Petition for Writ of Certiorari — Arber v. American Airlines, Inc.

Supreme Court brief1965

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‘ Office-Supreme Court, U.S.

es aes bubreme COURT. UB FIEED % 4.

in the of ' JOHN F. DAVIS, CLERK

Spree Court of the Rlited, wee | ,

Octoser TERM, 1965

AGL + ee a :

GABRIEL, ARBER ET AL.,

‘PLAINTIFFS, APPELLANTS,

‘ ‘V.

AMERICAN AIRLINES, : INC,,

DEFENDAN T, APPELLEE.

PETITION FOR A WRIT OF CERTIORARI.

. TO THE UNITED STATES COURT OF Cee

APPEALS FOR THE FIRST CIRCUIT

- Davp B. Karian

Attorney for Petitioners

89 State Street

Boston, Massachusetts

Blanchard Press, Inc., Boston, Mass. — Law Printers

ad ae, . .

‘TABLE OF CONTENTS. et

Nia Ppt ; 7 : “Page

“sPetition for Writ. of Certiorari <a SRUU AM rere See le

1 Quine Balpe22) 6 FG ee, pa

» IL. Jurisdiction ......... redial et alata wht bier gree = 2

Ti. Questions Presented 4.26. a. yee eee 2

IV. Reasons Relied Upon for: the Allowance of the |

ae ee Ree ER Ka eae reas ce BES oo Bs.

V. Statement of the Case ............. Peer eee ae: 3

VI. Argument !. 50.5.0 055...2.,. a PS GR ae wea i,

- VII. Conclusion ..... (ere pee Pre SG Sree egre n Orie es

" Appendix ax \: ae A

A. Judgment of the Court of Appeals~ OE epee - 13

: B. Judgment of.the District Court '.............. 14

C. Opinion of the Court of-Appeals ..... feperee ay

. TABLE OF Crrations

_Central Railroad. C6. v. Jules. s. Settnak Co., 258 FP. 2d _

“85 (1958), cert..den. 359 U.S. 913, 79 S.Ct. 588 . 8 «

Korte v. New York, N.H. d H.R. Co., 191 F.2d 86, seit :

den., 342 U.S. 868, 72.S.Ct. 108 (1951) ........ coe. a

ies v. Pittsburgh : ‘DesMoines Steel Co., 183 F.2d.

467 (1950) ..... COE as Gow ee SE SER ere rere Dan

K.L.M. v. Tuller, 292 F2a 775 (1961) . ‘Pes La

Paliner v. Hoff man, 318 U.S.-109, 63 S. Ct. 477 (1943). “9, i0 -

____——Pekelis v. Transcontinental & Western Air, Inc., 187

25 F.2d 122, cert. den., 341 U.S. 951, 71 S.Ct. 1020 (1951)

United States v. New York Foreign Trade sone Oper- -

« ators, 304 F: 2d 792 (1962) page Peg ele ees Eines RES 8

United States v. United Shoe Machinery Corporation,

» 89 F. Supp. 349 at page 352 (1950) pb Gade were 5.

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Tes Oe Table of Contents

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_ Morgan, The Law of Evidence, 1941-1945

. 59 Harv. L. Rey. 481, es before note 322

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Federal B Business Buty Statute, 28, U.S.C.A. 1732 .

Morgan, Admissions, 12 Wash. L. Rev. 181, 186 ./... i

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_ Suprene Court of the Ruited States

+ i

GABRIEL ARBER ETAL,

fo PLAINTIFFS, APPELLANTS,

A ERICAN AIRLINES, INC.,

DEFENDANT, APPELLEE.

PETITION FOR A WRIT OF CERTIORARI

__/ ‘$0 THE UNITED STATES COURT OF

—— FOR THE FIRST CIRCUIT

To the Honorable, the Chief Justice and the Associate.”

_ Justices of the Supreme Court of the United States:

Petitioners, Gabriel Arber, Paul Sriberg, Irving Bisen 4

and Fletcher C. Crandall who, for purposes of this Petition,

have consolidated’ their actions so they may be treated, as

one, respectfully pray that a Writ of Certiorari issue to

review the judgment of the Unitéd States Gourt of Appeals.

for the First Circuit (hereto appended and marked Ap- ©

pendix A) affirming the judgment of the United States

’ District Court for’ the District of. Massachusetts (hereto

—- and marked ——— ss &

ee 1965 its Nea hae ie

eae

"Opinion Below —

The opinion of the Court of. Appeals : for the First Cireait

is reported in 345 F.2d 130 and this opinion is hereto ap-. 2

- pended and marked Appendix C (R.A. pp. 79-83).

Jurisdiction ie

‘The judgment of the United States Court of Keiaiiie for

the First Circuit, here sought | to be reviewed was entered

on May 19, 1965 (R.A. p. 84).

The jurisdiction of this Court to review by writ of cer-

tiorari the judgment complained of is .conferred by 28

U.S.C.A. Sections 1254 (1) and 2101 (c). |

} No motion for hearing was sought in the Court of &

Questions Presented ;

1, Whether, i in an action by- passengers to recover Seni

* for personal i injuries sustained as a result of the negli-’

gent operation of an airplane, communications received

from the airlines directed to the passengers indicating

the cause of the disaster to be different from the position

taken by Respondent at the time of the trial, are ad-

missible. :

_ 2. Whether, in an action by passengers to recover Miitnaaie

for personal injuries sustained as a result of the negli-.

gent operation of .an airplane, communications received

‘from the airlines directed to the ‘p rs are ad-

-missible under the Federal Business Entry Statute.

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‘Reasons Relied Upon. for the Allowance of the Writ

“ -\There is ‘eubstantial conflict in the Courts of pete

‘ between the poungh of the First Circuit and the Second :

— ase,

- The decision of the court. below is in conflict with the

‘import of 28 U.S.C.A. 1732 commonly. referred to as the

_ Federal- Business Entry: Statute.

If allowed to stand, the decision below could jedpatdize

the obligations and a of commercial carriers to”

passengers for hire.

° a

ya vs ‘ Vv. sci Gea:

ey ie Statement of the Case

This‘ is a case involving the rights and obligations ae

_ commercial earriers and passengers for hire. The Peti- - °

i oe _ tioners’ actions were congolidated and tried together.

9 ~ ee September 14, 1960, the Petitioners. were passengers

aboard American Airlines, Flight number ‘362 which left

’ Boston, “Massachusetts at 8:00 A.M. for the eventual desti-

" nation of St. Louis, Missouri. While landing the -airplane-

at. LaGuardia Airport, New York City, New York, the

wheels of the landing gear struck a fixed barrier causing

_the aircraft to be thrown on its back and to careen down

the runway and burn, as a result of which extensive per-—

sonal injuries were sustained by the Petitioners.

The Petitioners alleged that the accident was caused by.

the negligence of the Respondent’ s agent, servant or ém-

y ployee. as well as res ipsa ‘loquitur. : ~The Respotident —

answered that: this plane was caused to come-to the ground

by reason of unexpected. weather and atmospheric con-

-ogditions . . (RB. 5, 10,.16, 22) and also that res ipsa loquitur

“did not apply because the movement of the Lacuadie was sub-

‘

_ject to the caution of persons other dian the Respondent’ ~

. : servants or agents. —~ : 9

“. (he cases were tried in the United States District Court

for the District of Massachusettsy and during the said’ trial,

| the Petitioners sought to introduce two communications,

| \ ee marked Plaintiffs’ Exhibit #17, for identification only,

» which .purports to be a-communication from ©. Re Smith,’

100 Park Avenue, New York 17, New York, which was sent

_ to the Petitioners by mail, and which serves to introduce

one Captain Thornton ‘Wagner, Test Pilot.for American

Airlines ; ; and Plaintiff ’s Exhibit #9, marked for identifi- .

_ eation only, which is a communieation on: American Airlines

stationery signed’ by .Thoraton, Wagner, and which alleges -

_ to identify the. cause: of the disaster. . The testimony indi-

cated that these communications had. been received in the

. mails by the petitioners. (R.A. pp. 38-39). The Trial Court

refused, to. allow these documents into evidence (R. 167, 168,

169, 170), and proper “excepti ions were taken at that time.

- The petitioners appealed the verdict of the jury: to the

—-Court-of-Appeals-for’the First’ Cirenit: The Court of Ap- ~

peals held that the district judge had not committed error

and affirmed the judgment of the district court (B.A. p. 84). _

_. The’ petitioners submit that the court below has errone-

ae gasly. affirmed the ri carenaaie of the os court.

‘ , .

2 & . .

‘@

a our aitveiadaine system of law, certain rules of evidenee

' |» must, of necessity, be promulgated in order to expedite

the effective administration of justice. The hearsay rule

was one such rule of evidence and was. designed to provide

a party: af opportunity: to cross-examine a declarant in

order to protect his interests and to focus direct attention

‘on the person making the statement in an effort to encour-

a 3 ie: Ee hss

dy Be | ‘ ee

ost

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age credibility by. reducing opportunity for untruths. Be-

*\. cause the hearsay rule, in many respects, was cumbersome ~

‘and burdensome, exceptions to the hearsay rule, both by.

pr tice and by ‘statute, developed in order to accomplish i

a more direct and. effective form of justice. .

It seems clear that in order to hol@ a person or artificial

: being. responsible. for.a declaration, it must be shown that

it'is his declaration. Whether one seeks to hold an indi-

vidual responsible for the aet of his agent, or whether the

corporation ‘is to be held responsible for the act .of its

employee is, based upon the legal doctrine of respondeat

superior. Therefare, if the statement is made within the

scope of the agent’s authority, the principal. is bound.

- Further, as was stated in the case of United States v.

United Shoe Machinery Corporation, 89 F. Supp. 349 at

page 352 (1950),"*'. ... if the principal expressly said,

either before or after the agent spoke, that he vouched

- for the agent’s statement or wanted action taken. on it,

then # is his statement ...’’ ‘‘Even ifvthe principal does

not expressly vouch for the agent’s statement, if he acts.

. or conducts his business i in such a way as to show by im-

plication that he adopted the statement, then such parts

of the statement as he acted upon are ‘his’.» And to that —

extent, the statement is receivable againgt«the principal as

an adoptive admission.’’ Morgan, The. of Evidence,

1941-1945, 59 Harv. L. Rev. 481, 559 before note 322; Mor-

. Admissions, 12 Wash. L. Rev. 181; 186.

ie 9 y Petitioners’ exhibit #17 (R. 47), marked for

identi cation only, is clearly identifiable as written by or

on behalf of the defendant, and certainly just as clearly

serves to introduce and adopt plaintiff’s exhibit #9 (R,45)

which was also marked for identification ‘only. Based upon

logic and {he foregoing authorities, it is submitted that the

documents should have beén admitted into evidence with

the jury passing on the weight to bé given to this evidence.

fay

—"

’ The exhibits were also admissible on the ground that the

defendant pleaded in its answer and also introduced evi-° ©

dence at trial (R. 28, 30, 34, 36), that weather was a factor

sin the happening of this disaster and the said exhibit

clearly negates this position. In fact, the said exhibit is in

accord with the Petitioners’ theory of liability at trial. The.

case which ‘is im point and relied upon by the Petitioners_is

' Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d

122, cert. den., 341 U.S. 951, 71 Ct. 1020 (1951) where an

action was brought for fnjuries and death arising out. of

- an airplane accident. The defendant investigated the crash

and then prepared certain reports. Plaintiff sought to .

introduce the.said reports into evidence ‘and the court said

that since the reports were inconsistent with the position

taken by the defendant at the trial, thie reports were ad-

‘missible, This is true even though parts of the said reports

were based upon hearsay and expressed opinions but the

court there indicated that this would go to their credibility

rather than to their admissibility. ~The court farther ‘stated

in the same case at page 129,

: “In the light of the circumstances, it would have been

only fair to require defendant to explain the incon-’

sistencies between these reports and its own position

at the trial, despite the lack of an opportunity for test-

- ing the declarants by cross examination and oath.’’

the. case at bar, the jury should have been given the

opportunity to observe the subject defendant’s communi-

_ cations because they serve to discredit the evidence offered

by the defendant during trial.

Another avenue of admissibiljty of the subject conimuni-.

cations open to the Petitioners is 28 U.S.C.A. 1732 com-

monly referred to as the arr on Business be! Statute .

_ which provides that:

‘‘(a). In any court of the United States and in any

court established by: Act of Congress, any writing or

. record, whether in-the form of an entry in a book or

otherwise, made as a memorandum or record of any

act, transaction, occurrence, or event, shall be admis-

sible as_evidence of such act, transaction, occurrence,

or event, if made in regular course of any business, —

_ and if it was the regular course of such business to |

make such memorandum or record at the time of such -

act, transaction, occurrence, or event or within a

reasonable time thereafter. ;

‘ “All hee circumstances of the making of such writing -

or record, including lack of personal knowledge by the

entrant or maker, may be Shown to affect its weight,

but such circumstances shall not affect its amas .

“8g “The term ‘“business”?, as-used-in this section i includes

business, profession, ORR and Y egiling of every

ne: aN hao

In the case of Maven: v; Pitsebuigh-Desktet oines Steel Co. i

183. F.2d 467. (1950), the plaintiff sought to introduce a

report of the Bureau of Mines of the United States Depart-

ment of the Interior indicating the results of the investiga-

tion made by the five members of the Bureau.. The District

Court excluded this report and on appeal, the Appellate .

Court held that the report was admissible even though it

contained conclusions of experts which were based upon

hearsay evidence, as well as upon observation ang that the

_ reports were admissible, although the circumstances wand.

affect the weight to be given to the document. — .

In Korte v. New York; N.H. @ H. R. Co., 191 F.2d 86, s

‘ cert. den., 342 U.S. 868, 72 S.Ct. 108 (1951) wherein the -

plaintiff sonaht to introduce a vagus written by a physician ;

_. who examined the plaintiff on behalf of the defendant. The ~

in the ordinary course of the defendant’s business. The

- Court held; however, that the letter was in the ordinary

- course of the doctor’s business and there is no requirement

that it be in the ordinary course of the defendant’s business. —

_ In Central Railroad Co. v. Jules §. Sottnek Co., 258 F.2d.

85 (1958) where the plaintiff called a New. York City Fire

Marshal as a witness and thereafter sought to introduce

-his report into evidence, the Court said that since the

federal courts generally apply the more liberal evidentiary

rule when there is a discrepancy between federal and state

rules of evidence i in an effort to favor the reception of evi-

dence that this report was admissible. The Court further:

stated at p. 88, ‘‘The salutary purpose underlying the -

business record statute is’. . . to bring the. realities of

es —business~and professional practice into the courtroom in

usable form.’’

In United States: v. New York Foreign Trade Zope

Operators, 304 F. 2d 792 (1962) where the plaintiff’s em-

ployee slipped: ‘and was injured and thereafter collected

compensation from the plaintiff, and the plaintiff brought

this action against the defendant which was thé owner and

operator of the premises on the grounds of the defendant’s

negligence in failing to remove snow and ice which was

allegedly on the walkway. On the day following the acci-

dent, another employee of the plaintiff prepared .a report

and at the trial of the action, the said report was offered

after the person testified. The defendant objected but ‘the

- court ruled that it was admissible as an exception to the

hearsay rule under the Federal Business Records Act.

_ Thereafter, the trial court. reversed its position’ and re-

' fused to admit the said report into evidénce.. The Appellate

Court held that the broad policy of the statute was to bring

the rules for-admission into evidence of business writings,

records and memoranda more nearly into line with the -

_ standards relied upon by businessmen in making business

decisions outside of court. The statute was designed to do

away with the common law prerequisite to admission of a

business record that a party call the entrant as a witness

or to call someone else to explain why the entrant was

unavailable.

In the case of Palmer v. Hoffman, 318 U.S. 109, 63 -8.Ct.

477 (1943), the Court refused to allow an accident report

prepared by the defendant’s engineer into evidence on the

grounds that the report was not made in ‘‘the regular >

_eourse of business’’ of the railroad and further stated that

. the report’s ‘‘primary, utility was in litigating’ and not

Trailroading’’. The case is easily distinguishable because

the underlying factor in the admissibility of this evidence

is to avoid untrustworthy evidence and a report prepared

“in anticipation of litigation and then offered into evidence

by. the party preparing said report may not-fulfilt the” ie oe

quirements.

In the case of K.L.M. v. Tuller, 292 F.2d 775 (1961) where

_ the subject of admissibility of a statement made by the air-

line’s radio operator some eight or ten hours after the

crash was placed in issue on the grounds that the alleged -

statement should not bind the corporate employer, the court

held. that because of the public nature of the duties of a:

’ common carrier and the relationship of crew members to

passengers that an account to public authorities was the

same.as to the employer and was therefore admissible. The

_ . court further stated that since reliability is the basic test |

for the admission of any hearsay statement, the interest

of the one who utters it and the one to be charged is always

important. ‘‘The official nature of the inquiry which elicited

the statement, the independent recording of the statement,

the source of the utterance, and the. intérest vi the utterer

‘

“10

all combine to give the statement the earmark of reliability :

_absent.in Palmer v. Hoffman.”

‘In the case at bar, the fact situation is very much differ-

ent from the Palmer Case,supra, since the report was pre- oe

pared by the defendant, but offered by the plaintiff and,

further, sincé the report was prepared in the usual course

of the business of the commercial airline. There seems to .

be no question thatthe success or failure of an airline de-

pends, to a large extent, upon the numbers of people who.

desire to use that facility for travel and the airlines in their

efforts to attract passengers, must endeavor to ‘‘sell?’

safety as their sales campaign and therefore, ap, investi-

gation of an aircraft disaster and a decision to continue to

use the facilities are an integral part of the business of an

sities: Therefore, when the defendant took its position’

. ‘this was an unfortunate accident, just too short and

should have been given an opportunity to. apply this con- =

tention against the position taken at time. of trial that there

was a ‘‘thermal sink’’ or ‘‘downdraft’’ which qanned the

disaster.

In the decision of the Circuit Court Ne is stated that it :

night be inferred from Captain Wagner’s ‘position as the |

defendant’s engineering test-pilot that he had apparent

authority to speak.for the airline with respect to the safety —

of the planes it flew but questions the authority. of the

same person to speak for the airline with respect-to the

manner in which one of its planes was flown on a specific

occasion. Certainly, if an individual is authorized to com-

ment ‘on the overall project of safety, then the lesser area

of comment as to the manner in which a plane was flown

on a particular occasion would logically. and necessarily

_ follow within the said authority. p

The court further stated in its decision that Petitioner’ 8

exhibit #17 ‘‘appears to be an. inexpensive mimeographed

——

copy of a communication addniiad generally to all passen-

gers on. the ill-fated flight in ‘order’ to restore. their confi-

dence in the Electra airplane,’’ which it is submitted, lends

absolutely nothing to the issue of, admissibility. An en-

graved piece of parchment as opposed to a mimeographed -

page cannot be decisive. or influential as to mec rat

into evidence. : It: is fundamental that it is. tent of —

. the communication rather than the-appearance of the com-

, munication which-opens the doors to admission into evi-

_ dence, in ‘the trial of a case.

The Circuit Court i in its decision indicated that the « ex-

hibits were not a press release used for promotional pur-

- poses but thereafter refers to the communication’ as an.

effort to restore the passengers confidence ‘i in the aircraft

used by the defendant airline”? This concept, when viewed

through the iron-rimmed spectacles of todays competition.

eee for | the air travel market, and recognizing that the motivat-

ing factors are. simply profit incentives, instead of provid- —

ing an excuse for the carrier should, it is submitted, make

_ them accountable for their position.

Conclusion

+ : = a

Analysis of the case law as well as.of the statute itself,

clearly reveals that our jurisprudence dictates that in a

trial by jury, every. effortshould be made to present evi-°

dence which will serve to shed light upon the subject matter

and to aid the jury in reaching just conclusions. In con-

firmation of this concept, 28 U.S.C.A. 1732 points up the

thinking of the legislature and provides as a safeguard in

‘the statute itself, that ‘‘all other circumstances of the

' making of such writing or record, including lack of personal

knowledge by the entrant or maker,- -may be shown to affect

its weight, but such circumstances shall not affect its ad-

ee ”? It is —— nt that this statute,

Ms :

oor

3 @

. down by clear. pronouncements in the decisions

_ Honorable Court and — ‘urge that certiorari be. .

a ~1)

12.

notwithstanding all other arguments, requires: that the ex-

hibits in question in this case should have been admitted

into evidence and. to exclude them was prejudicial error.

Wuenerorg, the petitioners relying upon the arguments

and authorities cited, respectfully submit that.the ruling of

the Court below is contrary to the standards of law —

of -

granted.’

. Respectfully saleaiited,

/ Attorney for Petitioners |

0 °

‘18 |

- Unrrep Srares Cour or APrrits

‘For tae First Crecurr .

_). No. 6381. if: |

eae -Gaprret Arper Er At.,

| '- PLAINTIFFS, APPELLANTS,

ai AE RR

American Areuings, Inc.,

DEFENDANT, APPELLEE.

JUDGMENT

May 19,1965 - ° |

United States District Court for the District ‘of Massa-

chusetts, and was argued by counsel.

Upen consideration whereof, It is now here ordered,

~ ° adjudged and decreed as follows: The — of the

_ District Court are affirmed.

/ i By the Court:

(s) Rocrr A. SrincHFIELD

Clerk. :

p .

- Civil Action No. -

se Si at ot at SE ENC TRS ERT TE

ee ;

Appendix B sist

\. > Unrmmp Srarss Dismmor Coupt rortaz

oa) ; ‘Distaicr or MassacHusetts: Ee

G@annre, ARBER

eMac RSS MN pt

American AIRLINES, Inc.

‘This s action gaime on for trial before the Court and a jury,

Honorable Andrew A. Caffrey, District Judge presiding,

= and the issues having been duly tried and: the jury Saving 7

duly rendered its verdict. +

It is Ordered and Adjudged -

that the plaintiff take nothing, that the avtion be dis-

missed on the merits, and that the defendant American Air-

lines, Inc, recover of the plaintiff Fletcher C. Crandall its —

costs of action. ce

Dated at Boston, Massachusetts this 14th day of May,

_— :

| . Pai v. Taavansn, Clerk of Court ;

(s) Wits J. Lyons, Deputy Clerk

A .

a |

at | tei gaia —- Appendix 0. Sys. : | ;

United States Court of Appeals |

For the First Cireuit -

No. 6381. ‘Oe dele pull

- GABRIEL ARBER er at; |

' PLAINTIFFS, APPELLANTS,

Sie eee v-~ 08:

AMERICAN AIRLINES, INC.,

: DayanDawe, APPELLEE. :

. a,

CONSOLIDATED APPEALS FROM THE UNITED STATES DISTRICT

’ COURT FOR THE p DISTRICT oF MASSACHUSETTS. a

"Before Widainue, Chief Judge, al Sr :

: and asenyniits Circuit Judges.

David B. Kaplan for siaipelienntas:

Robert Fulton, with whom David ‘H. Fulton was on brief, for ap-

ore

OPINION. OF THE COURT.

: : ~ May 19, 1965. ied

- Woopsury, Senior Circuit Judge (by designation). “These

speiads from four judgments entered in consolidated cases ze

"on jury verdicts for the defendant present only the question ~

. of the propriety of the exclusion of documentary evidence.

- The. Plaintiffs were paying passengers on an American ..

Airlines Electra flight which left Boston at 8:00 A.M. on ae

September 14, 1960, for La Guardia airport, New York, and’

points beyond. On coming in to land on the assigned run-

way at La Guardia the landing gear of the plane struck the

. top of a dike at the end of the runway, and the plane

crashed. The appellants claimed ‘personal — and

—

He.!

brought actions ‘igaliant American Airlines alleging etictines

and negligent operation of the airplane. The defense was

that as the plane made a ‘normal, safe approach to the

‘runway it unexpectedly anf without warning encountered —

a ‘‘thermal sink’’ or ‘‘down draft’’ which caused it sud-

To counter this defense, which 80 far as the record howe

rested entirely on the testimony of the captain flying the

Hg: plane, t the plaintiffs without objection were allowed to intro-

~ duce an accident report emanating from: the defendant air-

line which contained the statement that ‘‘weather was not

considered a factor in this accident.’? Later for the'same .

purpose the plaintiffs offered a mimeographed document

in: the form of a letter received by the plaintiff Arber on

the letterhead of American Airlines., This letter is ad- .

dressed only ‘‘Dear Sir,’’ is dated October 17, 1960, and is

signed, apparently with a rubber stamp, by one ‘Thornton

.. Wagner, Captait?,’’ who identified himself i in the body of

the letter as ‘‘Engineering Test Pilot’’ for American Air- |

lines. Its purport is to restore public confidence in the

Electra airplane tworof which had previously been involved.

in acciderits attributed to structural failure. The letter

bs stresses’ the safety of the plane flown at reduced speed and

the fact that American, Airlines flies it only at reduced

speed and attributes this accident and one in which a

. ‘similar plane crashed after flying into a flock of sea gulls

'. as not having been caused by. any structural defect in the

. _ plane. With. respect to this particular accident the letter

sae”

dtates:. ‘‘The consensus is that this was ‘an unfortunate

accident, just too short and low a landing.” :

' ‘The court allowed the letter. to be marked for identifi-

cation. but on the deferdant’s objection refused to admit

= ‘it in evidence as‘an exhibit on two grounds: lack,of any |

sho owing that Captain Wagner had any authority to make

admissions binding on sad airline and failure of the meant

+ to say ‘‘whose.consensus it is.’’ -We think this ruling cor- .

rect on the first ground and so do not need to consider the

second.

- Assuming for the sienend ‘that the letter constituted an

etuinalon against the defendant’ 8 interest, which is ° ‘the

upon whether Captain Wagner ‘hed authority under the

principles of the law of agency to make the admission ‘on

behalf of his corporate employer. See United States .v.

United Shoe Machinery Corp., 89 F.Supp. 349, 353 (D.C.

Mass. 1950). There is no-direct evidence or offer of evi-

dence that Captain Wagner was clothed with specific au-

thority in this respect. However, it migit be inferred from

Captain Wagner’s position as the defendant’s engineering.

test pilot that he had apparent authority to speak for the

airline with respect to the safety of the planes it flew. But

the inference is not nearly so clear that he also had ap-

manner in which one of its planés was flown on a specific

occasion. We think it well within the discretionary power

.of the court beldW to require the plaintiffs to come forward

'_with more specific evidence of Captain Wagner’s authority

the letter in evidence. See, Restatement cers Agency

§, 286 (1957).

Subsequently, apparently in an effort to make the Wagner

‘ letter binding on the defendant by showing its endorse- .

ment by higher corporate authority, the plaintiffs, again

through the plaintiff Arber, undertook to introduce’ an-

other mimeographed document in the form of a letter of

the same date. This letter is on the letterhead of C. R.

Smith, 100 Park Avenue, New York,.17 New York, is

similarly addressed only ‘‘Dear Sir:’’ and is- similarly

signed apparently with a rubber stamp. It gives no indi-

cation of C. R. Smith ’s connection with American ‘Airlines.

The letter refers to previous publicity about the Electra

airplane, some ‘‘excellent’’ and some ‘‘unfavorable’’; and

'- eontinues: ‘‘You will be asked questions about the Electra;

we want you to be informed about it.’’ The letter then —

goes on: ‘‘No one knows more about the capability of the

Electra than the parties who fly it.. Accordingly, I have

asked Captain Thornton Wagner, Test Pilot for American,

to write you a note about the Electra, and that note is

‘ attached.’? The letter concludes with a statement ‘‘about

American’s operating philosophy’’ with respect to the .

safety of the planes it operates. -

The court below allowed this ‘letter to be marked. for

identification but after conference at the bench at which

counsel for one of the plaintiffs said: ‘‘Smith is president

of the company’? refused to admit it in evidence as an

’ exhibit on the same grounds assigned for refusing to admit

the’ letter from Captain Wagner. The court announced:

‘‘The burden is on the plaintiff to show evidence is ad-

missible, if it is offered by way of admission,”’

The C. R. Smith.letter is not an intra-company accident

report such as: the one introduced by the plaintiffs.in this

case ‘without objection. Nor is.it a letter written by an

airline captain to’his ‘superior by way of a report of an

accident such as Captain Sigman’s letter ruled admissible

in Pekelis v. Transcontinental & Western Air, Inc., 187

- F.2d 122, 125 (C.A. 2, 1951), cert. denied, 341 U.S. 951.

(1951). There is nothing to show that it was a record made

in the regular course of business and thus admissible under

Title 28 U.S.C. § 1732(a).. Nor is it a press release to the

' public generally for promotional purposes. . . On the other

hand, neither is it a personally signed letter addressed to

"a -specific recipient.

.We think the court below did not err in its ruling ex-

eluding the Smith [etter from evidence. x

There is no extrinsic evidence to indicate the source of Ss

the letter as a higher corporate official jwho might be as- .

_ sumed to have apparent authority to speak for his corpo-

ration. There is not even intrinsic evidence in the letter

itself to indicate that the purported -writer was president |

of the defendant airline. It is not written on airline station-

ery, like Captain Wagner’s letter, but so far as appears on

_ a personal letterhead, nor does the writer identify himself

in the, body of the letter as. an airline official in any ca-.

pacity. It appears to be an inexpensive mimeographed

copy’of a communication addressed generally to all passen-

gers on the ill-fated flight in order to restore their confi-

dence in the Electra airplane. In view of the content and

_form of the letter and the lack of evidence identifying OC. R.

Smith with American Airlines: or any showing that’ the

letter actually came from him, we think the.court below did

not abuse its discretion in refusing to admit the letter in

evidence on nothing but counsel’s statement that ‘Smith ,

is president of the company. ”

Moreover, the letter does not authorizé Captain Wagner

to:eommit the airline as to the manner. in which its air-

planes are flown on specific. occasions. It only authorized

Captain Wagner ‘‘to write you a note about the Electra’

because ‘‘we want’ you to be informed about it.’’ Thus,

even if the C. R. Smith letter actually emanated from the

president of the defendant airline, it would add nothing to

the authority of Captain. Wagner to admit: the airline’ 8

liability for this particular accident. ;

On the facts of this ease we conclude that the court below

did not abuse its discretion in refusing to allow. the jury”

to consider Captain Wagner’s letter without more showing

of his authority. |

Judgment will be entered affirming the judgment fe the

District Court.

“~

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.