Grey v. American Airlines
| Decision Date | 07 November 1955 |
| Docket Number | Docket 23601.,No. 73,73 |
| Citation | 227 F.2d 282 |
| Parties | Doris Sylvia GREY, infant, and Howard Martin Grey, infant, children of Harry M. Goldberg, deceased, and Sophie Goldberg, deceased, by Esther Weiner, their guardian ad litem, Plaintiffs-Appellants, v. AMERICAN AIRLINES, Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
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Manes, Sturim, Donovan & Laufer, New York City (Arthur M. Laufer and Samuel S. Sturim, New York City, on the brief), for plaintiffs-appellants.
Haight, Gardner, Poor & Havens, New York City (William J. Junkerman and James B. McQuillan, New York City, of counsel), for defendant-appellee.
Before HAND, MEDINA and LUMBARD, Circuit Judges.
The parents of the infant plaintiffs and twenty-six other persons met their deaths during the early hours of the morning of November 29, 1949, when defendant's Douglas DC-6 airplane, on an international flight from New York to Mexico City, crashed at Love Field, Dallas, Texas.
While plaintiffs contended that the Warsaw Convention was not applicable, because the passenger tickets issued to decedents did not make reference to the intermediate "agreed stopping places"1 of Washington, D. C., and Dallas, Texas, motions to strike the usual Warsaw Convention limitation of liability defenses, based upon this technical and wholly unsubstantial alleged omission, were denied before trial by Judge Noonan. We agree with Judge Noonan's reasoning and see no occasion to elaborate upon his carefully prepared opinion. Grey v. American Airlines, D.C.S.D.N. Y.1950, 95 F.Supp. 756.
At the trial the principal issue was whether or not plaintiffs had adduced evidence sufficient to support a finding that the disaster was due to "wilful misconduct" on the part of defendant's employees, or any of them. The jury found that it was; but the trial judge, after taking under advisement defendant's motion to set aside the verdicts and direct judgment in favor of plaintiffs for $16,600, or the limited amount of $8300 on account of the death of each decedent, reviewed the evidence in some detail and, in the order now appealed from, granted the motion.
In limine plaintiffs contend that the trial judge lacked power to entertain the motion, at least with reference to so much of plaintiffs' claim as arises out of the death of the mother, Sophie Goldberg, under Fed.Rules Civ.Proc. rule 50(b), 28 U.S.C.A. because no motion for a directed verdict was made by defendant "at the close of all the evidence" to the effect that the jury should find in plaintiffs' favor for the sum of $8300 "arising out of the death of Sophie Goldberg." We had supposed the winds of time had long since carried into oblivion such flimsy excuses for avoiding a consideration of the merits of a case. From the outset defendant urged that there could be no recovery in excess of $8300 for the death of either decedent; motions for directed verdicts with respect to the claims arising out of each of the two deaths were made at the close of plaintiffs' case; the contention was again made in extenso at the close of all the evidence. It was mere inadvertence that no reference was again made specifically to Sophie Goldberg. Accordingly, the trial judge had ample authority under Rule 50(b) to set aside or disregard the verdicts and dispose of the case with finality, subject to appellate review.
The plane left La Guardia Airport at 10:30 P. M.; took off from Washington, D. C., for Dallas at 12:54 A. M., and, when in the vicinity of Nashville, Tennessee, the outboard engine on the port wing, known as the #1 engine, commenced to backfire, as a result of which it was feathered and shut off. Without further incident Dallas was sighted and the plane was cleared to land on runway 36. We are concerned with what occurred between the time the plane crossed the boundary of the airport at an altitude of 200 feet, until it crashed on top of the hangar of the Dallas Aviation School on the edge of the airport opposite the direction tower. The crew, consisting of the Captain, the First Officer and the Flight Engineer, survived; and their testimony gives us a certain amount of data, together with some flat contradictions and a mass of conflicting possible inferences. Before giving a brief resume of the evidence, it will be well to set forth the applicable law.
The scheme of the Warsaw Convention is pretty plain on its face. Chapter III is the one which concerns us here. Article 17 imposes an absolute liability upon the carrier for all personal injuries, regardless of fault, "if the accident which caused the damage so sustained took place on board the aircraft." But this liability is excused by Article 20(1), if "the carrier proves" that it has "taken all necessary measures to avoid the damage or that it was impossible" for it to take them. As to this it is plain that the burden of proof is upon the carrier. And, in passing, it may be noted that in most if not all serious accidents, whether or not members of the crew survive, the difficulties in avoiding this presumptive liability would seem to be almost if not quite insurmountable.
Against this background we come to Article 25, which provides that the carrier shall not be entitled to avail itself "of the provisions of this convention which exclude or limit" its liability, if the damage is caused by its "wilful misconduct." The exclusion refers to Article 20(1), and the limitation to Article 22(1), which provides that "the liability of the carrier for each passenger shall be limited" to $8300. Upon whom is the burden of proving wilful misconduct?
The trial court here instructed the jury that the burden of proving wilful misconduct rested upon plaintiffs, and plaintiffs acquiesced in this, virtually conceding that it was not incumbent upon defendant to sustain the onus of proving a negative. As will shortly appear, the real cause of the crash still remains in doubt, and we feel that the interest of justice requires that we decide this question, even though the parties have apparently taken the answer for granted.
We hold that the trial judge ruled...
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