Trihey v. Transocean Air Lines

• Decision Date: 05 May 1958
• Docket Number: No. 15446.,15446.
• Citation: 255 F.2d 824
• Parties: Joseph M. TRIHEY, Administrator of the Estate of Maria G. Muna, deceased, et al., Appellant, v. TRANSOCEAN AIR LINES, Inc., a corporation, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

255 F.2d 824 (1958)

Joseph M. TRIHEY, Administrator of the Estate of Maria G. Muna, deceased, et al., Appellant, v. TRANSOCEAN AIR LINES, Inc., a corporation, et al., Appellees.

No. 15446.

United States Court of Appeals Ninth Circuit.

May 5, 1958.

COPYRIGHT MATERIAL OMITTED

A. J. Blackman, Los Angeles, Cal., for appellant.

Crider, Tilson & Ruppe, Henry E. Kappler, Los Angeles, Cal., for Transocean Air Lines.

Belcher, Kearney & Fargo, Vernon Foster, Louis E. Kearney, Los Angeles, Cal., for Douglas Aircraft Corp.

Dryden, Harrington, Horgan & Schwartz, Los Angeles, Cal., for Slick Airways.

Before FEE, CHAMBERS and BARNES, Circuit Judges.

BARNES, Circuit Judge.

This is an appeal from a decision of the District Court for the Central District of California in an action in admiralty for the wrongful death of three passengers lost in the crash of an airplane operated by Transocean Air Lines, Inc., a corporation (hereinafter, Transocean), over the Pacific Ocean on July 12, 1953. It arises under the Death on the High Seas Act, 46 U.S.C.A. §§ 761-768 (hereinafter, D.H.S.A.). Exclusive jurisdiction is conferred on the admiralty court. 46 U.S.C.A. §§ 761; Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780. The action is against the carrier, Transocean; the maintenance contractor, Slick Airways, Inc., a corporation (hereinafter, Slick); and the manufacturer of the aircraft, Douglas Aircraft Corporation, Inc., a corporation (hereinafter, Douglas).

Plaintiff is the qualified administrator of the estates of Maria G. Muna, deceased; Francisco G. Muna, deceased; and Catalina Manalisay Guiterrez, deceased, and represented their heirs in filing this suit based on negligence. He invoked the doctrine of res ipsa loquitur. The trial judge indicated doubt if the doctrine applied and required plaintiff to present his case in full, i. e., to present all evidence of specific acts of negligence known to him. At the close of the case, by way of motion for inclusion of a statement of decision and by objections to the findings of fact and conclusions of law, plaintiff sought to obtain a clear ruling or statement from the court, stating whether the court had applied or considered applicable the doctrine of res ipsa loquitur. These several motions were denied and no clear ruling on the point was ever made.

In this case appellant strongly urges (though not exclusively) that the applicability of the doctrine of res ipsa loquitur would cure all the defects seen by the trial court in his case. We cannot agree, for under the doctrine of res ipsa loquitur, as expounded by the Supreme Court of the United States, and applicable in admiralty proceedings, while the doctrine of res ipsa loquitur permits a verdict for one in appellant's position, its application does not require it.

Appellant urges that because respondents offered no evidence to explain the cause of the aircraft plunging into the sea, they are liable. Appellant himself offered no evidence to explain the cause of the crash. He offered evidence to show what might have caused it. Defendants offered evidence to show what they knew of the aircraft's maintenance and operation. (Witnesses Carson, Buckalew, Wood, Captain Keating, and Exhibits A to M, inclusive.) The matter then rested with the trial court's conclusion as to where the preponderance of evidence lay. Findings of fact adverse to appellant, supported by conflicting evidence, were filed, as well as appropriate conclusions of law favoring all defendants. We are asked to reverse, as a matter of law.

Plaintiff's points on appeal are these:

1. Res ipsa loquitur should have been applied by the trier of fact.

2. If res ipsa loquitur was applied, it was sufficient as a matter of law for plaintiff to have judgment.

3. Even without res ipsa loquitur the clear preponderance of the evidence requires a judgment for plaintiff.

4. Errors in findings.

5. Error in failure to award plaintiffs value of baggage lost and fares paid by decedents.

Most of the "facts" are uncontradicted, but there is a substantial conflict as to their interpretation on the issue of negligence.

The plane involved was on a flight from Guam to Oakland via Wake Island and Hawaii. It crashed without radio warning of trouble approximately one hundred miles east of Wake Island some time after take-off. Bits of the plane and fourteen unidentified bodies were recovered from the ocean.

Plaintiff introduced much evidence of alleged deviations from Civil Air Regulations, the manuals of the carrier, and approved maintenance procedures; evidence of maximum use of the plane by the carrier from purchase to the time of the crash; alleged fatigued condition of the crew (out of forty-two hours from takeoff the crew spent twenty-eight hours on duty, twenty-two hours aloft, and thirteen hours off duty — at Guam); evidence of allegedly faulty maintenance of the automatic pilot (— plaintiff strongly implies this was the cause of the crash —) and of No. 4 engine; and alleged poor qualifications of one of the co-pilots.

Slick was the original owner of the plane, but had sold it to Transocean in 1952. Slick was the maintenance contractor for the aircraft and had done its last maintenance work approximately three weeks before the crash. There was evidence of Slick's allegedly faulty maintenance and testing of the plane in various particulars.

As to Douglas there was no evidence introduced.

Applicability of Res Ipsa Loquitur.

We agree that res ipsa loquitur is applicable to certain aircraft crash cases. We are unable to determine from the record whether or not the trial judge applied the doctrine in this case. He originally felt it did not apply; he required the appellants to produce their evidence as to defendant's alleged negligence; he stated the applicability of the doctrine was "still open for consideration at a later date"; he permitted counsel to argue its applicability on final argument and to cite cases at final argument in support of its applicability. The court then gave judgment for defendants without disclosing whether or not he considered res ipsa loquitur applicable.

But whether or not the court applied the doctrine is not controlling on this appeal. This because, were it applied, the trial court was yet required to weigh all the evidence produced. This the court did and made findings adverse to appellants in respect to each defendant's negligence (Findings XXXIII, XXXIV, XXXV); in respect to the airworthiness of the plane and in respect to its maintenance (Findings XXXVI, XXXVII); in respect to the certification of the plane, and the fatigue of the crew (Findings XXIII, XXV, XXVI).

In other words, even if res ipsa loquitur should have been applied by the trier of fact, and was not, the application of that doctrine alone to the facts of this case is not sufficient to require a judgment as a matter of law for plaintiffs. And we cannot agree that either with or without res ipsa loquitur we are required to rule that the clear preponderance of the evidence, as a matter of law, requires a judgment for plaintiffs. The rule followed at one time that trial de novo exists in admiralty appeals is no longer the law. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Western Canada Steamship Co. v. United States, 9 Cir., 1957, 245 F.2d 921, note 2.

We have seen that an action under the "Death on the High Seas" Act is exclusively triable on the admiralty side of the court. Higa v. Transocean Airlines, supra 230 F.2d 785.

Does res ipsa loquitur apply in admiralty cases? The Supreme Court has at least impliedly so ruled in a case in admiralty where res ipsa loquitur was expressly applied without discussion of its possible inapplicability. Johnson v. United States, 1949, 333 U.S. 46, 68 S.Ct. 391, 392, 92 L.Ed. 468, reversing 9 Cir., 160 F.2d 789. In that case, the Supreme Court granted certiorari and reversed this Court "because of the seeming misapplication by the court below of Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416." Id., 333 U.S. at page 47, 68 S.Ct. at page 392.¹

Applying the Jesionowski rule to the facts of the instant case, we first ask, were the persons whose heirs are here suing without fault? There is no evidence one way or another. We know that passengers have become crazed or drunken and attempted to wrest control of airplanes from pilots. We know that individuals have attempted suicide from airplanes and endeavored to take all occupants with them to their death. All this is possible, but certainly not probable. Nor can we presume any such interference in this case. The presumption of the exercise of due care for one's own safety, if it applies to pilots and engineers of airplanes, should with equal or greater cogency apply to passengers. In the absence of all evidence as to conduct, we presume due care was exercised by all passengers.

We next ask, (if we assume the passengers were exercising due care for their own safety, and were therefore without fault, and died as a result of a plane disappearing without warning into the sea) whether there is the basis for a fair inference that, to paraphrase Jesionowski, "the man who dropped the plane" was negligent? If we knew that it was the pilot who caused the plane to dive into the sea, we think that such an inference of negligence would be a fair one. But apparently no one knows if there was pilot failure, or any human failure, connected with, or that proximately caused, the accident.

This court has applied res ipsa loquitur to a case involving the unexplained loss of an aircraft at sea. Haasman v. Pacific Alaska Air Express, D.C.D.Alaska 1951, 100 F.Supp. 1, affirmed sub nom. Des Marais v. Beckman, 9 Cir., 1952, 198 F.2d 550. There this Court approved the following language:

"The question presented, therefore, is whether the doctrine of res ipsa loquitur applies where the plane disappears during flight without a trace. The defendant\'s

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