Southeastern Aviation, Inc. v. Hurd

• Decision Date: 07 March 1962
• Parties: , 209 Tenn. 639 SOUTHEASTERN AVIATION, INC., d/b/a Southeast Airlines, Petitioner, v. A. H. HURD, Individually and as Administrator of Phyllis Eloise Hurd Halstead, deceased, Respondent.
• Court: Tennessee Supreme Court

Page 436

355 S.W.2d 436

13 McCanless 639, 209 Tenn. 639

SOUTHEASTERN AVIATION, INC., d/b/a Southeast Airlines, Petitioner, v. A. H. HURD, Individually and as Administrator of Phyllis

Eloise Hurd Halstead, deceased, Respondent.

Supreme Court of Tennessee.

March 7, 1962.

Lacy West, Joseph O. Fuller, Kingsport, Erma G. Greenwood, R. R. Kramer, Kramer, Dye, McNabb & Greenwood, Knoxville, of counsel, for petitioner.

Preston H. Taylor, Wilson, Worley & Gamble, Kingsport, for respondent.

FELTS, Justice.

This was an action brought by respondent against petitioner for alleged wrongful death of his interstate, Mrs. Phyllis Eloise Hurd Halstead. In the Trial Court there was a verdict and judgment for him, which was affirmed by the Court of Appeals. We granted certiorari and the case has been heard here.

Petitioner was a common carrier of passengers by air, a Tennessee corporation, operating an intra-state airline in Tennessee between Memphis and Tri-City Airport and intermediate points. On January 8, 1959, at about 8:30 P. M., its DC-3 plane, on its regular scheduled flight from Memphis to Tri-City Airport, failed to land at that airport, but flew on beyond some 20 miles, and crashed into the side of Holston Mountain in Tennessee, killing all of its passengers and its crew.

Among the passengers thus killed were Mrs. Phyllis Eloise Hurd Halstead and her husband, Frank Halstead. Neither of them ever had a child. Her surviving next of kin was her father; and he, individually and as her administrator, brought this action for damages for her death, charging it was caused by petitioner's negligence in the operation of its plane, in a number of particulars set out in the declaration.

Petitioner removed the case to the United States District Court, claiming it was a 'case arising under the laws of the United States.' That court overruled this claim and remanded the case. Petitioner then set up certain defenses by pleas and motions, which were overruled, and the case was submitted to the jury. They returned a verdict for respondent for $150,000.00-$145,000.00 compensatory and $5,000.00 punitive. The Trial Court accordingly entered judgment, which was affirmed by the Court of Appeals.

Petitioner urges here three main matters for dismissal and a number of others for reversal and a new trial. It insists (1) that this case should be dismissed under the doctrine of federal pre-emption; (2) that it should also be dismissed because no right of action survived for the death sued for, either under the law of Tennessee or the law of the United States; and (3) that a verdict should have been directed for petitioner because the undisputed evidence was that the death was due not to its negligence, but to unavoidable accident.

First. Petitioner contends that by the Federal Aviation Act of 1958, 49 U.S.C.A. § 1301 et seq., Congress took control of the airspace of the United States, set up a federal agency to license and regulate the operation of aircraft, and pre-empted the field as to supplant all state law and state court jurisdiction therein; and that this action should be dismissed because the state court has no jurisdiction of it and no state law may be applied to it.

Petitioner relies mainly upon the parts of the Aviation Act of 1958 carried in 49 U.S.C.A. §§ 1508(a) (as to airspace), 1421 (as to power and duty of the Administrator to fix regulations and minimum standards), and 1471-1473 (as to penalties for violations of certain provisions of the Act). The material part of section 1508(a) is in these words:

'The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States, including the airspace above all inland waters and the airspace above those portions of the adjacent marginal high seas, bays, and lakes, over which by international law or treaty or convention the United States exercises national jurisdiction. * * *' (49 U.S.C.A. § 1508).

The substance of section 1421 is that the Administrator of the Federal Aviation Agency is empowered, and it is made his duty, to promote safety of flight of civil aircraft in air commerce by prescribing rules, regulations, and minimum standards for the design of aircraft, appliances, inspections, maximum hours of service of airmen and other employees, and such other matters as the Administrator may find necessary to provide adequately for safety in air commerce, having regard 'to the duty resting upon air carriers to perform their services with the highest possible degree of safety.'

It appears the purpose of the Federal Aviation Act of 1958 is to take control of the airspace of the United States, to set up federal agencies to license and regulate the operation of aircraft, and to provide rules, regulations and minimum standards to promote the efficiency and safety of such operation, and generally to accomplish the purpose of the Act. Air Lines Pilots Association, International v. Quesada (1960), 2 Cir., 276 F.2d 892, 894-895.

It seems clear this Act does not exclude state law not inconsistent with its purpose. Its language above quoted (sec. 1508(a)) is the same as that of the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 176(a), which was held not to exclude consistent state law--a law of Nebraska taxing aircraft used interstate in landing on and departing from airports within that state. Braniff Airways v. Nebraska State Board, etc., 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 970.

There, the Court said that 'these Federal Acts [the Air Commerce Act of 1926 and the Civil Aeronautics Act of 1938] are bottomed on the commerce power of Congress, not on national ownership of the navigable airspace, as distinguished from sovereignty'; and that federal power over navigable airspace, like federal power over navigable streams, 'does not prevent state action consistent with that power.' To the same effect: Huron Portland Cement Co. v. Detroit (1960), 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852.

The conclusion that the Federal Aviation Act of 1958 does not exclude consistent state law, or alter existing remedies under state law, seems to be strengthened by the words of the savings clause of that Act (49 U.S.C.A. § 1506), which are as follows: 'Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.'

The Court of Appeals put its decision upon this savings clause, citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, to the effect that 'there is no federal general common law', and holding that this saving of 'the remedies now existing at common law or by statute' refers to the common law and statutes of the several states. Learned counsel for petitioner insists that this reference is not to state law, but to federal law. We think this argument is unsound. Porter v. Southeastern Aviation, Inc. (1961), D.C., 191 F.Supp. 42, 43.

The language of this savings clause, above quoted, is the same as that of the Interstate Commerce Act (49 U.S.C.A. §§ 22), which has been held to refer to the remedies under the common law and statutes of the several states and to preserve their 'general and concurrent jurisdiction' in suits for damages against an interstate carrier. Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U.S. 121, 130, 35 S.Ct. 484, 59 L.Ed. 867, 872; Pennsylvania R. Co. v. Sonman Shaft Coal Co., 242 U.S. 120, 37 S.Ct. 46, 61 L.Ed. 188; Central New England Ry. Co. v. Boston & Albany R. Corp., 279 U.S. 415, 420, 49 S.Ct. 358, 75 L.Ed. 770, 775.

The Federal Aviation Act of 1958 appears to be merely an administrative measure, limited to the regulation of the operation of aircraft in the interest of public safety. It does not touch the traditional area of the law of torts or private right, and does not give any remedy for an injury to such right, such as an injury to the person of a passenger caused by an air carrier's negligence in the operation of its plane.

Petitioner likens this Act to the Labor Management Relations Act, 29 U.S.C.A. § 141 et seq. which pre-empts the field and excludes state law in labor disputes. But since the latter affords no remedy for recovery of damages caused by a tort, state courts have jurisdiction in such a case to award damages according to 'its traditional law of torts.' United Construction Workers etc., v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; International Union, U.A.A. & A.I.W. v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030; cf., San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 243-244, 79 S.Ct. 773, 3 L.Ed.2d 775, 782, with Charles Dowd Box Co., Inc. v. John F. Courtney et al., 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 283.

But for another and stronger reason we think the state court has jurisdiction in this case. Respondent's (plaintiff's) declaration charged common-law negligence in several particulars, negligence in violating certain regulations of the Civil Aeronautics Board, and negligence so extreme as to be gross and wanton. That is, it is a suit in tort upon a right created by the law of the state, and not a case arising 'under the Constitution or laws of the United States.'

Nor did it lose its character as an action for negligence under state law because it also averred a violation of regulations of the Civil Aeronautics Board. Such averment merely added another ground of negligence for recovery; it did not raise an issue of federal law or invoke a federal right which would be supported if such law were given one construction or effect and defeated if given another. Dennis v. Southeastern Aviation, Inc., D.C., 176 F.Supp. 542, 543; Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584, 589-591, and cases there cited.

It was for this reason that this case was held not removable, not being a case under the...