Margosian v. US AIRLINES, Civ. No. 12899.

• Decision Date: 06 January 1955
• Docket Number: Civ. No. 12899.
• Parties: Lillian Hajian MARGOSIAN, Plaintiff, v. U. S. AIRLINES, Inc., Defendant.
• Court: U.S. District Court — Eastern District of New York

127 F. Supp. 464

Lillian Hajian MARGOSIAN, Plaintiff, v. U. S. AIRLINES, Inc., Defendant.

Civ. No. 12899.

United States District Court, E. D. New York.

January 6, 1955.

George Weisbarth, Jamaica, N. Y., for plaintiff.

Garvey & Conway, New York City, By: George J. Conway, and James R. Kelly, New York City, of counsel, for defendant.

BYERS, District Judge.

This is a plaintiff's motion for summary interlocutory judgment on the question of defendant's liability, leaving the amount of damages to be computed by a jury; for reasons briefly to be stated, the motion will be granted.

This is a companion case to Hahn v. U. S. Airlines, D.C., 127 F.Supp. 950, by Judge Galston who granted such a motion as to damage to the premises next door to those described in this complaint, resulting from the crash of the defendant's airplane in the vicinity of 88th Avenue and 169th Street, in the Borough of Queens, on April 5, 1952 at about 8:30 A.M.

No appeal was taken and since all relevant factors are common to the two causes, the impulse to consider that ruling as in effect establishing the law, if not of the case, certainly of this invasion of property, would be urgent in the extreme. That would be so even in the presence of permissible misgivings. Not only are there none, but the soundness of that ruling is so manifest in my opinion that I propose to follow it, pausing long enough only to demonstrate if possible, that the defendant's contentions have received careful consideration.

This complaint alleges two claims for relief: first, because of the defendant's negligence in the operation of its plane; and second that it was so "managed, operated and controlled by defendant * * * (as) to wrongfully enter or fall into and upon the said premises of plaintiff * * * and there and then cause said dwelling to become on fire, burn and be completely destroyed". (Complaint, paragraph 12.)

If plaintiff's motion as to the trespass is granted, trial of the negligence cause will be obviated.

It is true that the answer denies upon information and belief, the allegation above quoted as to the trespass, and if that were all, the case would have to go to trial on the issue thus made.

However, the affidavit in opposition to the motion is by an assistant treasurer of the defendant and urges that "the act of the airplane('s) crashing to the ground and causing damage to the plaintiff's property" was not a trespass since under the law of New York "trespass is an intentional harm; that the wrongdoer must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what the wrongdoer wilfully does and which the wrongdoer does so negligently as to amount to wilfullness". (Italics supplied.)

The foregoing reveals that:

(a) The denial of the trespass contained in the answer is of something which was not alleged in the complaint, i. e., as to wilfullness and intent; in light of what is said in the opposing affidavit, this cannot be construed as a negation of the trespass itself as pleaded by plaintiff.

(b) The defendant argues that trespass is not to be predicated of the falling of its airplane upon plaintiff's property, unless the act was wilful and intentional, and hence whether or not it was, presents a question of fact for the jury.

It is on that theory that the defendant seeks to induce the court to depart from the decision in the Hahn case, although that opinion in terms states that the very question was before the court, and thus was necessarily disposed of.

The toll in human life — not to mention the wreckage of the plane — in cases where airplanes have crashed, is the common sense answer to the requirement of proof under which the defendant argues that such a plaintiff must rest in order to demonstrate intent.

It is also true that the law has not been so retarded in its development as the defendant argues.

Thus the semblance of a disputed question of fact disappears for present purposes, and the question for decision is whether the plaintiff must prove wilfullness and intent or negligent operation, in order to recover for the trespass.

Since this is a diversity case, the law of New York governs:

The earliest case is that of Guille v. Swan, 19 Johns., N.Y., 381, recently cited by the Court of Appeals in Phillips v. Sun Oil Co., 1954, 307 N.Y. 328, 121 N.E.2d 249. The latter case involved leakage from a gasoline tank on defendant's property; a well on plaintiff's premises was polluted. The plaintiff sought to recover damages on the theory of trespass and was defeated below and in the Court of Appeals.

After remarking that the evidence did not disclose how the gasoline "found its subterranean way from defendant's to plaintiff's premises, and that there is nothing to show that defendant knew, or had been put on notice,...