Motion to Dismiss — Southeastern Aviation, Inc. v. Hurd

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INDEX TO MOTION TO DISMISS AND

BRIEF IN SUPPORT THEREOF.

Contents:

| Motion to Dismiss 5 Appeal.

~ Surisdiction | LOVED POLI SAE ED

: Questions Presented. <n

NS oc

Argument __ Pant ht Rte SA nen Ae

(1) No Substantial Federal Question

' (2) Question of. Federal Constitutionality

_ of. Tennessee Statutes Not* Raised In

‘State Courts - x is BAG

ON

, \, Table of Cases and Authorities Cited.

\

ns v. Baker, 360 U.S. 287, 3 L. Ed. od 1234,

79 S. Ct. 1157 -

Charles Dowd Box Co, Ine. v. John F. Courtney .

et al (Feb. 19, 1962), ___U. S.

7 L. Ed. 2d 423, 82'S. Ct.

Int. Union U. A. A. and A. I. W. v. Russell, 356

U.S. 634, 2 L. Ed. 2d 1030 -

Richards v. United States, (Februaty 26, 1962),

US TL. Ed. 2 423,

82 8. Ct__ tant Pianta tactic te:

(Over)

13

14.

on oa

‘Rohr Aircraft Corp. .v..County of San Diego, pees

362 U.S. 628, 4 L. Ed. 2d 1002,.80 S. Ct. 1050 poipencltedinnens “A

- San Diego Bldg. Trades Council v. Gérmon,

359 U.S. 236, 243-244, 3 L. Ed. 2nd 775, 782-12 :

United Construction’ Workers v. Laburnum

Construction Corp., 347 U.S. 656, 98 L. Ed. 1025 12, 13

’. Federal Statutes Cited.

Rhee Ol ae

Weee ieee Le

Nese eee a lle

49 U.S.C. § 1421 (a) IS TSP SAT OT ‘10

- Statutes of the State of Tennessee

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Tennessee Code Annotated, Sec. 42-106 1, 4, 13

--Tennessee Code Annotated, ‘Sec. 42-107 1, 4, 13

Civil Air Regulations of the Federal Aviation Agency.

: ; shige i : ao, <

Section 40.406-2(c),-Civil Aeronautics Manual 40... 10

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IN THE

yh SUPREME COURT OF THE UNITED STATES.

| OCTOBER ye 196 |

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” SOUTHEASTERN AVIATION, .INC.,

‘dbia SOUTHEAST AIRLINES,

A. H. HURD, Individually and as Administrator of the

Estate of Phyllis Eloise. Hurd Halstead, Deceased, —

. - On Appeal from the Supreme Court of Tennessee.

:

; ‘

4 , : - sO

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MOTION TO DISMISS APPEAL |

The Appellee respectfully. moves the Court to dismiss

the appeal herein upon the following grounds: }

1. This appeal is not within the jurisdiction of this

Court because not ‘taken in conformity to ‘statute.

5 2.. This appeal dope not- ‘Present a substantial federal

question. 3 ;

“3. ‘The federal question, as - the constitutionality of

Sections 42-106 and 42-107 of Tennessee Code Annotated

o ’

sought to be reviewed, was not timely or properly: raised,

ee

HOWARD E. WILSON,.

/ 230 Commerce Street,

Kingsport, Tennessee,

- PRESTON H. TAYLOR,

211 Broad Street

Kingsport, Tennessee,

Counsel for Appellee.

IN THE ,

SUPREME COURT OF THE UNITED STATES. .

OCTOBER TERM, 1961.

SOUTHEASTERN AVIATION, INC.,

d/b/a SOUTHEAST AIRLINES,

; Appellant,

vs. .

A. H. HURD, Individually and as Administrator of the

Estate of Phyllis Eloise Hurd Halstead, Deceased,

Appellee. |

Sa Rypesl teem the Deguettg Const ol Tennesnes.

7S

BRIEF IN SUPPORT OF MOTION: °

TO DISMISS APPEAL.

JURISDICTION.

/ >

On March 8, 1962, a final judgrnent was entered by the

Supreme Court of Tennessee against the appellant and in

favor of the appellee for damages for Yne wrongful death

of appellee's intestate who was killed ie airplane crash

that occurred in Tennessee on January’8, 1959. On and

¢ te

—_ wn

prior to the date of this crash, appellant was an intrastate

air carrier, with its operations confined to the State of

. The aforesaid’ judgment of the Supreme Court

of Tennessee is based upon a finding that. appellant was

guilty of negligence under the common law of Tennessee

which proximately caused the wrongful death of appellee’s

SRESEARS UO WEED Sand PapINy PaSENGH en ene 46 AEye

lant’s intrastate flights. 5

Aecitias ton extetal to Gin Cok, ed tunis, fo

its Jurisdictional Statement, that the jurisdiction of this ~

Court to review this judgment of the Tennessee Supreme

Court “by direct appeal is conferred by Title 28, U.S.C.

§ 1257. (2)”.° See Jurisdictional Statement, page 3).

Title 28 U.S.C. § 1257 (2) provides as | foilows:

-Picial judgments or decrees rendered by the hhigh-

est Court of a state in which a decision could be had,

a ee a ee ee ee:

“(2) Bygpppeal, where is.drawn in. question the

validity of a statute of any state on the ground of its —

being repugnant to thie Constitution, treaties or laws

of the United States, and the decision is in favor of its

_ Validity.”

Appellant apparently predicates its right to appeal to

this Court on thé ground that the Tennessee Supreme

Court held that Sections 42-106 and 42-107 of Tennessee

Code Annotated were valid under the Federal Constitution,

(See Jurisdictional Statement, page 12; and Appendix, page

28a). These two sections of tlie Tennessee Code are the

only Tennessee statutes referred to by appellant.

No reference ig made in: the opinion of the Supreme

Court of Tennessee or in the judgment based thereon to

Sections 42-106 and 42-107 of Tennessee Code Annotated.

‘These Tennessee statutes were not relied on by the appellee —

=

in support of this action, and were never specifically re-

‘ferred to by’ the parties or ‘the Tennessee Courts. It is

clear, wé submit, from the opinion of the Supreme Court

of Tennessee, (Appendix to Jurisdictional Statement, Page

4a-8a), that the federal constitutionality of these two

Tennessee statutes has never been drawn in question and

has not been passed:«upon by that court.

Since the federal constitutionality of these two statutes °

of Tennessee was never “drawn in question” or passed

upon in the state courts of Tennessee, we respectfully sub-

mit that this Court lacks jurisdiction of this appeal under

28 USC. § 1257 (2),

; Appellee’s contentiog, that this Court lacks jurisdiction

under 28 U.S.C. § 1257 (2) of cases in which the federal

constitutionality of a state statute was never “drawn in

o

question” or passed upon in the state courts is en

by the following cases:

Anonymous. v. Baker, 360 US 287, 3 L ed 2d 1234,

_ 79 S Ct 1157; and Rohr Aircraft Corp. v. County’ of San —

Diego, 362 US 628, 4 L ed 1002, 80 S Ct’ 1050.

QUESTIONS PRESENTED.

Appellee respectfully submits that the following is a

_ Statement of the only’ question presented by this appeal:

/ ‘

HAS THE FEDERAL AVIATION ACT OF 1958 OCCU-

PIED THE AVIATION FIELD SO.COMPLETELY THAT,

BY IMPLICATION, THE STATE COURTS ARE EX-

CLUDED FROM ENTERTAINING ACTIONS TO RECOVER

DAMAGES FOR THE WRONGFUL DEATH OF A. PAS-

SENGER KILLED IN AN AIRPLANE CRASH PROXI-

' MATELY CAUSED BY AN INTRASTATE AIR CARRIER’S

NEGLIGENCE AS DETERMINED BY THE COMMON LAW

OF THE STATE IN WHICH THE TORT OCCURRED?

STATEMENT.

. :

Appellee desires to correct certain omissions in the

Statement made by Appellant in its Jurisdictional State-

ment. : c

Appellant asserts that “—the Supreme Court. of .Ten-

nessee held that the Federal Aviation Act of 1958 did not

pre-empt the field—” and “—that the general scheme of

regulation of the air space and the operation of aircraft

therein as set forth.in the Federal Aviation Act has -left

‘room for each state to provide rules, regulations and

standards which will govern within the-respective states -

the operation of aircraft, provided the state rules and

regulations are not inconsistent with the purpose of the

Federal Act.” (See Jurisdictional Statement, pp.11-12).

We cannot agree with this statement by appellant. The

Supreme Court of Tennessee expressly held that the pur-

pose of the Federal Aviation Act was to take control of

the air space of the United States, and also to provide for

the establishment of rules, regulations and minimum

standards to promote the efficiency and safety of air navi-

gation. (See Opinion of Supreme Court of Tennessee,

Appendix to Jurisdictional Statement, page 5a).

Appellant's jurisdictional Statement (pp. 10-11) also

contains only a partial quotation of the Tennessee Supreme

Court’s opinion degling with the question of whether or

not the Federal Aviation Act of 1958 pre-empted the field

so that state courts have no jurisdiction to try wrongful

death actions growing out of airplane crashes. Appellant’s

quotation fails to show the omission of some six paragraphs

of the Court’s opinion between the first sentence and the

remaining sentences of the last quoted paragraph of the

Tennessee Supreme Court Opinion as set forth on page 11

of appellant’s Jurisdictional Statement. The omitted por-

int

tions of the Tennessee Supreme Court's Opinion begin with

. the second sentence of the following quotation:

“It seems clear this Act does not exclude state law

not inconsistent with-its purpose. Its language above

quoted (sec. 1508 (a) is the same as that of the Civil

_, Aeronautics Act of 1938, 49 U.S.C.A., section 176 (a),

which was held’not to exclude consistent state law—

a law of Nebraska taxing aircraft used interstate in ©

landing on and departing from airports within that

state. Braniff Airways v. Nebraska State Board, 347 _

U.S. 590, 98 L. Ed. -970. . .

‘ “here, the Court said that ‘these Federal Acts (the

(Air Commerce Act’ of 1926 and the Civil Aeronautics

Act of 1938) are bottomed on the commerce power of

Congress, not on national ownership of the navigable

airspace, as distinguished from sovereignty’, and that

‘federal power over navigable airspace, like federal power 4

over navigable streams, ‘does not prevent state, action

consistent with that power.’ To the same effect: Huron

Portland Cement Co. v. Detroit (1960), 362 U.S. 440,

4 L. Ed. 2d 852.

“The~conclusion that the Federal Aviation Act of

1958 does not exclude consistent state law, or alter

existing remedies under state’ law, seems to — be

strengthened by the words of the savings clause of that

Act (U.S.C.A., sec, 1506), which are as- follows: ‘Nothing

contained in this chapter shall in any way abridge or

alter the remedies now existing at compnon law or by

statute, but the provisions of this cha are in addi-

tion to such remediés.’ ;

“The Court of Appeals put its decision upon this

savings clause, citing Erie R. Co. v. Tompkins, 82 L. Ed.

1188, 304 U.S. 64, 114 A.L.R. 1487, to the effect that

‘there is no federal ‘general common law’, and holding -

,

that this saving of ‘the remedies now existing at comnion.

law or by statute’ refers to the common law and statutes

of the several states. Learned counsel for- petitioner in-

sists that this reference is not to state law, but to federal

law. We think this argument is.unsound. Porter -v.

Southeastern Aviation, Inc. (1961), #91 Fed. Supp. 42, 43.

“The language of this savings flause, above quoted,

is the same as that of the Intefstate Commerce Act

(49 U.S.C.A., sec. 22), which has been held to refer to

the remedies under the common law and statutes of -

the several states and to preserve their ‘general and con-

current jurisdiction’ in suits for damages against an

interstate r. Pennsylvania R. Co. v. Puritan Coal

Mining Co., 237 U.S. 121, 130, 59 L. Ed. 867, 872; Pennsy!-

vania R. Co/ v. Sonman S.C. Co., 242 U.S. 120, 61 L. Ed.

188; Centfal New England Ry. Co. v. Boston & Albany

R. Corp., 279 U.S. 415, 420,78 L. Ed. 770, 775.

_ “The Federal Aviation Act of 1958 appears to be’

merely an administrative measure, limited to the regu-

lation of the operation of aircraft in the interest of

public safety. “It does not touch the traditional area —

of the law of torts or private right, and does not give

any remedy for an injury to such right, such as an

injury to the person of a passenger caused by an air

carrier’s negligence in the operation of its plane.

“Petitioner likens this Act to the Labor Manage-

ment Relations Act which pre-empts the field and ex-

cludes state law in labor disputes. But since the latter

affords no remedy for recovery of damages caused by a .

tort, state courts have jurisdiction in such a case to

award damages according to ‘its traditional! low of torts.’

United Construction Workers v. Laburnum Construction

Corp., 347 U.S. 656, 98 L. Ed. 1025; Int. Union, U.A.A. &

“ ALW. v. Russell, 356 U.S. 634, 2 L. Ed. 2d 1030; ef. San

- hb

Diego Bidg. Trades Council v. Garmon, 359 U.S: 236,

243-244, 3 L. Ed. 2d 775, 782, with Charles Dowd Box Co.,

Inc. v. John F. Courtney et al (Feb. 19, 1962), ‘US..

L. Ed. ad » :

; The Supreme Court of Tennessee, after referring to the

df fact that appellee’s declaration “charged common law

negligence”, and was “a suit in tort upon a right created

_ by the law of the state”, (See appellant's sept. page 7a),

also said:

_. “Nor did it (appellee's declarations” ‘ose its char-.

acter as an action’ for negligence under state law

because it also averred a violatiors of regulations of the

Civil Aeronautics Board. Such averment: merely added

another ground of negligence for recovery; At did. not -

raise an issue Of federal iaw or invoke a féderal right

which would be supported’ if such law were given one

construction or effect and defeated if given another.

Dennis ¥. Southeastern Aviation, Inc., 176 Fed. Supp.

* §42, 543; Pah American P. Corp. v. Superior Court, —

' US. ,6L. Ed. 2d 584, 589-591, and cases there cited.

; “It was for this reason that this case was held not

removable, not being a case under Constitution or the

laws of the United States, or pf diversity of citizenship. |

The same conclusion was reached by the United States

‘District Courts in two other similar cases growing out

of the same accident. Definis v. Southeastern Aviation,

Inc., supra, 176 Fed. Supp. 542; Porter v. Southeastern

“Aviation, Inc., supra, 191 Fed. Supp. 42.”

The Supreme Court of Tennessee (see appellant's

mea Ca page 19a) 7 held: ae :

\ ;

“A common carrier of passengers for ire is not an~

a, Ee

- Operation of the plane. The carrier must exercise such

care not only in respect of the operation, but also of

‘the equipment and. maintenance of the plane. 6 Am.

' Jur., Aviation, section 51; Knoxville-Cab Co. v. Miller,

176 Tenn. 88, 138 S:W. 2d 428. We find nothing to the

contrary of this common law rule in the Federal Avia-

tion Act of 1958. That Act recognizes that a duty rests

upon air carriers ‘to perform their services with the

highest possible degree of safety’ (49 U.S.C.A. sec. 1421).”

-- ara

We also respectfully disagree with appeHant’s conten-

tion that “there is a direct conflict between the laws of

" Tennessee, upheld as constitutional and applied by the

Supreme Court of Tennessee, and the rules and. regulations

of the Federal Aviation Agency here involved” (Jurisdic-

tional Statement, page 13). Appellant then refers to the ~

civil air regulations (14CFR 40.232 (b); Appendix, p. 54a), ~

permitting as a minimum standard of safety the use of

only one automatic direction finder (ADF).

The Federal Aviation Act of 1958 expressly provides that

the civil air regulations issued by the Administrator there-

under are “minimum standards” only. 49 USC § 1421 (a).

Furthermore, the civil air regulations require the use of

two ADFs under certain circumstances. Section 40.406-2(c)-,

page 35 of Civil Aeronautics Manual 40, (Part of Exhibit 17)

permits the use of certain ground navigational! facilities

“provided the aircraft is equipped with dual automatic ‘

direction finder receiver—" (Emphasis supplied).

Also, under the evidence introduced in this case and as

found by the Tennessee Supreme Court, appellant’s illfated

plane “had only one ‘ADF, and it was not. working—”

(Opinion ,of Tennessee Supreme Court, Appendix, p.- 18a).

This was in direct violation of the civil air regulations

relied on by appellant.

—JZli— .°‘*

ARGUMENT.

Assuming for purposes of argument that this Court has

jurisdiction of this appeal under 28 U.S.C. § 1257 (2), we

nevertheless respectfully submit that the appeal should be

dismissed for the reasons set forth in Grounds 2 and 3 of

‘Appellee’s motion to dismiss.

We also submit that if ‘he appeal is treated as a petition

for certiorari under 28 U.S.C. § 2103, then the petition for

certiorari should be denied because:

_ (1). Appellant’s contention that the doctrine of federal

pre-emption precludes state courts from awarding damages

according to “its.traditional law of torts” in cases where

the federal statute provides no remedy for tortious conduct

has been settled to the contrary by this Court; and

(2) The Supreme Court of Tennessee has decided this

federal question in a way which is in accord with the appli-

cable decisions of this Court.

-1. No Substantial Federal Question.

Appellee’s action ‘is based on common law negligence.

pee It is an action founded on the “traditional law of torts”.

_ The Federal Aviation Act of 1958 does not create any

right of action for wrongful death caused by tortious con-

duct.of an air carrier in the operation of its planes.

Appellee contends that it is settled law that the doctrine

of federal pre-emption does not preclude state courts from."

awarding damages according to “its traditional law of

torts” iri cases where the federal statute provides no civil

remedy for tortious conduct.

This contention of appellee is supported by - follow-

ing cases:

7 aw 12

United Construction Workers v. Laburnum Construction

Corp., 347 U.S. 656, 98 L. Ed. 1025; Int. Union 0.4.A. &

A.LW. v. Russell, 356, U.S. 634,.2 L., Ed. 2d 1030; cf. San

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 243-244,

3 L. Ed. 2d 775, 782, with Charles Dowd Box Co., Inc. v.

John F. Courtney et al. (Feb. 19, 1068)... -USB...;......4

Ed. 2d 423; 82 S: Ct.

° 5 : *

See also Richards v. United States, (February 26, 1962),

= EE , 7L Ed 2d 492, 82 S Ct. , which

involved wrongful death actions under the Federal Tort .

Claims Act for airplane passengers killed in a crash occur- -.

ring ‘in Missouri by reason of alleged acts of negligence

' occurring in Oklahoma, in which case this Court applied

the whole law of the state where the acts of negligence took

place, including such state’s conflict of laws rules.

_ The Federal Tort Claims Act provides that the liability

of the United States in such cases shall be “in accordance

with the law of the place where the act or omission oc-

curred.” (28 USC § 1346 (b) ). : ;

We believe that this Court will take judicial notice of

the large number of tort actions which have been filed

against the United States under the Federal Tort Claims

Act growing out of airplane crashes. These cases apply

the law of the state where the act or omission occurred.

(Richards v. United States, supra).

If appellant’s contention were upheld, the result’ would

be that tort actions between’ private individuals’ growing.

out of airplane crashes would be governed by federal com- |

‘mon law while such actions against the United States

would be governed by the appropriate state common law.

Furthermore, such tort actions against the-United States

and a private defendant, as co-defendants, would produce

_the unusual result of applying federal common law to the:

e

mii

private defendant and the appropriate «state common law.

‘to the United’ States.

Appellee, ° therefore, respectfully submits that this

‘appeal should be dismissed\ because it does not present a

substantial federal question,

If the appeal is treated as a petition for certiorari under

28 U.S:C. § 2103, it is submitted that there are no special

or important reasons for granting the. petition, and that,

in the exercise of this Court’s discretién, the petition should

be denied. ta ee

‘In support of this contention, appellee relies ¢ on the facts

. and the authorities referred above under the heading of

“Jurisdiction”, and also in this Section 1 of the Argument.

For these reasoris, we submit that the Supreme Court of

Tennessee, on the, question of pre-emption, followed the law

as settled by prior decisions of this Court, or, that the

state court’s decision.on this question was in accord with

applicable decisions of this Court. United -Construction

Workers vaLaburnum Construction Coe. supra. -

2. QUESTION OF FEDERAL CONSTITUTIONALITY

. OF TENNESSEE STATUTES NOT RAISED - IN’

STATE COURTS. , i

Appellee has pointed ‘at above, in his statement nde

the heading of “Jurisdiction”, that the two Sections of

‘Tennessee Code Annotated, (T.C.A. ‘42-106 and 42- 10%,

which appellant now contends violates the federal constitu- \

tion, were not relied on by appellee and were not referred >»,

to by the Tennessee Courts. As shown by the opinion of

the Tennessee Supreme Court (Appendix to Jurisdictional.

Statement, pp. 7a-8a), appellee’s pleadings merely charged

common law negligence and did not charge negligence |

based upon the alleged violation of any statute of Tennessee.

Appellee merely alleged that appellant was guilty of negli-

2 :

\

,

Db 4

gence by failing to exercise that degree of care required of

carriers under the common ‘law of Tennessee. The federal

-constitutionality. of the two sections of the Tennessee Code

Annotated was never drawn in question because appellee

' was relying on the Tennessee. common law rule that the

, law of the place where a tort (both negligence and injury)

-is committed will govern the substantive rights of the

oe . p=

? 2

CONCLUSION.

Appellee respectfully submits that appellant’s appeal

should be dismissed, and if the appeal is treated.as a

petition for certiorari, such petition s should be denied.

co AEP submitted, |

pant E. WILSON, |

‘ 230 Commerce Street,

Kingsport, Tennessee,

_ PRESTON H. TAYLOR,

211 Broad Street,

' Kingsport, Tennessee,

Counsel for Appellee.

‘WILSON, WORLEY & GAMBLE,

Kingsport, Tennessee,

Of Counsel.