Braughton v. United Air Lines, Inc.

• Decision Date: 01 June 1960
• Docket Number: No. 11742.,11742.
• Court: U.S. District Court — Western District of Missouri
• Parties: Ira L. BRAUGHTON, Individually and on behalf of the Estate of Ester L. Braughton, Deceased, Ira L. Braughton, Individually and as Father and Surviving Parent of Linda Kay Braughton, an infant, Deceased, and Ira L. Braughton, Individually and as Father and Surviving Parent of Connie June Braughton, an infant, Deceased, Plaintiff, v. UNITED AIR LINES, INC., and Trans World Airlines, Inc., Defendants.

189 F. Supp. 137

Ira L. BRAUGHTON, Individually and on behalf of the Estate of Ester L. Braughton, Deceased, Ira L. Braughton, Individually and as Father and Surviving Parent of Linda Kay Braughton, an infant, Deceased, and Ira L. Braughton, Individually and as Father and Surviving Parent of Connie June Braughton, an infant, Deceased, Plaintiff, v. UNITED AIR LINES, INC., and Trans World Airlines, Inc., Defendants.

No. 11742.

United States District Court W. D. Missouri, W. D.

June 1, 1960.

Robert A. Schroeder, Kansas City, Mo., for plaintiff.

Clay C. Rogers, Rogers, Field, Gentry & Jackson, Kansas City, Mo., for defendant United Air Lines, Inc.

Morrison, Hecker, Buck, Cozad & Rogers, Kansas City, Mo., for defendant TWA.

RIDGE, Chief Judge.

By leave of Court defendant Trans World Airlines, Inc., re-files its motion for summary judgment to plaintiff's second amended complaint, the same as filed to plaintiff's original complaint herein.

The plaintiff, Ira L. Braughton, brings this action individually and on behalf of the Estate of his Deceased Wife, Ester L. Braughton, and his two children, Linda Kay Braughton and Connie June Braughton, who were age nine and six, respectively, at the time of their death. The action is brought in three counts for the wrongful death of the above-named decedents, arising out of the "Grand Canyon Disaster" occurring on June 30, 1956. The disaster occurred in the vicinity of Flagstaff, Arizona; hence Arizona law and the Wrongful Death Statute of that State provide the basis for this action. Jurisdiction is here premised on diversity of citizenship and requisite jurisdictional amount. Trans World Airlines, Inc. (TWA) and United Air Lines, Inc. (UAL) are Delaware corporations. Plaintiff is a resident of the State of Kansas. Suit was originally filed in the United States District Court for the Southern District of New York on December 10, 1957, and subsequently transferred to this Court pursuant to Section 1404(a) of Title 28 U.S.C.A.

Defendant TWA has moved for summary judgment in its favor on the claims asserted against it. Tersely stated, the factual premise of such motion is that plaintiff's decedents accepted passage on the TWA plane involved in the above casualty, under certain gratuitous passes which contained specific "Conditions of Contract." TWA contends that such "Conditions of Contract" bar recovery of any damages from it as here claimed, even if it is assumed that plaintiff could establish by evidence some common law negligence on its part in causing the casualty in question. However, it should be noted that in paragraph "Thirtieth" of his second amended complaint plaintiff alleges that "the accident and the death of this plaintiff's decedents was occasioned wholly or in part by the gross and wanton negligence of the defendant Trans World Airlines, Inc., its agents, servants and employees, in the ownership, operation, control, dispatch and maintenance of its aircraft and airline facilities." Notwithstanding, the Court is of the opinion that TWA's motion supra is ripe for ruling, regardless of the nature of the issues raised thereby, in light of the particular facts before the Court adduced and established at pre-trial conference.

Fourteen (14) cases arising out of the Grand Canyon Disaster have been filed in this Court. All such cases are pending before this Judge. Numerous pre-trial conferences have been held in certain consolidated groups of such cases. At those pre-trial conferences evidence has been adduced, much by stipulation of the parties, concerning records, the contents of written documents, directives, and regulations of TWA, United Air Lines, Inc., and the Government, relating and applicable to the circumstances leading up to and surrounding that disaster. Although some of the cases mentioned merely name United Air Lines, Inc. as defendant therein; others join TWA as a party defendant. In light of that situation, many questions of law and fact have been developed as common to all such litigation. Counsel for all of the parties plaintiff and defendant therein were invited by the Court to attend and participate in all pre-trial conferences held relating to the above casualty, even though a particular conference was not scheduled in their particular case or in each of the above-mentioned cases, to the end that evidence adduced and stipulations made, of a general character, would be made known to, and be made available to, all counsel at subsequent pre-trial conferences and the actual trial of the case or cases in which they were retained, without the necessity of retracing established facts as to which there could be no dispute. Counsel for plaintiff, Braughton, and TWA have co-operated with the Court in the above endeavor, and have been present at all such conferences. As a consequence, the actual trial of the issues in the case at bar will be materially expedited and shortened as the result of the record made at the pre-trial conferences so held by this Court in respect to the Grand Canyon Disaster. A transcript of the proceedings had at all such conferences has at all times been on file in this Court, available to all interested counsel and parties. To the extent that said transcripts are pertinent to the issues in this case, and for the purpose of ruling TWA's instant motion for summary judgment herein, said transcripts are now made a part of the record in the instant action.

Suffice to say, that from the evidence adduced and facts established of record in the aforementioned transcripts as to which there can be no dispute between the parties, here, as well as from the orders entered by this Court in Consolidated Cases Nos. 11061, 11110, 11116, 11138 and 11388, which are incorporated herein by reference, it is transparent that, assuming all facts to be true which plaintiff here states he will rely on at the trial of this case to establish gross and wanton negligence on the part of TWA, it is the opinion of this Court that the same are wholly insufficient to require that issue to be submitted for determination by the trier of the facts herein, and that, if such procedure should hereafter follow, this Court would be required to direct a verdict in favor of TWA on that issue at the close of the plaintiff's case. That being so, TWA's motion for judgment in its favor on the claim plaintiff here makes against it, is now ripe for ruling.

It is undisputed in the record here that Ira L. Braughton, an employee of TWA, applied to TWA for passes for his wife and two daughters for a round-trip between Kansas City, Missouri, and Los Angeles, California, that they might take a personal vacation. Such pass privilege was exercised by Mr. Braughton and granted to his wife and children, subject to certain regulations contained in the TWA Management Policy and Procedure Manual. It is thereby established that passes provided by Trans World Airlines to its employees are granted without charge therefor. Said privileges are not obtained by TWA employees pursuant to any collective bargaining agreement, nor assured to such employees by any contract of employment. Said passes are not a part of the wages or consideration paid to TWA employees for their services. The wages and salaries of TWA employees are not affected in any way by the pass privileges. However, a service charge of $1.00 for each 500 miles, or fraction thereof, up to a maximum of $10.00, is placed on employees of TWA, to defray a portion of the expense TWA incurs in issuing passes to its employees and members of their families. The Company derives no profits from such service charge, but expects thereby to approximately break even on some of the expense items incident to issuance of passes, such as food served, Pass Bureau maintenance, insurance, forms, and the handling of them, which add to the Company's cost. Under such policy, children pay one-half the amount of the cash service charge. No tax is paid on the service charge which is collected at the ticket counter when the pass is delivered to the person to whom it is issued.

As above noted, passes were issued to plaintiff's wife and his two children, in accordance with the TWA Management Policy and Procedure Manual. When such passes were delivered to Mrs. Braughton, she paid a $6.00 service charge for the pass issued to her, and a $3.00 service charge on each of the children's passes. Mrs. Braughton then signed her pass and signed the children's names to each of their passes. Each of said passes contained the following stipulation:

"Conditions of Contract.

"* * * insofar as transportation furnished hereunder is not subject to the rules of said Convention, the holder agrees to assume all risk of accident and loss of every character, including personal injury, death, and loss or damage to property, and agrees that TWA shall not be liable for any such loss, damage, injury or death, whether caused by the negligence of TWA or its agents or otherwise."

It is admitted that the rules of "Warsaw Convention" do not apply to the case at bar because international travel is not involved herein.

Mrs. Braughton and her two daughters boarded TWA Flight 2, Lockheed Constellation aircraft, in Los Angeles, California, at 9:01 A.M., P.S.T., for their return home to Kansas City, Missouri, from the vacation trip. United Air Lines Flight 718, a DC-7 aircraft, took off from the same airport at 9:04 A.M. The said airplanes came into collision at approximately 11:30 A.M., M.S.T., in the vicinity of Flagstaff, Arizona. For the purpose of this motion, we here adopt plaintiff's statement of facts which he claims establish gross and wanton negligence on the part of Trans World Airlines, Inc., which are as follows:

"Trans World Airlines (TWA) flew its airplane in question at an altitude of 21,000 feet, and was at such altitude at the time of the collision, although it knew that the United Air Lines (UAL) plane in question was traveling pursuant to a flight plan of 21,000 feet

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