Pekelis v. Transcontinental & Western Air

• Decision Date: 15 February 1951
• Docket Number: Docket 21690.,No. 39,39
• Citation: 187 F.2d 122
• Parties: PEKELIS v. TRANSCONTINENTAL & WESTERN AIR, Inc.
• Court: U.S. Court of Appeals — Second Circuit

187 F.2d 122 (1951)

PEKELIS v. TRANSCONTINENTAL & WESTERN AIR, Inc.

No. 39, Docket 21690.

United States Court of Appeals Second Circuit.

Argued November 10, 1950.

Decided February 15, 1951.

Paul Weiss Wharton & Garrison, New York City, Samuel J. Silverman, Martin Kleinbard and Louis H. Pollak, all of New York City, of counsel, for plaintiff-appellant.

Haight, Deming, Gardner, Poor & Havens, New York City, William J. Junkerman and S. V. Silverthorne, Jr., New York City, of counsel, for defendant-respondent.

Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff Pekelis individually and as administratrix of the estate of her deceased husband, Alexander H. Pekelis, brought this action against the defendant Transcontinental & Western Air, Inc., to recover damages for the death of her husband, who was killed on December 28, 1946, in an accident near Shannon, Eire, while a passenger for hire on one of the defendant's TWA's Lockheed Constellation airplanes.

The flight which forms the subject of the action falls within the definition of "international transportation," as that term is defined in a treaty known as the "Warsaw Convention," to which both the United States and Eire are signatories. The Warsaw Convention provided that the carrier should not be liable if it proved that it and its agents had taken "all necessary measures to avoid the damage", or that it was impossible for it or them to take such measures. The treaty also provided that in the transportation of passengers the liability of the carrier, if any, for each passenger was limited to the sum of $8,300. It further provided, in Article 25, as follows:¹

"(1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.

"(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment."

There was a conflict in the evidence over the cause of the accident. The plaintiff contended that it was due to a faulty altimeter resulting from a mechanic's having intentionally omitted to perform a necessary safety test. The defendant contended that the circumstances under which the mechanic had acted were not such as to amount to "wilful misconduct." It also introduced evidence tending to show that the accident had happened through the misjudgment of the pilot in making the kind of turn he did to come into the runway of the airport. All these were plainly questions for the jury, and the plaintiff has not contended otherwise. She claims error by the trial judge (1) in excluding the European Regional Accident Investigation Board Report, the Maintenance Investigation Report, the International Division Accident Investigation Board Report, and the General Manager's Bulletin; (2) in excluding a letter written by Captain Sigman on January 9, 1947; (3) in refusing plaintiff's requests to charge as to definitions of "wilful misconduct or conduct equivalent thereto."

First, we shall deal with the refusals to grant the plaintiff's requests. The charge as to wilful misconduct was as follows:

"Now I shall try to define for you what is meant by `wilful misconduct' in this case. It does not mean that the defendant, or any of its employees, had a deliberate intention to kill Alexander H. Pekelis, or to wreck this airplane. Wilful misconduct is the intentional performance of an act with knowledge that the performance of that act will probably result in injury or damage, or it may be the intentional performance of an act in such a manner as to imply reckless disregard of the probable consequences of the performance of the act.

"Likewise, the intentional omission of some act, with knowledge that such omission will probably result in damage or injury, or the intentional omission of some act in a manner from which could be implied reckless disregard of the probable consequences of the omission, would also be wilful misconduct.

* * * * * *

"If you determine that there was no such wilful misconduct, then you must stop right there and, for the reasons which I have explained to you a little earlier, you must bring in a verdict for the plaintiff for $8300 only.

"If, however, you find that the defendant, or any of its employees, committed one or more acts of wilful misconduct, then you must go on to consider whether or not such wilful misconduct as you have found was the proximate or legal cause of the death of Mr. Pekelis. Now, to be the legal cause of this result, namely, Mr. Pekelis' death, the wilful misconduct must be a substantial factor in bringing about that result. Furthermore, there must be an actual and continuous sequence connecting the act of wilful misconduct with the death of Mr. Pekelis.

"I say that the wilful misconduct must be a substantial factor in bringing about the death. You will note I did not say it must be the sole substantial factor contributing to the death. In other words, if you find that wilful misconduct by the defendant or any of its employees was a substantial contributing factor to the death of Mr. Pekelis, that is sufficient to sustain the plaintiff's claim, even though you may find that there were also other substantial contributing factors. * * *"

The plaintiff limited her objections to the charge to the failure to embody in it the requests she had made. The principal request relied on was Number 8. The other requests were either applications of the rule of law to the facts, or were essentially a repetition of portions of the charge in different words. Number 8 read as follows: "A deliberate purpose on the part of the carrier or one of its employees not to discharge some duty necessary to safety may constitute wilful misconduct."

This request was properly denied because it failed to state that the employee must either have known that the test was necessary for safety, or his duty to make it must have been so obvious that in failing to make it his conduct would be reckless, rather than merely negligent.² We think these considerations were embodied in the charge which the judge gave.

We shall next refer to the exclusion of Captain Sigman's letter. After testifying for defendant as to the performance of the plane involved in the accident during flights shortly before the accident, he was questioned on cross-examination about a letter he had written, apparently by way of report to his superiors in TWA, which dealt with the behavior of the altimeter in a ship like the one involved in the accident. A copy of the letter did not refresh his recollection, whereupon the defendant's attorney called on the plaintiff to produce the original. After a colloquy with counsel at the bench, the court said: "Without inquiring further as to whether or not the letter is in court, pursuant to the subpoena or demand to produce, I now rule that even if the original letter were here I would not permit any further inquiry concerning it, because the matters which appear in the letter I deem to be irrelevant to the issues in this case."

The plaintiff contends that the letter was relevant, and that she, therefore, should have been permitted to lay a foundation for introducing it as past recollection recorded or as a business entry. Her theory at the trial was that the altimeter of the wrecked plane had been incorrectly hooked up so that when the wheels were lowered it registered an altitude higher than the true one. The pilot and co-pilot of the wrecked plane had testified that it read 500 feet at the time of the crash. The plaintiff also had introduced evidence of the condition of the plane after the accident to the effect that the hose lines, which controlled the air supply to the altimeter, had been switched. The line which the pilot used in making his landing was the one which normally should have been connected with an air supply from the nose, but when switched it introduced air from the housing of the landing gear. Trimble, an expert employed by the defendant — who was its Director of Operations for Europe, testified that on the basis of tests he had conducted with similar planes, a switch in the lines when the wheels were lowered to descend for a landing would introduce an error on the high side of from 125 to 250 feet, depending on the speed and position of the plane. In other words, the switch would make the altimeter read from 125 to 250 feet above the real altitude, thus misleading the pilot of the plane as to its distance above ground.

Captain Sigman's letter stated that in flying a sister ship at a speed of 145 mhp (which was roughly the speed of the plane that suffered the crash at Shannon Airport), he had noted the following, when the co-pilot's altimeter was connected with the alternate source: "The gear was then lowered and immediately his altimeter jumped to 400 above the original reading and also 400 above the altimeter reading on the pilot's side. At this time the selector valve on the pilot's side was moved from static position to alternate source and a 400 foot change was encountered." In other words, Sigman's letter indicated that when the lines were switched and the pilot was introducing air from the wheel well, rather than from the normal or "static" source in the nose, the reading would show 400 feet higher than the true altitude. If the letter had been admitted in evidence it would have tended more strongly than Trimble's testimony to confirm that of the pilot and co-pilot, had the jury believed that the hose line in the altimeter were switched. Accordingly, the letter would not have been objectionable as merely irrelevant, even if it repeated some things already covered...