Dennis v. Southeastern Aviation, Inc.

• Decision Date: 10 August 1959
• Docket Number: Civ. A. No. 1382.
• Citation: 176 F. Supp. 542
• Parties: Juanita Allison DENNIS v. SOUTHEASTERN AVIATION, INC., d/b/a Southeast Airlines.
• Court: U.S. District Court — Eastern District of Tennessee

176 F. Supp. 542

Juanita Allison DENNIS v. SOUTHEASTERN AVIATION, INC., d/b/a Southeast Airlines.

Civ. A. No. 1382.

United States District Court E. D. Tennessee, Northeastern Division.

August 10, 1959.

Cox, Epps, Powell & Weller, Johnson City, Tenn., for plaintiff.

Kramer, Dye, McNabb & Greenwood, Knoxville, Tenn., West & Fuller, Kingsport, Tenn., for defendant.

ROBERT L. TAYLOR, District Judge.

This is a suit for damages for wrongful death by the widow (a citizen and resident of Tennessee) of a passenger of defendant (a Tennessee corporation) who was killed in an accident involving one of its aircraft. It was instituted in the Law Court at Johnson City, Tennessee. The declaration contained four Counts:

(1) A common law count for negligence, (2) a statutory count for negligence for violation of the Tennessee statutes covering the operation of aircraft,¹ (3) a statutory count for negligence based upon the violation of rules and regulations promulgated under the Civil Aeronautics Act of 1938 (federal),² and (4) a count based upon the gross negligence of the defendant.

The defendant filed a petition for removal of the cause to the Federal Court on the ground that defendant was operating under the rules and regulations of the Civil Aeronautics Board and Federal Aviation Agency and was negligent in violating said rules and regulations.

The matter is now before the Court on plaintiff's petition to remand to the Law Court at Johnson City. Plaintiff asserts that the claim arises under the laws of the State of Tennessee and not under the laws of the United States.

In support of its motion to remand plaintiff cited the case of Boncek v. Pennsylvania R. Co., D.C.N.J., 105 F.Supp. 700 to the effect that where one of the charges of negligence embraced a failure to comply with federal regulations, but no recovery was sought under the terms of the federal statute or regulations, defendants were not entitled to removal without regard to the citizenship or residence of the parties. The Court made the point that the action for negligence had its genesis in the law of the state and that the allegation of negligence under the federal law simply tendered an issue of fact whether the train was operated without the brakes being in operative condition; and that the declaration set forth no right which would be supported if the Act be given one construction or effect and defeated if given another.

That seems to be precisely the situation in this case. No question appears as to the interpretation of the rules, the only question being one of fact whether they were violated. As Mr. Justice Cardoza said in Gully v. First Nat. Bank, 299 U.S. 109, 115, 57 S.Ct. 96, 99, 81 L.Ed. 70, "Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit. * * * `The federal nature of the right to be established is decisive — not the source of the authority to establish it.'" See cases collected in 12 A.L.R.2d 39.

The Court of Appeals for the tenth Circuit had the same problem before it in Andersen v. Bingham & G. Ry. Co., 169 F.2d 328, 330, 14 A.L.R.2d 987. The action was to recover damages for the death of a brakeman. The right of recovery was based on negligence for failure to comply with the Safety Appliance Act, 45 U.S.C.A. § 1. The case began in a State court of Utah, was removed to the Federal Court and a petition to remand was denied. The Court of Appeals reversed with directions to remand. The Court said:

"The allegations in the complaint charging as an element of negligence failure on the part of the defendant to comply with the exactions of the Safety Appliance Act merely tendered the issue of fact whether the train was operated without brakes being in operative condition as required by the Act. The complaint did not present any issue or controversy in respect to the validity, construction, or effect of the Act. It did not set forth any right or immunity which would be supported if the Act be given one construction or effect and defeated if given another. While the pertinent provisions of the Act lurked in the background as creating a duty the breach of which

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