Universal Airline v. Eastern Air Lines

• Decision Date: 23 February 1951
• Docket Number: No. 10501.,10501.
• Citation: 188 F.2d 993
• Parties: UNIVERSAL AIRLINE, Inc. v. EASTERN AIR LINES, Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

188 F.2d 993 (1951)

UNIVERSAL AIRLINE, Inc. v. EASTERN AIR LINES, Inc.

No. 10501.

United States Court of Appeals District of Columbia Circuit.

Decided February 23, 1951.

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Sheldon E. Bernstein and Nathan L. Silberberg, Washington, D. C., with whom Daniel J. Anderson, Washington, D. C., was on the brief, for appellant.

Richard W. Galiher, Washington, D. C., for appellee.

Emory T. Nunneley, Jr., General Counsel, Civil Aeronautics Board, John H. Wanner, Associate General Counsel, Civil Aeronautics Board, and O. D. Ozment, Attorney, Civil Aeronautics Board, all of Washington, D. C., filed a brief on behalf of the Civil Aeronautics Board as amicus curiae, urging reversal.

Before WILBUR K. MILLER and WASHINGTON, Circuit Judges, and ROBERT N. WILKIN, District Judge (retired) sitting by designation.

WILKIN, District Judge.

This is an appeal from an order of the United States District Court for the District of Columbia which dismissed plaintiff's second cause of action, and from a judgment entered on a verdict in favor of defendant on its counterclaim. The court dismissed plaintiff's second cause of action based on alleged statements of defendant for the reason that it was barred by the statute of limitations of the District of Columbia Code. The case then proceeded to trial on claims by both parties for damages caused by a mid-air collision between passenger planes. The verdict was against plaintiff on its complaint and in favor of defendant on its counterclaim.

This appeal is based upon four main contentions:

1. The verdict and judgment are not supported by the evidence.

2. The trial court erred in dismissing plaintiff's second cause of action.

3. The trial court erred in excluding testimony as to loss suffered by plaintiff from discouragement of trade.

4. The trial court erred in admitting testimony, particularly that of Sidney D. Berman, investigator for the Civil Aeronautics Board.

In support of the fourth contention the Civil Aeronautics Board filed a brief as Amicus Curiae.

These grounds of appeal must be considered separately.

1. The Evidence.

The collision from which this case arose also gave rise to the case of Kuhn v. Civil Aeronautics Board, 87 U.S.App. D.C. 130, 183 F.2d 839. The known facts were the same in both cases and there was no dispute about them. The conflict was over inferences and arguments based on the facts.

Both planes were en route from Newark, New Jersey, to Miami, Florida. They were using the same airway and cruising at an altitude of 2,000 feet. The appellant's aircraft, a Douglas DC-3, departed from Newark at 5:07 p. m., and maintained a speed of approximately 150 miles per hour, and appellee's airplane, a Douglas DC-4, departed at 5:22 p. m. and flew at about 200 miles per hour. The plane which left first was given clearance by the New York Airway Traffic Control Center under an Instrument Flight Plan, and the plane departing later was issued clearance under Contact (or Visual) Flight Rules, which required the pilot to guide his aircraft by visual means rather than by instruments. The plane leaving first had the right of way.

The pilot of the DC-4 was informed by the Air Traffic Control Center that the DC-3 had departed fifteen minutes earlier and was proceeding along the same route and at the same altitude as that to be followed by the DC-4. The pilots of the DC-3 had no knowledge of the plane which departed later.

The time when the DC-4 should overtake the DC-3 could have been determined by the DC-4's pilots through ordinary arithmetical computation or by use of standard air navigational aids. At that time the collision occurred. The pilots of appellant's plane, the DC-3, did not see the other plane at any time. The pilot who was operating appellee's plane did not see the DC-3 at any time, but the co-pilot of the DC-4 did see the DC-3 a second or two before the collision, at which time he seized the controls and attempted a maneuver to avoid a crash.

Neither weather nor mechanical difficulties contributed to the the collision in any way. The weather was excellent, flying lights were in operation, and the visibility was from twelve to fifteen miles. For about twenty minutes prior to the collision the DC-3 was "straight and level on course steering between 255° and 260°." About two minutes before the collision the DC-4 made a turn to the left and was on a heading of approximately 230°. With reference to the DC-3, the impact was from the rear and "to the left and mostly forward," and some of the propeller blades on the DC-3 were bent forward by the collision.

It is not for this court to substitute its own views as to the facts for those of the triers of fact below, when there is conflicting evidence. But the evidence in this case is clear and without substantial conflict. It shows that the collision was occasioned by the negligence on the part of appellee's pilots (regardless of the unwarranted inferences and arguments that the DC-3 was off course or had been off course). It is the conclusion of this court, therefore, that the verdict and judgment must be set aside and a new trial ordered.

2. Dismissal of Second Cause of Action.

This court finds no error in the trial court's dismissal of plaintiff's claim based upon alleged statements of defendant. The second cause of action in the amended complaint did not relate back to the time of filing the original complaint. It set up a new and separate claim. Whether the alleged statements are denominated slander, libel or malicious interference with business, by their nature they come within the purview of the first part of Section 12-201 of the District of Columbia Code¹ and were therefore barred after one year. Since the statements relied on are defamatory in nature, the statute of limitations applicable to libel actions cannot be evaded by referring to the cause of action in some other terms. Lucci v. Engel, Sup., 73 N. Y.S.2d 78. A statute of limitations affects procedure, and it is therefore the statute of the forum that controls. Kaplan v. Manhattan Life Ins. Co., 71 App.D.C. 250, 109 F.2d 463; Wells v. Alropa Corp., 65 App.D.C. 281, 82 F.2d 887.

3. Exclusion of Evidence.

This court finds no error in the exclusion of evidence offered by plaintiff as to damages resulting from the discouragement of trade. Loss of trade resulting from an accident such as the collision in this case is considered, as a rule, too general and too remote to come within the measure of damages assessable against a defendant found guilty of negligence. The authorities cited by appellant recognize the general rule that loss of profits may not be admitted in evidence where such profits are the return from capital invested in the business, or are derived from the labor of others, and the facts in this case do not bring it within the exceptions to that rule. 122 A.L.R. 299.

4. Error in Admitting Testimony.

The appellant argues that the testimony of two witnesses was inadmissible: (1) Sergeant Caldwell, (2) Inspector Berman.

(1) As to Sergeant Caldwell, in view of the undisputed testimony of the pilots of the two planes, the location of the planes at the time of collision, and for some time before, appears to be conclusively established. The testimony of Sergeant Caldwell as to a restricted area where commercial planes could not fly seems irrelevant. There is no evidence to indicate that either plane was over such restricted area. It would seem, however, that the appellant did not object to such testimony, and if it had objected, the testimony could hardly be held to be prejudicial. The only prejudice to appellant was in the inferences and arguments based on the Sergeant's testimony. The testimony as to a restricted area would not support the argument that the DC-3 was off course or "lost"; neither would such testimony support the charge of the court as to the air regulations for aircraft on crossing courses.

The only testimony, other than that of the pilots, bearing upon the courses of the two planes was that of the witness Berman. He said: "I can only say that at collision the longitudinal axes of the two planes were respectively to each other as approximately 74°." Counsel for plaintiff then stated to the witness: "* * * you would know nothing whatsoever as to the relative path of approach of these two planes?" and the witness answered: "That is correct. I would like to make it very clear that the airplanes may be in turning flight before contact. I know nothing about that. The only thing I know is that at the moment of impact, their axes were approximately 74°." In view of the testimony of the co-pilot of the DC-4 that he had seized the controls and attempted a maneuver to avoid a crash, the testimony of Berman was no basis for the assumption or argument that the DC-3 was off its prescribed course, or in a crossing position. So, even though there was nothing prejudicial in the Caldwell testimony itself, it could not justify the argument and charge mentioned.

(2) As to the testimony of Berman, so far as the parties are concerned it was prejudicial error to allow him to testify and demonstrate as to the courses of the aircraft based on his findings of the angle of incidence, since by the undisputed testimony of the co-pilot a violent shift had been made just before the collision.

But there still remains the important question whether it was error to order Berman to testify in spite of his objection and the regulations of the Civil Aeronautics Board, and the further question as to admissibility of his testimony as to (1) his observations, (2) his opinions, and (3) reports of the Board. It was to these issues that the Board addressed its argument and brief, saying at the outset that a determination of the questions would establish a precedent, not only of interest to it, but of great importance to the public.

Berman was an employee of the Civil Aeronautics Board, charged with the duty of personally inspecting...