Tansey v. Transcontinental & Western Air

• Decision Date: 03 February 1950
• Docket Number: Civ. A. No. 5151-47.
• Citation: 97 F. Supp. 458
• Parties: TANSEY v. TRANSCONTINENTAL & WESTERN AIR, Inc.
• Court: U.S. District Court — District of Columbia

97 F. Supp. 458

TANSEY v. TRANSCONTINENTAL & WESTERN AIR, Inc.

Civ. A. No. 5151-47.

United States District Court District of Columbia.

October 31, 1949.

On Motion for Rehearing February 3, 1950.

Paul M. Rhodes, Washington, D. C., for the plaintiff.

Bernard J. Gallagher and J. Roy Thompson, Jr., Washington, D. C., for the defandant.

LAWS, Chief Judge.

Plaintiff's motion to strike defendant's pleading purporting to be an offer of judgment or, in the alternative, to suspend application of Rule 68 of the Federal Rules of Civil Procedure, 28 U.S.C.A. insofar as future costs is concerned, will be granted. Under Rule 68 the pleading filed as an offer of judgment is not a part of the record and having been filed as such in this case, it must be stricken. Nabors v. Texas Co., D.C.W.D.La., 32 F.Supp. 91. As to future costs, defendant's offer of judgment does not specify a definite sum to be entered as judgment which plaintiff can either accept or reject and therefore the offer will not prevent consideration by the court of plaintiff's costs hereinafter incurred.

Defendant's motion for leave to amend answer to the complaint insofar as the addition of a sixth defense involving the applicability of Missouri law will be granted. Defendant's motion for leave to amend its answer by the addition of common law defenses will be granted, subject, however, to the right of plaintiff to apply to the Court for the assessment against defendant of costs claimed to be unnecessarily sustained by reason of the amendment adding common law defenses.

On defendant's first motion for summary judgment, it appeared that in answer to defendant's allegation that the Workmen's Compensation laws of Virginia or the District of Columbia controlled, Code Va.1950, § 65-1 et seq., D.C.Code 1940, §§ 36-501, 36-502, plaintiff filed affidavits indicating the Workmen's Compensation laws of Missouri would control. R.S.1949, § 287.010 et seq. This motion for summary judgment was denied. On the present motion for summary judgment, without abandoning its claim that the Virginia Compensation laws control, defendant offered to have judgment rendered against it on the basis of the provision of the Missouri Compensation Law, and accordingly claims summary judgment should be granted in its favor.

It is not unequivocally alleged by the pleadings that the Workmen's Compensation laws of Missouri control, and even though the defendant is willing to assume Missouri law applies, there remains a doubt whether plaintiff is covered by the provisions of such law. Moreover, the affidavit of plaintiff, relied on by defendant to give it the right to summary judgment, does not indicate with certainty that plaintiff agreed to be bound by the Missouri Workmen's Compensation Law. There is indication that he was given to understand by certain representations of defendant that such law would control; but whether this understanding reached the point of a binding contract is not clear. In view of this uncertain state of the record, defendant's motion for summary judgment based on the provisions of the Missouri Workmen's Compensation Law must be overruled.

Plaintiff, having shown good cause for his motion for production of documents, and none of his requests appearing to be privileged, the motion will be granted. The law grants privilege against examination of reports of the Civil Aeronautics Board, but it does not appear to extend to granting a similar privilege against disclosure of investigations and reports made by an airplane operating organization. I do not find that the law requires the latter investigations or reports to be made or to be furnished the Civil Aeronautics Board and therefore the question of privilege against disclosure under such circumstances does not appear to arise.

On Defendant's Motion for Rehearing

This Court previously granted plaintiff's motion for inspection and copying, pursuant to Rule 34 of the Federal Rules of Civil Procedure, of certain documents and papers in the possession of defendant. Included in the order were reports made by employees of defendant as to the airplane accident in which plaintiff was injured and for which this suit was brought. In passing upon plaintiff's motion, it was stated that there appeared to be no requirement of law that defendant should make an investigation or report to the Civil Aeronautics Board with regard to the accident. A rehearing was granted because of defendant's contention that such report is required by law. At the rehearing, defendant also reargued its objection that plaintiff has not shown good cause for the production of the documents and papers.

Section 582 of the Civil Aeronautics Act of 1938, 49 U.S.C.A., as amended, provides, in part, that "it shall be the duty of the Board to—Make rules and regulations, governing notification and report of accidents involving aircraft." Pursuant to this provision of law, the Board passed a regulation which required a written report to be made by the carrier to the Board of every accident involving a certified aircraft of the United States. The form provided requires a "detailed account of flight and accident, including nature of difficulty, speed, altitude, maneuvers, etc." By affidavit...