Wiener v. United Air Lines

• Decision Date: 04 December 1964
• Docket Number: 1041-58-PH,361-59-PH,970-58-PH,No. 469-58-PH,1086-58-PH,62-1601-PH,64-59-PH,30-59-PH,369-59-PH,62-1602-PH,309-59-PH,288-59-PH,76-59-PH,1112-58-PH,355-59-PH,281-60-PH,923-58-PH,1040-58-PH,29-59-PH,1042-58-PH,310-59-PH,62-1603-PH,469-58-PH
• Citation: 237 F. Supp. 90
• Court: U.S. District Court — Southern District of California
• Parties: Janice WIENER et al., Plaintiffs, v. UNITED AIR LINES et al., Defendants.

237 F. Supp. 90

Janice WIENER et al., Plaintiffs, v. UNITED AIR LINES et al., Defendants.

Nos. 469-58-PH, 923-58-PH, 970-58-PH, 1040-58-PH, 1041-58-PH, 1042-58-PH, 1086-58-PH, 1112-58-PH, 29-59-PH, 30-59-PH, 64-59-PH, 76-59-PH, 288-59-PH, 309-59-PH, 310-59-PH, 361-59-PH, 355-59-PH, 369-59-PH, 281-60-PH, 62-1601-PH, 62-1602-PH, 62-1603-PH, 62-1604-PH, 62-1605-PH.

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

December 4, 1964.

Belcher, Henzie & Biegenzahn, Frank B. Belcher, Los Angeles, Cal., for Ruth E. Simmons and others.

Johnson & Ladenberger, Robert G. Johnson, Los Angeles, Cal., for Martha Kallenbough.

Jack Dunaway, Hollywood, Cal., for Leona Mae Petrie.

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

Belli, Ashe & Gerry, Los Angeles, Cal., for Faith C. Paris.

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

Tuttle, Tuttle & Taylor, John D. Determan, Los Angeles, Cal., William A. Norris, Francis J. Garvey, Covina, Cal., for Helen A. Friedel.

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

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

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

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

Oliver, Good & Sloan, Richard L. Oliver, Los Angeles, Cal., for Max Kaufman and others.

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

Collins & Clements, Barrick, Poole & Olson, John Poole, Pasadena, Cal., for Chas. L. Rachford.

Harvey Erickson, Spokane, Wash., Frank Garvey, Covina, Cal., for Lelia R. Pebles.

Gladys Towles Root, Richard McLeod, John C. Gregory, Los Angeles, Cal., for Dorothy M. Weil.

George S. Pratt, Bertrand Rhine, Los Angeles, Cal., for Inez O'Brien Kay.

Loton Wells, San Francisco, Cal., for State Compensation Insurance Fund.

Margolis & Johnson, for Catherine Nollenberger and others.

Ross & O'Connor, Omaha, Neb., for Mary E. Darmody.

Joseph W. Pierce, Glendale, Cal., for Great American Ins. Co.

Donald A. Fareed, Michael I. Greer, Milan Dostal, Donald J. Merriman, Asst. U. S. Attys., for United States.

Chase, Rotchford, Downen & Drukker, Hugh B. Rotchford, James J. McCarthy, Otto Kaus, Los Angeles, Cal., for United Air Lines.

HALL, District Judge.

It having appeared that it was expected that the defendant United Air Lines would shortly deposit in court sufficient money to satisfy the separate judgments against it in each of the above-numbered cases, the Court, of its own motion, on October 23, 1964, directed an Order to all counsel in said cases that they set forth their respective positions on six questions, hereinafter appearing.

Counsel for all parties have now complied with that Order, and United Air Lines, on November 13, 1964, made a deposit in court of the total principal, interest and costs to that date, but erroneously calculated the rate of interest at six per cent. The interest has now been calculated at the legal rate of seven per cent to December 9, 1964, and the Court is advised that United Air Lines will, on that date, deposit the difference in court, and mail to each counsel a statement of its calculations so that if they have any objections thereto, they may assert them by filing same with the Clerk, and serving same on United Air Lines.

In the Paris case (No. 62-1603-PH) and in the Rachford case (No. 310-59-PH) plaintiffs' counsel are of the view that distribution should be controlled by the law of California which places discretion in the Trial Court to make distribution under California CCP § 377, which distribution usually results in about one-half or more being distributed to the widow, and the remainder divided between the remaining heirs.

All other counsel expressed the view that the Nevada law is controlling in the determination of the division and distribution of the proceeds of the judgments.

In most of the cases, the widows waived any right they might have under California law, and consented that the distribution be made in equal shares between themselves and their children as provided by the Nevada statutes.

In the cases where all of those who are entitled to participate in the judgments are adults, no adjudication will be necessary if the parties agree as to distribution. If they do agree, they will prepare a Petition for Distribution, Judgment, and Satisfaction of Judgment, all as more specifically hereinafter set out.

In all other cases where there are minors, an adjudication by this court is necessary, and the matters concerned with the distribution are now posed for judicial decision.

No further hearings are necessary in view of the conclusions herein reached, and no special representatives are required for the minors in view of the fact that the widows are the only ones sacrificing anything by their waivers in favor of the minors under the Nevada law.

The six questions and my categorical answers thereto follow:

1 — Does the Nevada or the California law or some other State (domicile) law apply in determining the division and distribution of these funds?

Answer — The Nevada law applies. (See Discussion which follows).

2 — Does this court (as opposed to an appropriate State court) have jurisdiction and power to determine the division and distribution of these funds and of any other funds that may be collected in the future toward satisfaction of any of the final judgments entered herein?

Answer — This court has jurisdiction and the duty to make such determination under the Nevada law. (See Discussion which follows).

3 — If the answer to Question 2 above is negative, what law of what State is applicable?

Answer — This question is answered by the answer to Question No. 2.

4 — What is the proper division and distribution of these funds in your case? Prepare two tabular calculations: (1) based on the assumption the Nevada law is applicable; and (2) based on the assumption the California or other appropriate State law governs.

Answer — This will have to be determined in each case separately.

5 — What effect will the earned interest and attorneys' fees have on the computations made in response to Question No. 4 above?

Answer—The attorneys' fees are to be calculated on the principal and the earned interest to date of payment. Price v. United States (D.C.Va. 1961) 195 F.Supp. 203.

6 — What effect does the limitation on attorneys' fees under Title 28, U.S.Code, Section 2678, have on the question of indemnity as determined by the Ninth Circuit in United Airlines Inc., v. Wiener (1964), 9 Cir., 335 F.2d 379?

Answer — The limitation on attorneys' fees under 28 U.S.C. 2678 has no effect on the limitation of attorneys' fees allowable on the judgments against United Air Lines, because the matter of indemnity is strictly between United Air Lines and the United States, and plaintiffs are not concerned therein. No authorities were cited and none have been found.

DISCUSSION

The right to recover for wrongful death is not a common law right, but is dependent upon statute. There being no Federal Wrongful Death Statute, resort must be had to the applicable State Statute.

All of the Complaints in the above cases, except one¹ alleged the right to recover under the Nevada Statute, and all of the cases were tried, the jury instructed, verdicts returned, and Judgments entered under the Nevada Statute.

Under the Wrongful Death Statute of California, CCP § 377, the moneys recovered by a judgment in a wrongful death case do not become part of the estate and are not distributable according to the laws of succession. Estate of Riccomi (1921) 185 Cal. 458, 463, 197 P. 97, 14 A.L.R. 509. Such funds are distributable in a separate proceeding, for which purpose, the court retains jurisdiction. Watkins v. Nutting (1941) 17 Cal.2d 490-498, 110 P. 2d 384. The rule is the same in the United States District Court. Garrett v. McRee (10 Cir. 1953) 201 F.2d 250, 253; Arizona Lead Mines v. Sullivan (D.C.Ida.1943) 3 F.R.D. 135, 139; Stark v. Chicago etc. Railway (7 Cir. 1953) 203 F.2d 786; Local Rule 22.

Under the law of Nevada, as it stood on April 21, 1958, the date of the accident (Nevada Rev.St. 41.090²), the proceeds of such judgment are not liable for debt, and hence not part of the estate, and the proceeds are not distributable under Nevada laws of succession. But, unlike the California law, distribution is fixed in stated proportions among the next of kin, and if no next of kin, then by Nevada Rules of succession, as in personal property. Thus, the difference between the California Statute and the Nevada Statute lies in the fact that in California the Court is under the duty to make inquiry and distribute the proceeds in its discretion; whereas in Nevada, there is no discretion in the court, and distribution must be made by the formula specifically set forth in the Statute.

This brings into consideration the California Conflict of Laws Rule, or better stated, the Choice of Law Rule in California, with regard to distribution of the judgments in these wrongful death cases.³ No California case is found which deals specifically with California choice of law on the matter of distribution of funds in wrongful death cases. But California has well-settled general rules as to the choice of law in wrongful death cases. In Zinn v. Ex-Cell-O Corp. (1957) 148 C.A.2d 56, p. 79, 306 P.2d 1017, p. 1031, the Court said:

"As said in Loranger v. Nadeau, 215 Cal. 362, 363, 366, 10 P.2d 63, 65, 84 A.L.R. 1264: `It is the settled law in the United States that an action in tort is governed by the law of the jurisdiction where the tort was committed, and, as it is a transitory action, it may be maintained in any jurisdiction where the defendant may be found. It is the general rule in tort actions that the court will, if it has jurisdiction of the necessary parties and can do substantial justice between them in

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