Wiener v. United Air Lines, 469-58 consolidated with 923-58

• Decision Date: 14 August 1962
• Docket Number: 310-59,1112-58,1158-58,88-59,355-59,No. 469-58 consolidated with 923-58,76-59,275-59,1042-58,281-60.,641-59,288-59,1086-58,64-59,309-59,30-59,1040-58,1041-58,1195-58,361-59,970-58,469-58 consolidated with 923-58
• Citation: 216 F. Supp. 701
• Court: U.S. District Court — Southern District of California
• Parties: Janice WIENER, as Executrix of the Estate of Norton Wiener, Deceased, Plaintiff, v. UNITED AIR LINES, a corporation, and United States of America, Defendants.

216 F. Supp. 701

Janice WIENER, as Executrix of the Estate of Norton Wiener, Deceased, Plaintiff, v. UNITED AIR LINES, a corporation, and United States of America, Defendants.

No. 469-58 consolidated with 923-58, 970-58, 1040-58, 1041-58, 1042-58, 1086-58, 1112-58, 1158-58, 1195-58, 30-59, 64-59, 76-59, 88-59, 275-59, 288-59, 309-59, 310-59, 355-59, 361-59, 641-59, 281-60.

United States District Court S. D. California, Central Division.

August 14, 1962.

Margolis, McTernan & Branton, by Ben Margolis, Los Angeles, Cal., for Janice Wiener, etc.

Joseph C. Lavelle, Sacramento, Cal., for Stephen Emanuel.

Algerdas N. Cheleden, Anthony J. Bradisse, James A. Withers, Los Angeles, Cal., for Isabelle M. Larava, etc.

Belcher, Henzie & Fargo, by Frank B. Belcher, Leo Biegenzahn, Los Angeles, Cal., for Ruth E. Simmons, Ethyl E. Kean, Adm'x, etc., Hazel N. McKinney, Adm'x, Daisy R. Fedrick, Margaret K. Rankin, Adm'x, Alice L. Hight, Adm'x.

Jack Dunaway, Los Angeles, Cal., for Leona Mae Petrie, etc.

Oliver, Good & Sloan, by Richard L. Oliver, Los Angeles, Cal., for Max Kaufman, Adm'r, Raymond S. Lipson, Adm'r, Arlo W. Munch, Adm'r Johnson & Ladenberger, by Robert G. Johnson, Los Angeles, Cal., for Martha H. Kallenbaugh, Executrix, etc.

Samuel A. Miller, Los Angeles, Cal., for Carol U. Aaronson and others.

Gladys Towles Root, Los Angeles, Cal., for Dorothy M. Weil.

Bertrand Rhine, George H. Pratt, Los Angeles, Cal., for Inez O'Brien Kay and others.

Tuttle, Tuttle & Taylor, by William A. Norris, Los Angeles, Cal., Francis J. Garvey, Covina, Cal., for Helen A. Friedel and others.

Harold R. Spence, Augustus F. Mack, Jr., Los Angeles, Cal., for S. Rush Bailey III and others.

Collins & Clements, Los Angeles, Cal., Barrick, Poole & Olson, by John Poole, Pasadena, Cal., for Charles L. Rachford, etc.

Pastor & Zippser, by Stanley Zippser, Beverly Hills, Cal., for Edith Wagner Trujillo.

Flanagan & Allen, by R. Virgil Allen, Los Angeles, Cal., for Ruth L. Thomas.

Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Los Angeles, Cal., Milan M. Dostal, Trial Atty., Department of Justice, Los Angeles, Cal., for United States of America.

Chase, Rotchford, Downen & Drukker, by Hugh B. Rotchford, Los Angeles, Cal., for United Air Lines.

HALL, Chief Judge.

The United States of America and the United Air Lines, defendants in the above-entitled matters, are each cross-claiming against the other for indemnity or contribution.

On Friday, July 27, 1962, counsel for United Air Lines stated that they are not seeking contribution. In this connection, it will be noted that the parties agreed that the Pre-trial Conference Order would supplement the pleadings and govern the course of the trial unless modified. Par. IX. No motion was made to modify the Pre-trial Order, and in Paragraph IX of the Pre-trial Order Re: Cross-Claims, it is stated specifically that United Air Lines contends that it is entitled either to contribution or to indemnity.

Before reaching the gravamen of the question of indemnity or contribution, three preliminary matters should be noted:

First — By Paragraph III of the Pre-trial Order Re: Cross-claims, the government reserved its ground of lack of jurisdiction of the court under 28 U.S. C.A. § 2680. The question of jurisdiction over the United States has heretofore been disposed of by this Court in holding that this Court has jurisdiction and that under the facts in the case the United States is not exempt by reason of the so-called discretionary function statute. 28 U.S.C.A. § 2680(a).

Second — United Air Lines asserts that this Court should withhold any decision on the Cross-claims of the parties until such time as one or the other has actually paid out money to some or to all of the plaintiffs, and also that this Court withhold decision on the Crossclaims until final judgment in the Delaware case which involved only hull damage between the United States and United Air Lines. It may be that, technically, neither party would be entitled to a judgment on its cross-claim for indemnity until money has actually been paid out, but in this case the issues of fact and law on the respective cross-claims of the two defendants are as ripe for decision now as they ever will be, and disposition will not affect, or be affected by, the entry of a judgment thereon, when that time comes.

First of all, the case is unusual in its nature.

There are in fact 24 death cases resulting from a collision on April 21, 1958, between a United States Military Jet and a United Air Lines Airliner.

In each of the cases there was involved, of course, the issue of liability and of damages. Counsel indicated that the issue of liability would be protracted. (It actually took just over 15 weeks.) This Court consolidated the cases for trial to one jury on the issue of liability, with trial to be had to separate juries on the issue of damages, from which order the United Air Lines appealed, resulting in a holding by the Appellate Court 9 Cir., 286 F.2d 302, cert. den. 366 U.S. 924, 81 S.Ct. 1352, 6 L.Ed.2d 384 that the issue of liability and damages must be tried to the same jury. The intolerable delay and expense to the litigants which would result from trying and re-trying the issue of liability 24 times before 24 separate juries, with possible conflicting verdicts, convinced the Court that here, if ever, the truth of the adage "Justice delayed is justice denied" must be given weight in adjudicating as promptly as possible the claims resulting from the deaths of some 40 passengers, in an airplane, more than four years ago, 24 of which, involving some 70 relatives of the decedents, including many children, are before this court as plaintiffs in interest. Accordingly, the 24 cases were consolidated for all purposes to be tried to one jury, with the issue of liability tried first for a verdict as to United Air Lines, and a finding by the Court as to the United States, which would be applicable to all cases, and then each case tried to the same jury on the question of damages.

The trial began February 6, 1962.

Trial to the Court as to the liability of the United States was had on the evidence produced before the jury. And the two defendants stipulated that trial be had to the Court as to the respective cross-claims on the evidence produced before the jury on the question of liability. The jury verdict on liability as to United Air Lines was returned on May 23, 1962, and the Court found liability as to the United States. Since then, the Court has proceeded continuously with the trial of the several cases as to damages, and is still in that process with several more to be tried on the issue of damages. Judgments, a matter of mere formality as to United Air Lines, have not been entered on the verdicts or the finding of liability as to the United States, by specific direction of the Court because it has been felt, up to this time, that it would be better to wait until all of the cases are tried before judgments are entered so that there will be a uniform time for commencement of time for appeal and a uniform time applicable to motions for new trial.

The matter of the liability of the defendants, as noted, consumed some 15 weeks before the jury, the plaintiffs' case taking less than a week, so that the remaining time, except for the conference on instructions and the argument, was consumed by the two defendants, each principally to the end of exculpating itself and inculpating the other, with plaintiff counsel cross-examining the witnesses of both defendants. It was extensively argued and briefed.

This Court has no way of knowing what evidence was before the Court in the Delaware case. It is the duty of this Court, as the trier of the facts between Cross-claimants, to decide this case on the respective cross-claims on the evidence which was before it, which consisted of not just depositions, but of many live witnesses and exhaustive examination and cross-examination by all parties concerned.

To follow the suggestion of United Air Lines that the decision be delayed until after such time as money is actually paid out or until final judgment¹ in the Delaware case would be for this Court to indulge in a crass indifference to the rights of the parties by compelling them to wait, not only until all of the cases are tried to this jury, but to wait until after the long processes of appeal are exhausted. Moreover, the facts are still fresh in the mind of the Judge; the questions of fact and law are ready for decision, and I shall proceed to decide them,² withholding entry of money judgments on the plaintiffs' cases until further order of the court.

The third preliminary matter comes into the file in a rather unusual way. It is in the form of a letter from United Air Lines' counsel in Delaware to local United Air Lines' counsel of record in this case, and gets into the file by being attached to an affidavit of local counsel that he received it. It should be stricken as not being in compliance with Local Rules, either as to form or as not being signed by a member of the Bar of this court. See also: F.R.Civ.P. 7, 11, 28 U.S.C.A.. But this Court has nevertheless considered the points raised in said "letter," and finds no merit in any contention therein made.

I come now to the questions of indemnity and contribution.

They are separate questions.

I shall treat indemnity first.

Both are matters of substantive law and not procedural, hence the lex loci (Nevada) prevails, and not the lex fori (California).

There appears to be no Nevada statute and there are no Nevada cases on indemnity which even remotely approach the facts in this case.

The law of Nevada does not recognize the doctrine of comparative negligence between joint tort-feasors. Wells v. Shoemake (1947) 64 Nev. 57, 177 P.2d 451 at 458.

Nevada, by Section 1.030 of the Nevada Revised Statutes (1957), adopts the common law when not in conflict with the Nevada Constitution and ...