Kuhn v. Civil Aeronautics Board, No. 10424.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtEDGERTON, PRETTYMAN and BAZELON, Circuit
Citation183 F.2d 839
PartiesKUHN v. CIVIL AERONAUTICS BOARD.
Docket NumberNo. 10424.
Decision Date19 June 1950

183 F.2d 839 (1950)

KUHN
v.
CIVIL AERONAUTICS BOARD.

No. 10424.

United States Court of Appeals District of Columbia Circuit.

Argued April 11, 1950.

Decided June 19, 1950.


183 F.2d 840

Mr. George A. Smith, Atlanta, Ga., of the Bar of the Supreme Court of Georgia, pro hac vice, by special leave of Court, with whom Messrs. E. Smythe Gambrell and W. Glen Harlan, Atlanta, Ga., were on the brief, for petitioner. Mr. Richard W. Galiher, Washington, D. C., also entered an appearance for petitioner.

Mr. William D. McFarlane, Special Assistant to the Attorney General, Department of Justice, with whom Assistant Attorney General Herbert A. Bergson, and Messrs. Emory T. Nunneley, Jr., General Counsel, Civil Aeronautics Board, and O. D. Ozment, Attorney, Civil Aeronautics Board, Washington, D. C., were on the brief, for respondent.

Before EDGERTON, PRETTYMAN and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

This is an appeal from an order of the Civil Aeronautics Board suspending petitioner's pilot license for forty days.1 The proceeding below arose out of a collision between petitoner's aircraft (an Eastern Airlines DC-4) and a Universal craft on December 19, 1946, near Aberdeen, Maryland. No serious injuries resulted to any of the persons on board, but there was extensive damage to both planes. Pursuant to 49 U.S. C.A. § 582, the Board ordered an investigation of the accident and public hearings were held before eight of the Board's safety

183 F.2d 841
experts. The evidence introduced at that hearing was subsequently made the stipulated record in the suspension proceeding. The Board's final order, which is before us now for review, was based upon (1) a finding that petitioner had been careless in failing to overcome the visual deficiencies of his craft and in failing to maintain a proper lookout; (2) a finding that petitioner had violated § 60.103(d) of the Civil Air Regulations, known as the proximity rule

In addition to challenging these two findings on the ground that they are not supported by substantial evidence, petitioner contends (1) the Board's finding that petitioner failed to maintain a proper lookout was invalid because he was given no notice that such issue was to be tried; (2) the Initial Decision of the Board was not made by the person who presided at the taking of evidence. We will first examine the procedural contentions.

(1) Petitioner would have us declare the Board's order void because it was in good part based on a finding allegedly not within the scope of the complaint, viz., failure to maintain a proper lookout.2 He claims that, because he was unaware that such an issue was in the case, he joined in a stipulation of record immediately after the complaint was issued. The inference is that if he had been apprised of such issue, he would not have joined in the stipulation and would have introduced evidence bearing on the subject.

Although petitioner insists that the allegations in the complaint do not encompass the lookout issue, we do not think it necessary to decide that question. The whole thrust of modern pleading is towards fulfillment of a notice-giving function and away from the rigid formalism of the common law.3 It is now generally accepted that

183 F.2d 842
there may be no subsequent challenge of issues which are actually litigated, if there has been actual notice and adequate opportunity to cure surprise.4 If it is clear that the parties understand exactly what the issues are when the proceedings are had, they cannot thereafter claim surprise or lack of due process because of alleged deficiencies in the language of particular pleadings. Actuality of notice there must be, but the actuality, not the technicality, must govern

There can be no doubt that this is a case where petitioner had actual notice that the lookout issue was involved. Thus, the manner and sufficiency of petitioner's lookout was thoroughly examined at the investigation hearing. The initial hearing, at which additional evidence could have been introduced, was waived by him; instead, he joined in a stipulation of record composed of the testimony at the investigation hearing. It was on the basis of this stipulated record that the Hearing Examiner recommended suspension of petitioner's license. Although the Initial Decision contained no specific finding on the lookout issue,5 it was discussed at some length and the observation was made that "Defendant's lack of precaution in maintaining an increased vigilance at that time appears inexcusable." Certainly, at that point, if not sooner, petitioner had notice. That he acted upon such notice is indicated by the fact that, in his appeal to the Board, he took specific exception to the Examiner's comments on the lookout issue. He steadfastly insisted that there was no proof that he "did not take the proper precaution or that he did not increase his vigilance immediately prior to the accident"; that the evidence demonstrated that he had provided a "vigilant and effective lookout." When the Board sustained the Examiner's decision, petitioner filed a petition for reconsideration, in which he again discussed the lookout problem. Nevertheless, the Board reaffirmed its prior decision. This time, however, it made a specific finding that the collision was due in whole or in part to petitioner's failure to maintain a proper lookout.

Since it is apparent that petitioner had actual notice, the only possible ground for reversal of the Board's decision would be a showing of lack of opportunity to introduce additional evidence after notice was brought home to him. In other words, there must be a showing that petitioner was prejudiced by whatever delay or informality there may have been in the notice received by him. He has not succeeded in...

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35 practice notes
  • Hamilton v. Accu-Tek, No. CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 3, 1999
    ...or lack of due process because of alleged deficiencies in the language of particular pleadings." Kuhn v. Civil Aeronautics Bd., 183 F.2d 839, 841 (D.C.Cir.1950). Plaintiffs' motion to amend the pleadings is C. Motion for Judgment as a Matter of Law At the close of plaintiffs' case, def......
  • Washington Gas Light Co. v. Baker, No. 10705
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 21, 1950
    ...he was denied any continuance necessary to the preparation of his case. See Kuhn v. Civil Aeronautics Board, 1950, 87 U.S. App.D.C. 130, 183 F.2d 839, 841 et 3 The Commission, for accounting purposes only, had already provided for amortization of the unrecovered investment in East and West ......
  • United States v. State of Tex., Civ. A. No. 5281.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • July 30, 1981
    ...the contentions of the petitioner therein closely resemble those asserted by defendants in this case. In Kuhn v. Civil Aeronautics Board, 183 F.2d 839 (D.C.Cir.1950), the administrative agency rendered a decision based on an issue not stated in the complaint or elsewhere in the record. The ......
  • Conair Corp. v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 15, 1983
    ..."clear that the parties understand exactly what the issues are when the proceedings are had." Kuhn v. Civil Aeronautics Board, 183 F.2d 839, 842 (D.C.Cir.1950). Further, the presence of evidence in the record to support a charge unstated in a complaint or any amendment thereto doe......
  • Request a trial to view additional results
34 cases
  • Hamilton v. Accu-Tek, No. CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 3, 1999
    ...or lack of due process because of alleged deficiencies in the language of particular pleadings." Kuhn v. Civil Aeronautics Bd., 183 F.2d 839, 841 (D.C.Cir.1950). Plaintiffs' motion to amend the pleadings is C. Motion for Judgment as a Matter of Law At the close of plaintiffs' case, def......
  • Washington Gas Light Co. v. Baker, No. 10705
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 21, 1950
    ...he was denied any continuance necessary to the preparation of his case. See Kuhn v. Civil Aeronautics Board, 1950, 87 U.S. App.D.C. 130, 183 F.2d 839, 841 et 3 The Commission, for accounting purposes only, had already provided for amortization of the unrecovered investment in East and West ......
  • United States v. State of Tex., Civ. A. No. 5281.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • July 30, 1981
    ...the contentions of the petitioner therein closely resemble those asserted by defendants in this case. In Kuhn v. Civil Aeronautics Board, 183 F.2d 839 (D.C.Cir.1950), the administrative agency rendered a decision based on an issue not stated in the complaint or elsewhere in the record. The ......
  • Conair Corp. v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 15, 1983
    ..."clear that the parties understand exactly what the issues are when the proceedings are had." Kuhn v. Civil Aeronautics Board, 183 F.2d 839, 842 (D.C.Cir.1950). Further, the presence of evidence in the record to support a charge unstated in a complaint or any amendment thereto doe......
  • Request a trial to view additional results
1 provisions
  • Revocation of Registration: Berkowitz, Roy, E., M.D.
    • United States
    • Federal Register July 24, 2009
    • July 24, 2009
    ...may be decided by the Board regardless of whether it has been specifically pleaded.''); Citizens State Bank, 751 F.2d at 213; Kuhn v. CAB, 183 F.2d 839, 842 (DC Cir. 1950)((``If it is clear that the parties understand exactly what the issues are when the proceedings are had, they cannot the......

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