D'Aleman v. Pan American World Airways
| Decision Date | 02 October 1958 |
| Docket Number | No. 355,Docket 25008.,355 |
| Citation | 259 F.2d 493 |
| Parties | Lucia De J. D'ALEMAN, Administratrix, etc., Plaintiff-Appellant, v. PAN AMERICAN WORLD AIRWAYS, Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Louis R. Harolds, New York City (Standard, Weisberg, Harolds & Malament, New York City, on the brief), for plaintiff-appellant.
William J. Junkerman, New York City (James B. McQuillan, Haight, Gardner, Poor & Havens, New York City, on the brief), for defendant-appellee.
Before WATERMAN and MOORE, Circuit Judges, and GALSTON, District Judge.
Plaintiff, as administratrix of the estate of her deceased husband, Aurelio D'Aleman, has asserted two claims for wrongful death against defendant, Pan American World Airways, Inc. The first cause of action alleged, in substance, that death "was occasioned by the negligence of the defendant * * * and the unairworthiness of the aircraft involved." The second cause of action was based upon an alleged failure "to provide adequate medical care and attention to the deceased" .
The events giving rise to the first cause of action occurred over the high seas and to the second cause of action in the State of Virginia, although death ultimately took place in the State of New York. The trial court heard the first cause of action under the Federal Death on the High Seas Act, 46 U.S.C.A. §§ 761-767, 41 Stat. 537, in admiralty, without a jury; the second cause of action was submitted to the jury under the Virginia Death Statutes. The trial court decided the admiralty cause of action on the merits in favor of defendant; the jury also returned a verdict for the defendant on the action alleging failure to provide adequate treatment.
Plaintiff bases her appeal on two principal grounds: (1) that the court erred in trying the first cause of action in admiralty and in not sending it to the jury; and (2) that the court erred in the second cause of action in excluding certain medical testimony and records.
The facts material to a decision are not in dispute. On April 13, 1951 the deceased boarded defendant's plane in Puerto Rico to come to New York. The plane was detained for an hour or two for engine repairs. Some three to four hours out and while over the ocean trouble developed with the oil pressure in the number one engine. The captain decided to "feather" that engine and to fly on the three remaining engines. He requested a clearance to land at Bermuda, about 370 miles away, but because of adverse weather conditions there, the plane proceeded to Norfolk, Virginia where it made a normal landing. The passengers were advised while en route of the situation and the reasons for the change of course. There was no evidence whatsoever as to any physical injury or trauma either in the plane or upon any landing.
Plaintiff's claim (first cause of action) is that the deceased became so terrified by the feathering of the engine and the announcement of the unscheduled landing at Norfolk that he went into a state of shock which, four days later, in New York, resulted in his death. After hearing all the evidence the trial court said "I find no fault of the defendant in the maintenance of the plane, and I find no perceptible abnormal movement of the plane, and I find no illness of the deceased before landing in Norfolk, Virginia, and that claim is therefore dismissed" (117a, 118a). These conclusions are amply supported by the credible evidence; in fact, no other conclusions would have been warranted. The control of a ship or an airplane must, of necessity, be entrusted to the captain. Whether an engine should be feathered, whether one course as against another should be followed, whether the plane should fly over or under a storm, are all decisions within his judgment and discretion. Every traveler by land, sea or air must be presumed to know that unexpected events may create operational problems requiring the exercise of judgment by those in charge. Not infrequently if engine trouble develops planes return to the point of departure or seek other landing fields as a measure of precaution and safety. Such experiences may not be pleasant to the passengers and may well cause some apprehension. Thus when a plane encounters air turbulence it would only be a mental dullard who would not undergo sensations of nervousness while the plane was being tossed about. However, carriers cannot be responsible for the individual characteristics of each passenger. To hold otherwise would be to impose a duty of a complete medical and psychiatric examination of all passengers and then to adopt a rule of absolute liability in the event that any undiscovered condition was aggravated by some incident of the flight.
The sole appellate point presented as to the first cause of action is whether the trial court should have heard this cause of action in admiralty.
The Federal Death on the High Seas Act was enacted to create a right of action whenever death was "caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, * * *" and authorized the personal representative of the decedent to "maintain a suit for damages in the district courts of the United States, in admiralty, * * *" (section 761).
The purpose of the Act was to create a uniform cause of action where none existed before and which arose beyond the territorial limits of the United States or any State thereof. When the Act was passed (March 30, 1920) the only feasible way to be carried beyond the jurisdiction of any law applicable to wrongful death was by ship. However, with the development of the transoceanic airship the same extraterritorial situation was made possible in the air. The Act was designed to create a cause of action in an area not theretofore under the jurisdiction of any court. The means of transportation into the area is of no importance. The statutory expression "on the high seas" should be capable of expansion to, under, or, over, as scientific advances change the methods of travel. The law would indeed be static if a passenger on a ship were protected by the Act and another passenger in the identical location three thousand feet above in a plane were not. Nor should the plane have to crash into the sea to bring the death within the Act any more than a ship should have to sink as a prerequisite.
The reasons for holding that the Act should apply to air travel are well stated in Choy v. Pan American Airways Co., 1941 A.M.C. 483, at pages 484-485 (S.D. N.Y., Clancy, J.).
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