Lobel v. American Airlines

• Decision Date: 30 October 1951
• Docket Number: No. 14,Docket 22011.,14
• Citation: 192 F.2d 217
• Parties: LOBEL v. AMERICAN AIRLINES, Inc.
• Court: U.S. Court of Appeals — Second Circuit

192 F.2d 217 (1951)

LOBEL v. AMERICAN AIRLINES, Inc.

No. 14, Docket 22011.

United States Court of Appeals Second Circuit.

Argued October 5, 1951.

Decided October 30, 1951.

Jay Leo Rothschild, New York City (Frank R. Cohen, New York City, of counsel), for plaintiff-appellee.

Haight, Deming, Gardner, Poor & Havens, New York City (William J. Junkerman, S. V. Silverthorne, Jr., and Douglas B. Bowring, all of New York City, of counsel), for defendant-appellant.

Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Plaintiff sued for injuries he received when travelling as a paid passenger on one of defendant's planes when, during a flight, the plane crashed at Michigan City, Indiana, because the engines stopped functioning properly. The complaint alleged that defendant had exclusive control of the plane and that the accident was caused by defendant's negligence. The jury returned a $35,000 verdict in favor of plaintiff.

1. The judge charged the jury: "* * * Proof of the happening of the accident gives rise to a presumption that it occurred because of the negligence of the defendant or its employees in the manufacture or operation of the plane. A presumption is something that takes the place of evidence. In a case like this where the instrumentality which produced the accident is under the exclusive control of the defendant, there is a presumption of negligence but it might be overcome by the evidence of the defendant to show that in spite of the presumption of negligence, the accident occurred through no fault of the defendant or its employees." Had the accident occurred in New York, so that without any question the New York rule would have governed, this charge would have been patently in error. See Foltis v. City of New York, 287 N.Y. 108, 119, 122, 38 N.E.2d 455, 153 A.L.R. 1122; Griffin v. New York Central R. Co., 277 App.Div. 320, 323, 98 N.Y.S.2d 346, 349.¹ Although the accident occurred in Indiana, we think the rule the same because the New York courts, as we interpret their decisions, would regard res ipsa loquitur as a matter of procedure to be controlled by the legal rules of the forum. Those courts have called res ipsa loquitur a procedural rule of evidence, Judd v. Sams, 270 App.Div. 981, 62 N.Y.S.2d 678. Although they have not ruled on the precise question before us here, they have said, in cases involving burden of proof, that local law governs even though the accident occurred out-of-state. Wright v. Palmison, 237 App.Div. 22, 260 N.Y.S. 812; Clark v. Harnischfeger Sales Corp., 238 App.Div. 493, 264 N.Y.S. 873. If they follow local law in so vital a matter as burden of proof, it seems a fortiori true that they would not bow to foreign law where a mere rule of evidence was concerned. For the proposition that Indiana law governs, plaintiff cites only Fitzpatrick v. International R. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801. The New York court there was careful to base its holding that Ontario law governed the burden of proof on a unique Ontario statute, out of which the burden-of-proof rule had grown, and which gave new substantive rights to tort-claimants who had been disqualified at common law for contributory negligence. There is no such Indiana statute here.² See Palmer v. Hoffman, 318 U.S. 109, 118, 119, 63 S.Ct. 477, 87 L.Ed. 645. On this ground alone, there must be a new trial.

2. We do not agree with defendant that it was error to submit the case to the jury on a res ipsa loquitur charge. In his pleadings and in proving his own case, plaintiff met the requirements of the doctrine. The plane was in defendant's exclusive control.³ The accident was not of the sort which happens in the ordinary course of events without negligence on someone's part. The defendant urges, however, that, by the time the case went to the jury, plaintiff had attempted to prove, and had argued in his summation, that the accident was caused by several specific acts of negligence on defendant's part; defendant says that, under the doctrine of Goodheart v. American Airlines, Inc., 252 App. Div. 660, 663, 1 N.Y.S.2d 288, in such circumstances the New York courts would not allow the trial judge to charge res ipsa loquitur. The Goodheart case held that a plaintiff who pleaded and proved that a plane accident had been proximately caused by the pilot's negligence in deviating from his course should not have his case submitted to the jury on a res ipsa loquitur charge. That decision, even if it does represent New York law on this subject,⁴ is certainly not applicable here to the eviddence plaintiff put forward in his own case, which showed only vague sputterings of the engine several hours before the accident and the condition of the plane after the wreck. It was only through the cross-examination of defendant's witnesses that plaintiff elicited information specifically tying down separate acts of the defendant as contributing causes of the accident, i. e., fuel starvation from fragments of packing cartons left in valves, inadequate maintenance and inspection jobs, etc. Naturally, plaintiff took full advantage of this evidence in his argument to the jury. We can find no New York case which penalizes a res ipsa loquitur plaintiff who, on cross-examination, probes deeply into the defendant's behavior and thus discloses specific acts of negligence that may have caused the accident. We assume the New York courts would oppose any rule which encouraged plaintiffs to go easy on defendants in cross-examination and which destroyed this truthtesting technique in res ipsa loquitur cases, for the information elicited under cross-examination helps the jury to decide intelligently whether or not a permissible inference of negligence should be drawn.

3. Defendant urges error in the reception of a Civil Aeronautics Board investigator's report of his examination of the plane wreckage. Defendant relies on § 701(e) of the Civil Aeronautics Act, 49 U.S. C.A. § 581, which provides that: "no part of any report or reports of the former Air Safety Board or the Civil Aeronautics Board relating to any accident, or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports." Here, however, the report consisted wholly of the investigator's personal observations about the condition of the...