Schloss v. Matteucci, 5921.

• Decision Date: 09 October 1958
• Docket Number: No. 5921.,5921.
• Citation: 260 F.2d 16
• Parties: Milton J. SCHLOSS, Executor of the Estate of Dan A. Collier, deceased, Appellant, v. Rolando J. MATTEUCCI, Administrator of the Estate of Ivan R. Spong deceased, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

260 F.2d 16 (1958)

Milton J. SCHLOSS, Executor of the Estate of Dan A. Collier, deceased, Appellant, v. Rolando J. MATTEUCCI, Administrator of the Estate of Ivan R. Spong deceased, Appellee.

No. 5921.

United States Court of Appeals Tenth Circuit.

October 9, 1958.

Robert Nordhaus, Albuquerque, N. M., for appellant.

Milton S. Seligman, Albuquerque, N. M., amicus curiæ.

James C. Ritchie and Jackson G. Akin, Albuquerque, N. M., for appellee.

Before MURRAH, PICKETT and BREITENSTEIN, Circuit Judges.

MURRAH, Circuit Judge.

The estate of one of the passengers on a Transworld Airlines regularly scheduled flight sued the Company and its pilot's estate, alleging that the pilot's negligence caused a crash of the airplane in New Mexico in which all passengers and crew perished. At the time of the disaster, a New Mexico statute provided that whenever a person shall die from the negligence of an employee while driving a public conveyance, the owner of such public conveyance shall forfeit and pay for every person so dying the sum of $10,000. § 22-20-4, N.M.S.A.1953.¹

This court and the New Mexico Supreme Court have construed this statute to exclude any liability of the negligent employee for the wrongful death. Tilly v. Flippin, 10 Cir., 237 F.2d 364, and In re Reilly's Estate, 63 N.M. 352, 319 P.2d 1069. Following this construction, the trial court awarded the statutory amount against the Airline, and dismissed the action against the pilot's estate.

On this appeal from the judgment of dismissal, the appellant accepts the construction placed upon the statute by the court, but earnestly contends that so construed, it is repugnant to the equal protection clauses of the federal and state constitutions.

One argument is that it is unconstitutionally discriminatory to deny a right of action for wrongful death against a negligent employee of a public conveyance, while granting the right against other negligent employees, under New Mexico's conventional wrongful death statute. § 22-20-1, N.M.S.A.1953. Another equal protection objection to the statute (presented amicus curiæ) is that conceding the constitutional power of the legislature to distinguish between liability of employees of public conveyances and others for wrongful death, the classification here must nevertheless fail because the Act unconstitutionally relieves a negligent operator of a public conveyance of all liability for wrongful death, while leaving him liable for personal injuries not resulting in death. This classification is said to serve no legitimate legislative purpose and is therefore without constitutional basis or justification.

Historically, and especially in later times, the federal courts have been extremely reluctant to strike down state legislation as a denial of the equal protection of the laws, except in cases involving civil rights. In cases like ours, the federal courts interfere with state legislative processes only when there is no ascertainable basis for rational classification or discrimination. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485. Classifications have been made to rest upon an almost infinite variety of facts and circumstances. See Willoughby on the Constitution of the United States, 2d Ed., § 1273; 12 Am.Jur., Constitutional Law, § 476 et seq. "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination." Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 465, 99 L.Ed. 563. Protection against unwise and improvident legislation lies in the exercise of the suffrage right, not in the courts. "We do not `sit as a super-legislature.'"...