Union Trust Co. of District of Columbia v. United States, Civ. No. 4691-50

CourtUnited States District Courts. United States District Court (Columbia)
Citation113 F. Supp. 80
Docket NumberCiv. No. 4691-50,4692-50.
Decision Date05 May 1953

Galiher & Stewart, Washington, D. C., and Bigham, Englar, Jones & Houston, New York City, for defendant Eastern Air Lines, Inc.

David G. Bress and Sheldon Bernstein, Washington, D. C., for Union Trust Co.

Ross O'Donoghue and Vincent Burke, Jr., Asst. U. S. Attys., Washington, D. C., for U. S.

McGUIRE, District Judge.

These are wrongful death actions by the executor of the estates of Ralph E. Miller and Mildred Miller, husband and wife, who died in an air collision of November 1, 1949, in the vicinity of Washington National Airport while they were passengers in an Eastern Airlines plane.

Before trial the parties had stipulated and agreed on the following facts:

At approximately 11:46-11:47 A.M., E.S.T., on November 1, 1949, an Eastern Airlines DC-4 No. N88727, denominated as Eastern flight 537, and a P-38 military type aircraft No. NX-26927 collided in mid-air while the Eastern DC-4 plane was approximately 300 feet in the air on final approach for landing on runway number 3 at the Washington National Airport, Washington, D. C. Eastern flight 537 was carrying a crew of 4 persons (pilot, copilot, steward and stewardess) and 51 passengers, all of whom, including plaintiffs' decedents, were killed in and as a direct and proximate result of said accident. The P-38 was carrying only the pilot, Eric Rios Bridoux, a citizen of Bolivia and an officer in the Bolivian Air Force who was then operating the P-38. Bridoux was seriously injured in said collision but survived. Both aircraft were completely wrecked and such debris or components of the planes as were thereafter found in or near the scene of the collision are indicated on a stipulated chart.

Eastern's flight 537 was enroute from Boston, Massachusetts, via intermediate points to Washington, D. C. Over Beltsville, Maryland, 15 miles northeast of the Washington National Airport, flight 537 contacted the Washington control tower on 119.1 megacycles voice radio communications and the flight was cleared by the tower to enter a left traffic pattern for landing on runway number 3. One minute before that clearance, that is, at 11:37 A.M., E.S.T., the P-38 had taken off from runway number 3 at Washington National Airport on a test flight. From the time the P-38 departed until after the accident, visibility in the vicinity of the airport remained at 15 miles, ceiling was 6,500 feet with scattered clouds at 3,500 and surface wind was from the northeast 20-25 miles per hour.

As to the defendant Eastern Airlines, there was a jury verdict against it, while the defendant Bridoux was exonerated.

The case of the defendant United States was tried to the Court at the same time, the plaintiff alleging negligence of a concurring character specifically set forth in a pretrial stipulation:

a. The failure of the control tower personnel to issue a timely warning to the Eastern plane as to the P-38 being on final approach;

b. The failure of the tower personnel to take appropriate steps to warn the P-38 that the Eastern plane was on final approach and to deter him from flight actions inconsistent with or dangerous thereto;

c. The failure of the tower personnel to take appropriate action to separate the two planes involved so as to avoid collision;

d. The failure of the tower personnel to employ simultaneous radio transmissions to both planes to assure each being advised as to the actions of and the directions to the other;

e. The failure of the tower personnel to require the Eastern plane to follow the prescribed landing pattern and toleration of a shortcut thereof;

f. The failure of the tower to warn the P-38 that the Eastern plane was not following the prescribed landing pattern but was shortcutting same;

g. Violation of air regulations then and there in full force and effect, as follows: Civil Air Regulations, Part 26, § 26.26, Aeronautical Rules for the Washington National Airport, § 571.3.

I conclude under the statute, the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq.; so-called, relied upon by the plaintiff in its suit against the Government, that the United States has waived immunity, and the Court has jurisdiction.

The case of Feres, Executrix v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, relied on heavily by the Government in support of its motion for a directed judgment in its favor, can be distinguished.

True, Mr. Justice Jackson, who spoke for the Court and interpreting the statute said: "* * * It will be seen that this is not the creation of new causes of action but acceptance of liability under circumstances that would bring private emphasis supplied liability into existence." 340 U.S. at page 141, 71 S.Ct. at page 157.

And it is on this language that the Government seizes with avidity. It contends that since the United States, through the Civil Aeronautics Board and the Administrator of Civil Aeronautics, in discharge of a congressional mandate, has promulgated exhaustive and complete air traffic rules governing all phases of air traffic operation and control, which have nationwide force and application—that this is a function sovereign in character and constitutional in genesis:

"Congress has recognized the natural responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Emphasis supplied Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government." Northwest Air Lines v. State of Minnesota, 1944, 322 U.S. 292, 303, 64 S.Ct. 950, 956, 88 L.Ed. 1283.

With the duty thus imposed of the "regulation of air commerce in such manner as to best promote its development and safety * * *", Title 49 U.S.C.A. § 402(e), there follows as a matter of course the corollary responsibility to promote safety of flight, by the prescription of air traffic rules, and their revision from time to time as circumstances and conditions warrant and dictate, "* * * for the prevention of collisions between aircraft, and between aircraft and land or water vehicles." 49 U.S.C.A. § 551(a) (7).

Thus the Government concludes since this function is purely governmental—that is, sovereign—there is no liability since the only allowable claims are those which "* * * in the same manner and to the same extent a private individual under like circumstances * * *" would be liable for, with certain exceptions not material here, and since there is no liability of a private individual "even remotely analogous to that * * *" now asserted against the United States, the claim falls.

For it is argued no private individual has power to assume the prerogatives of sovereignty, for no private person, individual or corporate could possibly act in the capacity in which the United States acts in its regulation of air commerce, citing Feres, supra.

But the Feres case as has been said can be distinguished for it went off on the matter of status. And the distinction is one of substance. Feres was a soldier who perished in a barracks fire while on active duty; the negligence alleged being the quartering him in barracks which were known or should have been known to have been unsafe because of a defective heating plant—the Court concluding:

"We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Italics supplied. Nor is there any liability `under like circumstances,' for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command."
340 U.S. supra, at page 141, 71 S.Ct. at page 157.

It is upon this language which the Government strongly relies, but in support of the distinction made, it is suggested that the concluding paragraph of the opinion, 340 U.S. supra, at page 146, 71 S.Ct. 153, clearly and conclusively shows that the Government's argument is actually what it purports to be—analogous only, and remotely so. That paragraph as is germane reads as follows:

"We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. * * * We do not think that Congress,

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