Montellier v. United States

• Citation: 202 F. Supp. 384
• Decision Date: 05 February 1962
• Docket Number: Civ. No. 19699.
• Parties: Maureen A. MONTELLIER, as Administratrix of the Goods, Chattels and Credits of Norman J. Montellier, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

202 F. Supp. 384

Maureen A. MONTELLIER, as Administratrix of the Goods, Chattels and Credits of Norman J. Montellier, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 19699.

United States District Court E. D. New York.

February 5, 1962.

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Duer & Taylor, John S. Chapman, Arthur McInerney, of counsel, for plaintiff.

Joseph P. Hoey, U. S. Atty., Eastern District of New York, James M. Fitzsimons, Asst. U. S. Atty., of counsel, for defendant.

ZAVATT, District Judge.

At 12:30 on the morning of June 27th, 1958 a United States Air Force jet tanker airplane, designated as a KC-135A, (hereinafter referred to as KC-135,) took off from Westover Air Force Base, Massachusetts on what was hoped to be a record-breaking, round-trip, non-stop, non-refueling flight. The gross weight of the plane as its brakes were released for the beginning of the takeoff ground run was approximately 290,500 pounds including approximately 184,500 pounds of fuel. Although it became airborne, it struck treetops (16 ft. above runway level) approximately 4,050 feet beyond and in a line in continuation of the takeoff end of the runway; struck another tree 700 feet beyond; severed six high-tension wires (below runway level) each approximately ¾" in diameter and burst into a ball of fire; the left wing tip struck the ground at the airport side of the Massachusetts Turnpike; the plane cartwheeled across the Turnpike and came to rest, a complete wreck, on the opposite side. All on board died instantly.

Fifteen persons were aboard the ill-fated plane — seven crew members, two National Aeronautics Administration representatives and six representatives of news gathering agencies, i. e., Associated Press, News World, Time Magazine, Boston Herald and United Press International. Norman J. Montellier, plaintiff's intestate, was aboard as representative of United Press International. He was survived by his widow, Maureen A. Montellier, and two infant children — Kathleen, born April 8, 1949, and Peter, born August 21, 1950 — all of whom were residents of this district and citizens of New York State on June 27th, 1958 and at all times thereafter to and including the time when the present action was instituted.

The plaintiff has brought this action, in her own behalf and in behalf of said children, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674 and the Massachusetts Death Act, Ann.Laws of Mass., Ch. 229, § 2C, in which she seeks to recover damages in the sum of $350,000. The Government denies liability and has raised the following threshold questions of law:

(1) That the plaintiff, not having been appointed administratrix by a Massachusetts court, but rather, by the Surrogate's Court of Queens County, New York, is not a proper party plaintiff; that she lacks legal capacity to bring this action founded upon the Massachusetts Death Act;

(2) That the decision that the flight be made and the execution thereof were made by a federal agency or an employee of the Government in pursuance of a discretionary function and that, therefore, the plaintiff may not recover under the Federal Tort Claims Act; that everything relating to this flight comes within the exceptions to the Act specified in 28 U.S.C. § 2680(a);

(3) That Norman Montellier assumed all risks of the flight by boarding the plane and by executing and delivering a release running to the Government; that these acts constitute a complete bar to this action, even assuming that the plaintiff has the legal capacity to sue and that the Government would otherwise be liable.

(4) The Government contends, further, that Norman Montellier was a mere licensee, not an invitee and, therefore, that the plaintiff may recover only upon proof of gross or wanton negligence.

(5) At the trial, the Government contended that, even if the plaintiff were entitled to recover, damages must be limited to $20,000 by the terms of the Massachusetts Death Act. In its post-trial memorandum, the Government appears to have abandoned this contention.

Plaintiff Has Legal Capacity To Sue

The complaint was filed April 21, 1959; issue was joined July 26, 1959. The complaint alleged that this court has jurisdiction of the subject matter (paragraph "First";) that the plaintiff is the duly appointed administratrix of the goods, chattels and credits of Norman J. Montellier, deceased (paragraph "Second";) that the plaintiff has the right to bring this action (paragraph "Sixth".) The answer merely denied "knowledge or information sufficient to form a belief" as to plaintiff's allegations in paragraph "Second" of the complaint. As to her allegations that the court has jurisdiction and that she has the right to bring this action the defendant pleaded that "The allegations set forth in paragraphs of the complaint designated `First' and `Sixth' set forth a question of law and is submitted to the court for determination." Following a pre-trial conference on December 7, 1960, a pre-trial order (approved in writing as to form and substance by the attorneys for all parties) was made. Among other things, it contains the stipulation of the attorneys that "Plaintiff is the duly qualified administratrix of the goods, chattels and credits of Norman J. Montellier, deceased, and is authorized to proceed in the capacity in which she sues." This stipulation was read into the record, without objection, on the opening day of the trial. The matter of jurisdiction or capacity to sue in this action was never again raised during the eighteen full days of trial between May 1st and June 19th, 1961. Not until September 15, 1961, when the defendant filed its post-trial memorandum, were these questions raised.

To countenance such tactics would make a mockery of Rule 16 of the Rules of Civil Procedure, 28 U.S.C., and federal pre-trial practice, the purpose of which is to define the claims and defenses of the parties in order to eliminate unnecessary proof and issues, lessen the opportunities for surprise and thereby expedite the trial. Rosden v. Leuthold, 107 U.S.App.D.C. 89, 274 F.2d 747 (1960). Further, the defendant ignores Rule 9 of the Rules of Civil Procedure. A plaintiff is not required to aver capacity to sue. One who desires to raise the issue must do so by specific averment supported by particulars within the pleader's knowledge.¹ This the defendant failed to do. The answer to paragraph "Sixth" of the complaint did not satisfy the requirements of Rule 9(a) and, therefore, failed to raise an issue as to plaintiff's capacity to sue. Kucharski v. Pope & Talbot, Inc., 4 F.R.D. 208 (S.D.N.Y.1944). Failure to comply with Rule 9(a) precludes the defendant from raising the issue at the conclusion of the trial. Waldrip v. Liberty Mutual Ins. Co., 11 F.R.D. 426 (W.D.La.1951); Coburn v. Coleman, 75 F.Supp. 107 (W. D.S.C.1947). Failure to raise this issue by motion or answer constitutes a waiver. Coburn, v. Coleman, supra; Trounstine v. Bauer, Pogue & Co., 144 F.2d 379 (2nd Cir. 1944), cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621 (1944).

The defendant also ignores Rule 17(b), Federal Rules of Civil Procedure. Here is a specific rule precisely on point which makes it crystal clear that the law of Massachusetts, as to what representative of a decedent may sue in the courts of that Commonwealth, has no bearing upon the capacity of the plaintiff to sue the defendant in this court in her representative capacity as administratrix appointed pursuant to the law of New York State, in which this district court is held.² Under the law of New York, an administratrix appointed in New York has the capacity to sue in New York under a foreign death statute, even though that statute requires that, if such an action is brought in the state where death occurred, it may be brought only by an administratrix qualified under the law of that state. Meehan v. Central Railroad Company of New Jersey, 181 F. Supp. 594, 606 (S.D.N.Y.1960); Jongebloed v. Erie Railroad, 180 Misc. 893, 42 N.Y.S.2d 260 (1943), aff'd, 266 App. Div. 960, 44 N.Y.S.2d 681 (1943).

I conclude that the plaintiff has capacity to sue the defendant in this action in this court.

28 U.S.C. § 2680(a) Does Not Absolve the Government From Liability.

28 U.S.C. § 2680(a) provides that the Federal Tort Claims Act does not apply to "Any claim based upon an act or omission of an employee of the government * * * based upon the exercise or performance or the failure to exercise or perform a discretionary duty or function on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

Prior to the decision in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the precise application of section 2680(a) was described as an area pervaded by judicial inconsistency and confusion. Note, 66 Harv.L.Rev. 488 (1953). The legislative history of the section has been described as being of little or no help in determining its application. Hernandez v. United States, 112 F.Supp. 369 (D. Hawaii 1953). However, in the lower federal courts a distinct line of cases developed supporting the view that, where simple negligence is the gravamen of the complaint, there is a point at which discretion ceases and liability for negligent conduct ensues. Thus, while the decision to engage in a particular activity may not be actionable, although negligent, the negligent conduct of the activity itself is actionable. In United States v. Gray, 199 F.2d 239 (10th Cir. 1952), in which a mental patient in the absence of her guard hurled herself through a window and injured herself, the court pointed out that although the hospital in the exercise of its discretion could have refused to admit her as a patient, once it chose to admit her it was bound to exercise due care for her protection. And in Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir. 1951), ...