# Petition for Writ of Certiorari — Arber v. American Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0877%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 382 U.S. 907 ## Text Ge Bn er ——_—" ] } ‘ 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, 4 ‘ ‘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 , ' ool be . e _ me * aati ; , i o- 2 - of are a i a] P . ° PS - A ae ? aN Get ; es on ‘ . = ) 4 ” 4 ‘4 . Os Federal B Business Buty Statute, 28, U.S.C.A. 1732 . Morgan, Admissions, 12 Wash. L. Rev. 181, 186 ./... i € ‘ @ ‘ = - ai 2 . *. ° Q v a _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 —— 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 | 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 x "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.! 16 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- denly to lose altitude and hit the dike. © 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 17 + 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- parent authority to speak for the airline with respect to the © 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 to speak for the defendant on this subject before admitting © 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. 18 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 a 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. “~ us * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0877%3A1. Public record. Not legal advice.