Nolan v. Transocean Air Lines

• Decision Date: 14 May 1959
• Citation: 173 F. Supp. 114
• Parties: Robert F. NOLAN, as Administrator of the Estate of Jasper Wallace Hall, Deceased, Marjory M. Hall, individually, and Marjory M. Hall as Guardian ad Litem of Judith Marie Hall, an infant, Plaintiffs, v. TRANSOCEAN AIR LINES, Defendant.
• Court: U.S. District Court — Southern District of New York

173 F. Supp. 114

Robert F. NOLAN, as Administrator of the Estate of Jasper Wallace Hall, Deceased, Marjory M. Hall, individually, and Marjory M. Hall as Guardian ad Litem of Judith Marie Hall, an infant, Plaintiffs, v. TRANSOCEAN AIR LINES, Defendant.

United States District Court S. D. New York.

May 14, 1959.

Speiser & O'Brien, New York City, for plaintiffs. Edward M. O'Brien, New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City, for defendant. William J. Junkerman, Maurice L. Noyer, New York City, of counsel.

LEVET, District Judge.

The defendant, Transocean Air Lines, has moved for summary judgment in its favor upon the ground that it is entitled to judgment as a matter of law for the reason that the action is barred by the California Statute of Limitations.

The action seeks recovery of damages for the allegedly wrongful death of Jasper Wallace Hall in an airplane accident in the vicinity of Alvarado, in the State of California, on March 20, 1953. The complaint was filed in this court on November 7, 1958.

The complaint sets forth four alleged causes of action. The first cause of action is brought on behalf of Robert F. Nolan, as Administrator of the Estate of Jasper Wallace Hall, deceased, and alleges that the said Robert F. Nolan was issued letters of administration on the 18th day of February, 1958, that jurisdiction of the court is based on diversity of citizenship, that the decedent met his death as a result of the alleged negligent operation, management and control of a certain airplane by the defendant which resulted in an accident occurring on March 20, 1953, in the State of California, and that the decedent left him surviving, as his lawful heirs, his wife, Marjory M. Hall, and his daughter, Judith Marie Hall, an infant of the age of 5 years, and that by reason of defendant's negligence the estate of the decedent and the next of kin were damaged in the sum of $200,000.

The second cause of action is brought by Marjory M. Hall, individually, on her own behalf as wife and next of kin of the deceased, and repeats and realleges essentially the same allegations concerning the alleged negligence and liability of the defendant as is alleged in the first cause of action.

The third cause of action is brought by Marjory M. Hall, as Guardian ad Litem of the infant-plaintiff, Judith Marie Hall. In this cause of action it is alleged that this court appointed Marjory M. Hall as Guardian ad Litem of Judith Marie Hall for the purpose of maintaining this action, that on March 20, 1953, and prior thereto, the infant, Judith Marie Hall, was the daughter of the decedent, who was living with and being supported by him, and that as a result of the alleged wrongful death of the decedent the infant lost the society, companionship and support of the decedent and was damaged thereby.

The fourth cause of action is brought by Robert F. Nolan, as Administrator of the Estate of Jasper Wallace Hall, deceased, and alleges generally that the decedent was being transported on defendant's aircraft pursuant to an agreement between the United States Government and the defendant, and that one of the conditions of the agreement was that the defendant would provide safe passage for the decedent and that the decedent was one of the intended beneficiaries of the said agreement, and that the defendant breached its agreement to provide safe passage to the decedent, as a result of which his estate and next of kin were damaged in the amount of $200,000.

The facts involved here are as follows:

1. The widow, Marjory M. Hall, was born November 17, 1936.

2. The decedent, Jasper Wallace Hall, was born March 2, 1934.

3. The marriage took place on December 26, 1951, in South Carolina.

4. Judith Marie Hall, the child of this couple, was born December 2, 1952.

5. The death of Jasper Wallace Hall took place on March 20, 1953.

6. The widow reached the age of 18 on November 17, 1954, and the age of 21 on November 17, 1957.

7. The administrator was appointed on February 18, 1958.

8. The action was commenced in this court on November 7, 1958.

9. The widow is a resident of Charleston, South Carolina.

The California Wrongful Death Statute, upon which this action is predicated, allows suit by the heirs or personal representatives of decedent. Section 377 of the California Code of Civil Procedure. Under California law, such an action must be commenced within one year from the decedent's death. Section 340, subd. 3, California Code of Civil Procedure; Marks v. Reissinger, 1917, 35 Cal.App. 44, 169 P. 243. However, the statute is tolled during the minority of the person entitled to sue. Section 352 of the California Code of Civil Procedure.

Section 25 of the California Civil Code reads in part as follows:

"Minors are all persons under 21 years of age; * * * provided further, that any person who has reached the age of 18 years and thereafter contracts a lawful marriage, or who has contracted a lawful marriage and thereafter reaches the age of 18 years, shall in the first instance upon contracting such marriage, and in the second instance upon reaching the age of 18 years, be of the age of majority and be deemed an adult person for the purpose of entering into any engagement or transaction respecting property or his estate, or for the purpose of entering into any contract, or for the purpose of maintaining or defending an action affecting his marital status, including therein any action or proceeding involving his support or the support or custody of children of the marriage, or determination of property rights, the same as if he were 21 years of age. * * *"

Defendant's argument in support of its motion may be summarized as follows:

1. The one-year California statute of limitations for the bringing of a wrongful death action is applicable here.

2. By virtue of Section 25 of the California Civil Code, Marjory M. Hall, the widow, attained her majority on November 17, 1954, her eighteenth birthday.

3. This action became time-barred on November 17, 1955, one year after Marjory M. Hall reached her eighteenth birthday.

4. The action of the daughter, Judith Marie Hall, became barred at the same time as that of the widow.

The plaintiffs, in opposition to this motion, contend:

1. That the law of...