in all the Nevada cases.

United and the government each appeals from the judgments rendered against them and in favor of the passengers' representatives (hereinafter appellees). United appeals from the denial of indemnity over against the government in all 31 cases, from the awards of contribution to the government, and from the lower court's action increasing the amount of damages returned by the jury in two of the Nevada cases. The government appeals from the district court's action in limiting the amount of contribution by United in three cases. None of the parties specifies error regarding the admission or exclusion of evidence.

Before discussion in detail the issues raised in these appeals, we shall summarize those findings of fact made by the district court which are not in dispute in an effort to describe the circumstances of the collision.

United's Flight 736 was a regularly scheduled flight which departed Los Angeles International Airport at 7:37 a.m. on April 21, 1958. Prior to takeoff, United filed with the Civil Aeronautics Administration (CAA) Air Route Traffic Control Center at Los Angeles an Instrument Flight Rules (IFR) flight plan which proposed the use, inter alia, of Victor 8 airway to Denver, Colorado. The flight plan also proposed a cruising altitude of 21,000 feet mean sea level, a true air speed of 305 knots, and a departure time of 7:35. Victor 8 airway was a major transcontinental airway established by the CAA in 1952 and was used extensively by air traffic including large passenger airliners such as United's DC-7. Victor 8 airway includes the navigable airspace up to an elevation of 27,000 feet mean sea level above the earth's surface within five statute miles of each side of a prescribed center line. It extends from Long Beach, California, to Washington, D.C., and passes over Las Vegas, Nevada. It was common knowledge that Victor 8 was a regular route for two-way traffic at the time of the accident. The Air Route Traffic Control Center of the CAA at Los Angeles issued an IFR air traffic clearance to Flight 736 to proceed to Denver in accordance with the proposed flight plan, which clearance was acknowledged by the flight. A copy of the flight plan was immediately forwarded by teletype from the Los Angeles Center to the Salt Lake City, Utah, Center of the CAA. At about 8:14, the CAA Centers at Los Angeles and Salt Lake City received a report from Aeronautical Radio, Inc., which serves under contract to United as a radio communicating facility, that Flight 736 had estimated its time of arrival

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over McCarran Field at Las Vegas, Nevada, at 8:31.

At approximately 7:45 that morning an Air Force F-100F Super Sabre Jet fighter took off from Nellis Air Force Base near Las Vegas, Nevada, on a training flight carrying an instructor pilot in the front seat and a student pilot in the rear seat. Prior to takeoff the pilots of the F-100F received an authorization from their Squadron Operations Officer for a local flight under Visual Flight Rules (VFR) conditions. Nellis Air Force Base was located at the northeasterly edge of Las Vegas within the lateral confines of Victor 8 airway.

During the training flight of the F-100F the student pilot was to receive training in primary instrument maneuvers in an area away from Victor 8 designated for that purpose. On his way back to Nellis, the student was to engage in a practice teardrop instrument penetration involving a descent and approach to Nellis under simulated instrument flying conditions. At all times during the training flight, the student was under a hood and was unable to see outside of the cockpit in which he was seated. It was to be his first such instrument penetration or let-down procedure in a F-100F type aircraft, although he had had previous experience in such procedure in a T-33 jet. The instructor pilot, who had never previously been on an instrument mission with this student, occupied the front seat and had two-way microphone communication available at all times with the student. It was the instructor's duty to instruct the pilot in the rear seat, to monitor each step of his performance, to monitor the engine, navigation and other instruments of the plane, and to maintain a visual lookout for other aircraft. The F-100F had dual pilot controls and the instructor could take over the operation and control of the jet at any time.

The practice teardrop instrument penetration was to be executed in conformity with a procedure known as the KRAM procedure. This KRAM procedure was designed by the Commanding General of Nellis Air Force Base and his subordinates (hereinafter 'Nellis Command') and used as a 'fix' for initiating and...

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