Petition for Writ of Certiorari — Union Trust Co. v. Eastern Air Lines, Inc.

1 pe re

AUC 5

—— —————— : : ae HAROLD B. WALLEY, a

eT

In THE

Supreme Court of the United States

OcroserR TERM, 1955

Union Trust CoMPANY, ET AL.,

Petitioners

Vv.

Eastern Arp Lives, Inc.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Davip G. Bress

SuHeitpon E. BEeRNsTEeIN

1001 - 15th Street, N. W.

Washington, D. C.

Attorneys for Petitioners

Of Coumsel :

. Anvin L. NEwMYER

Jo V. Morean, Jr.

. RE 7.6002 . WASHINGTON 1. OD. C

WILSON . Eres PRINTING CO

a ee eee) ee dle Se Tarkan " <= . .

INDEX

PAGE

SUBJECT MATTER

OPINIONS BELOW ........-----------c-ececcreetreete 1

JURISDICTION ..~-.----------------cnceeessnenseseneeneetecentenenses 2

QUESTIONS PRESENTED .........-.------c0-c--0-eeseeeoenoee 2

STATEMENT OF THE CASE..........------------------ 3

A. In Gerneral -.........----------c-eeeneecenreeessnseeentetennntneneens 3

The Pertinent Evidence...............-.--------------- 5

1. Im General ............--.-------ccseecsrcsseeneeetenseees 5

» The Actual Tigner Testimony — Its

Lack of Credibility..............--.---.-------02++-+--+ 6

2 The Shaw Testimony—Its Probative

RR cc cacaseunsensnemeinnininisecnadeimtantvenie cee 7

4. The Evidence in Summary............-..--------- 11

REASONS FOR GRANTING THE WRIT.......... 12

I. The Decision Below is a Shocking Inva-

sion of the Jury’s Function, a Gross

Impairment of the Right to Trial by

Jury and Contrary to Standards for

Judicial Review Long Established by

THis COUP -..---.-n--o--nccncececceescererenseveesecsenseneee 12

Il. The Court of Appeals Erroneously Con-

cluded That the Jury Must Accept the

Uncontradicted Testimony of a Witness

Whose Credibility Had Been Substan-

tially Assailed; That Decision Conflicts

With Decisions of This Court and Sev-

WB CRROTTIG occcececsesctesesnsvecnerecsessncansentscreersoes 21

CONCLUSION

ii INDEX (Continued)

PAGE

CITATIONS

Cases:

Aetna Life Insurance Co. v. Ward, 140 U.S. 76,

88, 35 L. ed. 371, 876 (1890)... 13

RR ri eet Sted Pee 16

Ammons vy. King, 133 F, 2d 270, 272 (C.C.A, 8,

DON sehclasa titer cuisine n 23

rant Corp., 175 F. 2d. 77, 79-81 (C.C.A. 2, 1949) 24

Burcham vy. J. P. Stevens & Co., Ine, 209 F. 2d 35

OCDE hs ME 17

Dyer v. MacDougall, 201 F. 2d 265, 269 (C.C.A.

a | a iene eon 25

Elwood v. Western Union, 45 N. ¥. 549 (1871)... 22

ig RR ae Re tian 24

Gunning v. Cooiey, 281 U.S. 90, 74 L. ed. 720

be ee ae as ac at al ERIE Lice tte nl can one RD 14

Jacob v. City of New York, 315 U.S, 752, 86 L.

eat wi | SRR aoe 13

Lavender v. Kurn, 327 U.S. 645, 652-653, 90 L.

on. 916, Sees (te) 14

a, a Se el FN 15

N.L.R.B. v. Howell Chevrolet Co., 204 F. 2d 79,

Pe RR A eee 25

People v. Tuezkewitz, 149 N.Y, 240, 43 N.E. 548

Seg. ITT DE ah NO, ee EE NN 24

Quock Ting v. United States, 140 U.S. 417, 35 L.

ee US EE ee eae 22

Quon v. Niagara Fire Ins. Co, 190 F. 2d 257,

ke ee | ie 23

Rosenberg v. Baum, 153 F. 2d 10, 13, 14 (C.C.A.

ii, I irsidantncy Minanatenek en eee ee ee hart 23

Sartor v. Arkansas Natural Gas Corp., 321 U.S.

an het ba Se 23

Sonnentheil v, Christian Moerlein Brewing Co.,

172 U.S, 401, 408 (1898) 000. Oe ae eR A 2

Tennant v. Peoria & Pekin Union R. Co., 321

U.S. 29, 35, 88 L. ed. 525 (1948).......................... 13

The Indien, 71 F. 2d 752 (C.C.A, 9, 1984).............. 23

Te : Fee 7

In THE

Supreme Court of the United States

OcrosBER TERM, 1955

Union Trust CoMPANy, ET AL.,

Petitioners

Vv.

Eastern Air Lives, Inc.

Petition For a Writ of Certiorari To the United States

Court of Appeals For the District of Columbia Circuit

The petitioners, Union Trust Company and Melville

W. Stuart as executors of the Estates of Ralph F. Miller

and Mildred E. Miller, his wife, pray that a writ of cer-

torari issue to review the judgments of the United States

Court of Appeals for the District of Columbia Cireuit

in Nos. 11,991 and 11,992 below reversing judgments of

the United States District Court for the District of Co-

lumbia entered upon a jury verdict in petitioners’ favor.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

991 F. 2d 62'. The opinion of the District Court in the

1 The modification of opinion and judgment described hereinafter

appears infra Appendix A 4a-5a. The opinion of the Court of

Appeals is also set out in Appendix A la-4la of the Government’s

petition for a writ of certiorari in the companion case entitled

Caer Sen bea ek bcaliaitbaas i

2

companion case against the United States is reported at

113 F. Supp. 80 (also I R. 36-46).

JURISDICTION

The judgment of the Court of Appeals was entered

February 8, 1955 (U.S. 42a-44a). Petition for rehearing

in bane was denied on April 15, 1955 (App. A 2a-3a) and

for rehearing by original division on May 4, 1955 (App.

A 3a). On petitioners’ motion, by order of June 24,

1955, the judgment of February 8, 1955 was amended to

limit a retrial to the issue of liability (App. A 4a-5a).

Eastern’s motion for rehearing on the modification was

denied July 12, 1955 (Order, App. A 6a-79; Per curiam

memorandum App. A 5a-6a). By order of July 23, 1955

signed by Justice Black, the time for filing this petition

was extended to and including August 9, 1955. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

In wrongful death actions against an air carrier

whose plane collided in mid air with another plane, a

verdict was returned in favor of the carrier’s passengers.

Analyzing the weight of the evidence and inferences

therefrom, and particularly the testimony of a control

tower operator on the question whether he had cleared

the planes to land as against other testimony tending to

indicate he did not clear the carrier’s plane, the court

United States of America, Petitioner v. Union Trust Company,

et al. That appendix and the record filed with the Government’s

petition will be used for purposes of this petition. Reference to

said Appendix A of the Government petition will typically read

“U.S. la” (i.e., page 1 of that appendix) whereas reference to the

appendices to this petition will read “App. A —” or “App. B —”.

Reference to the Joint Appendix below will read “I R. 1” (i.e.

Volume I page 1).

3

below concluded that the trial judge erred in submitting

that question to the jury and in not accepting the version

of the control tower operator as @& matter of law, and

therefore reversed and remanded for new trial on the

issue of liability. The questions thus presented are:

1. Whether the extensive appellate excursion into

relative credibility and probative weight of evidence

under the guise of a determination as to the legal suf-

ficiency of the evidence constitued an unwarranted in-

trusion into the jury’s exclusive province and a depriva-

tion of the constitutional right to a jury trial.

2 Whether on disputed evidence, an appellate court

can take from the jury the power of determining whether

testimony “negative” in form is so in substance and what

probative weight is to be given such testimony as against

the opposing uncorroborated affirmative testimony of a

single witness, and direct the jury as a matter of law

to accept the version of that witness notwithstanding that

he had been severely impeached and contradicted.

8 Whether, assuming arguendo that there was no

opposing testimony, a court should instruct the jury as

a matter of law to accept the uncontradicted assertion

of an interested witness whose credibility has been sub-

stantially assailed and whose testimony on most other

critical points has been impeached and contradicted.

STATEMENT OF THE CASE

A. In General

As with the companion cases against the United States,

these are test cases representative of extensive litigation

arising out of a mid-air crash of November 1, 1949 be-

tween a military type P-38 and an Eastern Air Lines

DC-4. fatal to the 51 passengers and 4 crew of the latter

plane.

Lata dowied at aE ll 4

4

In wrongful death actions against the operators of

both planes and against the United States of America,

as owner and operator of Washington National Airport

and its control tower (I R. 2-5, 7-10, 12-14), petitioners

claimed that Eastern was concurrently responsible for

the crash by reason of several acts of negligence by its

pilots including, inter alia, attempting to land without

clearance from the control tower (See pre-trial order,

I R. 21-26; see also jury charge at X R. 2107 et seq.).

After appropriate instructions (X R, 2091 et seq.) not

here in issue, the jury returned a verdict of $50,000 on

account of the death of Mr. Miller (I R. 55-56, X R.

2123-2124) and $15,000 on account of the death of Mrs.

Miller (I R. 56-57, X R. 2124) after returning answers

to special interrogatories with respect to negligence of

the private defendants and the situs* of the collision

(X R. 2125-2124). Motion for new trial was denied

(I R. 48A).

On appeal by Eastern, the court below reversed both

judgments and remanded for a new trial (U.S. 42a-44a)

on the ground that the “negative” testimony of the wit-

ness Shaw (the co-pilot of a commercial plane that was

approaching to land at Washington National at the

time of the crash) that Eastern was not given a clear-

ance to land coupled with claimed corroborating cireum-

stances did not rebut the otherwise uncontradicted state-

ment of the Washington tower controller, Tigner, that

he had cleared Eastern to land. The court below held

that it was error to have submitted this claimed act of

negligence to the jury and remanded for a new trial

hecause it said it could not determine whether the verdict

was predicated on this or other of the claimed acts of

negligence (U.S, 22a-23a). Subsequently, on petitioners’

* The importance of the situs problem, not in issue here, appears

in footnote 2 of the opinion below (U.S. 3a; also 221 F. 2d at 64).

5

motion, the court below amended its opinion and judg-

ment so as to remand for retrial of the issue of liability

only (Order of June 24, 1955, App. A 4a-5a), leaving

intact the jury’s determinations as to situs and damages

(see order and opinion of July 12, 1955, App. A 5a-7a,

denying Eastern’s motion for rehearing on modification).

B. The Pertinent Evidence

1. In General

This petition is largely grounded on the necessity of

this Court’s exercising its supervisory jurisdiction to

avoid emasculation of the constitutional right to jury

trial under the guise of appellate review as to the legal

sufficiency of the evidence where that review usurps the

jury’s sole prerogative of evaluating questions of credi-

bility and the relative weight and force of conflicting evi-

dence and inferences. In consequence, it unfortunately

hecomes necessary to refer to the evidence in some detail

so as to demonstrate the excesses below. Because of the

size of the record, that process would unduly tax this

petition and, accordingly, with the Court’s indulgence,

petitioners refer the Court to the factual recitals and

background set out in the opinion below (U.S. 3a-2la;

also 221 F. 2d 65-720) which petitioners request the

Court to consider as incorporated herein and to he read

at this juncture. While petitioners do not subscribe t.

all the detail and nuances thereof, as will be partially

indieated hereinafter, those recitals do furnish an ade-

quate overall picture of the factual situation involved.

Insofar as pertinent here, petitioners’ principal dif-

ference with the factual assertions in the opinion below

relates to the treatment of the testimony of the witnesses

Tigner (the key tower controller) and Shaw (the co-pilot

of the National Airlines plane), upon which the decision

helow turned, This testimony will be discussed in the

hd te Nga ad bas ibid a

6

light of the conclusion, upon which the decision below

was based, that Tigner’s repeated and unshaken positive

assertion that he cleared the Eastern plane to land is

unimpaired by the Shaw testimony which, because Shaw

was inattentive and not in a position to hear all radio

messages for a certainty, is purely “negative” in char-

acter.

2. The Actual Tigner Testimony—Its Lack of Credi-

bility

The court below assumed Tigner’s credibility (and

that the jury was required to believe him) in leading to

its finale that “ ... Tigner testified positively that he

cleared the DC-4 to land ... [and] he adhered to that

statement despite vigorous cross-examination” (U.S. 16a-

17a). In so doing, the court omitted any reference to the

plethora of evidence contradicting and impeaching Tigner

on almost every single phase of his testimony including

his story of the alleged clearance *. Again to avoid bur-

dening this petition but to support petitioners’ char-

acterization of the Tigner testimony there is attached

hereto as Appendix B a comparative chart of the testi-

mony of Tigner and others on various important points

in the case. Contrary to the impression given by the

opinion below of a reliable and unshaken Tigner testify-

ing he cleared Eastern to land, this comparative chart

plainly demonstrates that Tigner was impeached, self-

‘impeached and contradicted on the circumstances of the

alleged clearance and on all other aspects of his testi-

3’ There was not one scintilla of evidence corroborating Tigner’s

story that he cleared Eastern. None of the other men in the con-

trol tower could confirm Tigner as to the alleged clearance (VII

R. 1562, VIII R. 1575, 1549) although they were not very busy at

the time (VII R. 1394, 1409) and, strangely enough, claim to have

heard the other alleged transmissions between Tigner and the

P-38.

7

mony to the degree that not one shred of credence could

be given anything he said.‘

3. The Shaw Testimony—Its Probative Force

The opinion below similarly miscasts the Shaw testi-

mony, as well as other evidence tending to show that

Eastern was not cleared to land.’ To appreciate the

significance of Shaw’s testimony, it is necessary to un-

derstand the procedures for planes approaching Wash-

ington National Airport—which the court below either

ignored or did not fully grasp. It is undisputed that as

a commercial flight approaches from the north if is on

its own company radio frequency (on which it has re-

mained since leaving the last airport). That company

frequency (like any other frequency) is in effect a party

line and transmissions thereon can only be heard by

planes tuned to that party line. When the plane reaches

the Beltsville, Maryland area, it switches its radio trans-

mitter and receiver to Washington ATC (Air Traffic

Control), a separate and distinct frequency or party

line (120.3 megacyecles) for planes approaching the

Washington airport before they have come under con-

trol tower jurisdiction. The plane reports to Washington

‘ Even the trial judge disbelieved Tigner, as shown by his find-

ings in the companion cases involving the United States, e.g., that

Tigner cleared the P-38 to land (I R. 44, 51) which Tigner had

vigorously denied. And the jury obviously disbelieved him.

5 For example, the opinion omits any reference to the unrebutted

testimony of a field mechanic, Kirby, that the Eastern DC-4 did

not actually follow the landing pattern, but instead cut right across

the field and the concourse of the terminal building (II R. 280)

which not only reflects on Tigner’s credibility and the opinion’s

assertions that the DC-4 entered the pattern around the field, but

which is one of the many separate strands of circumstances upon

which the jury could have fairly concluded that Eastern was at-

tempting to land post haste without clearance. The evidence that

Eastern was late, so cavalierly disposed of below (U.S. 15a-16a)

is of similar import and corroborative of Shaw’s testimony that

no clearance to Eastern was transmitted by the tower.

BOUIN Re Cane

et tens

8

ATC (not to be confused with the contro] tower which

is physically a separate entity with separate duties and

activities) and ATC then directs the plane to switch over

to the control tower, whereupon the plane again rotates

its radio selector switch in order to cut in on the sepa-

rate and distinct radio channel or party line for com-

munication with the control tower (119.1 megacyles).

Thereafter, the plane remains on the control tower fre-

quency until it has landed and on that frequency, and

only that frequency, receives messages authorizing clear-

ance into the pattern, clearance to land, concerning con-

ditions for landing (weather, wind, runway, etc.), other

traffic in the pattern, ete.

Understanding this approach and communications

sequence, the Shaw testimony is impressively different

from that purportedly summarized in the opinion below.

Shaw repeatedly testified: (1) that as his plane ap-

proached Beltsville, his pilot (Porter) switched from

company to ATC frequency and he (Shaw) immediately

heard the Eastern plane reporting itself to ATC and

being advised to contact the tower (both he and Porter

wore head set receivers throughout, see fn. 6 and text

infra); (2) that the Shaw plane immediately went

through the same procedure on the ATC frequency; (3)

that as the Shaw plane immediately switched to the

tower frequency, Shaw heard Eastern reporting to the

tower and being instructed to enter the left traffic pattern

for landing on Runway 3; (4) that immediately upon the

completion of that transmission, the Shaw plane went

through the same procedure with the tower and was simi-

larly cleared into the pattern. That sequence and the

fact that the messages and responses were almost in-

stantaneous, one after the other, was repeated several

times in the Shaw testimony (See, e.g.. T R. 82, 84, 111,

115).

Shaw’s testimony continued to show wunequivoeably:

(1) that from the time the Eastern DC-4 and his plane

9

first switched to the tower frequency, Shaw’s plane con-

tinued to be tuned to that frequency (I RB. 85, 90, 92, 99,

117, 140); (2) that he mever took his radio earphones off,”

(3) that during this entire period, the tower frequency

(119.1) was very quiet, with only three users, Shaw’s

plane, the Eastern plane and the tower (1 R. 90); (4) that

Shaw was very attentive to transmissions over this fre-

quency, shown first by his effort to locate the Eastern

DC-4 when he heard it over the radio (I R. 84) and

second, by his attempt to locate the P-38 when he heard

the tower mention it (1 R. 90); (5) that there was noth-

ing to distract Shaw’s attentiveness to radio messages

(such as log entries to make (I R. 124)); (6) that from

the time Eastern and his plane reported to the tower

from Beltsville in quick and immediate succession until

after the accident, there were no transmissions over the

tower frequency by anyone (i.e., Eastern, Shaw’s plane

or the tower) except two—the first to the effect “Eastern,

traffic a P-38....” which he (Shaw) heard when his

plane was in the vicinity of the Armory (I R. 90), and

the second and last “Look out for the P-38” which he

heard about one minute later as his plane approached

Haines Point (I R. 99).

Based on its misconstructions of and omissions from

the Shaw testimony, the court below reached the wholly

unsupported and protagonist-like conclusion that “It is

an unquestioned and unquestionable fact that Shaw was

not in a position to hear messages from the tower during

all the eritical nine-minute period” (U.S. 18a). However,

as already shown: (a) Shaw was tuned to the tower

6 In footnote 5 (U.S. 16a) the opinion unfairly states that Shaw

“qualified” his testimony about keeping on his earphones, quoting

a portion of his cross-examination. In the context of his entire

testimony and absent his voice inflection when he so testified, this

is entirely unwarranted. It ignores repeated earlier testimony that

he had his earphones on during the entire critical period (I R. 92)

and that this was required (I R. 76).

RO AD A ke

LORD Dp es tbe th

beast“ ne AC gw Pa ie) Nae aR ARE ik ARTE RS RRS al

10

frequency (and remained thereon) almost instantaneously

after Eastern tuned to that frequency, whatever time

that may have been, so that Shaw could have heard any

message between the tower and Eastern, and; (b) from

the time Eastern and Shaw’s plane were cleared into the

pattern, in immediate succession during the very first

few seconds both tuned to the tower frequency, Shaw’s

plane never again called the tower until after the crash

(see I R. 90 where Shaw states there were no transmis-

sions on the frequency other than as above stated).’

This leads to the last important but erroneous factual

assertion below about Shaw: that since Shaw could not

have heard Eastern cleared into the pattern, he appar-

ently heard it cleared to land and confused the two

(U.S. 19a-20a). That this is sheer fantasy is evident

in part from the fact that no such hypothesis was ad-

vanced by Eastern. From the earlier discussion of

approach and communication procedures and the Shaw

testimony, it is clear that Shaw’s plane was on the tower

frequency almost from the moment Eastern was. (By

almost we mean that though not at the same precise

* The court below supported its argument largely on the basis

of time discrepancies. However, Shaw’s assertions of times were

only approximate and based on memory (I R. 113, 119). More

important, the only factor showing possible error in that regard

is the pre-trial stipulation between counsel that Eastern was

cleared into the pattern at 11:37 whereas Shaw indicated it was

about 11:41-11:43. On the basis of this stipulation, the court says

“Shaw did not hear . . . the tower clear Eastern to enter the

traffic pattern.” (U.S. 19a). This is utterly unsound and beyond

the appellate province. First, what basis is there in the record for

telling Shaw, a trained, intelligent and honest pilot, what he

heard or could have heard where routine commercial aeronautical

experience is involved? Second, is Shaw not to be believed because

counsel may have blundered in making a pre-trial stipulation prior

to a full exploration of the facts? Third, even if Shaw made a

mistake as to the exact times (or if clocks or watches did not ex-

actly coincide), it certainly does not follow that he did not hear

what he said he heard.

EMAIL

11

moment, there was still not enough of an interval for a

message to get through.) Thus it was impossible for

Eastern to have had any earlier communications with

the tower because Eastern had previously been on the

ATC frequency and before that on its own company

frequency. Therefore, that first communication which

Shaw heard between the tower and Eastern necessarily

was a clearance to enter the pattern not a clearance to

land which sequentially is not given until the approach-

ing plane is in the immediate vicinity of the field.

Whether or not Shaw was mistaken as to exact times

(see fn. 7, supra), one thing is certain—that is, when

Shaw tuned into the tower frequency immediately after

Eastern had, he heard Eastern cleared to enter the pat-

tern, whether it was 11:38 or 11:42, unless Shaw was

lying. And whether he was lying was for the jury—

not the court below—to determine.*

4. The Evidence in Summary

As indicated, the function and limits of this petition

and the length of the record will not permit of an ex-

haustive treatment of the evidence or of its tortured

treatment below. However, the foregoing highlighted

analysis reflects that as opposed to the Court of Appeals

portrayal of an unimpeached and unshaken Tigner story

that he cleared Eastern to land with purely “negative”

and inconclusive testimony by Shaw that such a mes-

sage may not have been transmitted, there is on the

®Implying that Shaw’s trial testimony on the clearance message

was of recent fabrication, the opinion refers to a statement by

Shaw during the C.A.B. investigation (more than 3 years earlier)

where Shaw was reported as saying he heard Eastern given a

landing clearance (U.S. 20a). The court below fails to mention

that Shaw testified that this statement was corrected within a few

days, saying that “.. . if you will check my [C.A.B.] hearing, I

corrected that before Mr. Jones. There was misuse of the words

‘landing clearance’” (I R. 118).

12

record, the fact that the Tigner story came from the

mouth of one who was interested, biased and who lied

while the Shaw testimony was forceful and convincing

that such a clearance had not issued. At the least, where

the only question for the Court of Appeals was as to

the legal sufficiency of the evidence, there was more than

ample basis for submission of the question to the jury.

REASONS FOR GRANTING THE WRIT

The Decision Below Is a Shocking Invasion of the Jury’s

Function, a Gross Impairment of the Right to Trial

By Jury and Contrary To Standards For Judicial

Review Long Established By This Court.

Wholly apart from its limiting and far-reaching effects

on the rights and fortunes of the surviving families of

the many killed in this air disaster, the decision below

again requires the exercise of this Court’s supervisory

jurisdiction to prevent the alarming departure from the

historical and constitutional dichotomy of functions be-

tween judges and juries.

Time was when the time honored and time tested ap-

pellate rule for ascertaining the sufficiency of the evi-

dence to support a verdict was based not on the weight |

of the entire evidence as independently evaluated by the |

reviewing judges, but rather on the existenee of any sub-

stantial evidence on which a jury of reasonable men

might have decided as they did. In correcting appellate

invasions of the jurv’s province, that rule has been re-

peatedly emphasized by this Court because

“The right of jury trial in civil cases at common

law is a basic and fundamental feature of our system

of federal jurisprudence which is protected by the

Seventh Amendment, a right so fundamental and

sacred to the citizen . . . should be jealously guarded

by the courts.”

%

ee em es FRG IEP ELE IPL SELON ee

rw meee bP nt weer waren dny

13

Opening lines of opinion in Jacob v. City of New York,

915 U. S. 752, 86 L. ed. 1166, 1168 (1942), reversing cir-

cuit court of appeals’ affirmance of district court’s dis-

inissal of negligence action ‘‘at the close of the plaintiff’s

case upon the ground that he had failed to prove facts

sufficient to justify submitting to the jury the issue of

the defendant’s negligenve.’’ ®

The scope of the jury function inviolate from judicial

tampering is well described in Aetna Life Insurance Co.

v. Ward, 140 U. S. 76, 88, 35 L. ed. 371, 376 (1890):

“The jury were the judges of the credibility of the

witnesses... and in weighing their testimony had

the right to determine how much dependence was to

be placed upon it. There are many things sometimes

in the conduct of a witness upon the stand, and

sometimes in the mode in which his answers are

drawn from him through the questioning of counsel,

by which a jury are to be guided in determining the

weight and credibility of his testimony. That part

of every case .. . belongs to the jury, who are pre-

sumed to be fitted for it by their natural intelligence

and their practical knowledge of men and the ways

of men: and so long as we have jury trials they

should not be disturbed in their possession of it, ex-

cept in a case of manifest and extreme abuse of their

function.”

Thus, in Tennant v. Peoria € Pekin Union R. Co., 321

U. S. 29, 35, 88 L. ed. 525 (1943), this Court, finding

“No reason... Why we should abdicate our duty to

protect and guard that right [to jury trial]” where a

verdict for plaintiff was upset by the cireuit court be-

eause of alleged insufficiency of evidence of defendant's

negligence, granted certiorari and reversed because:

“Courts are not free to reweigh the evidence and set

aside the jury verdict merely because the jury could

® Quotation from per curiam opinion of Second Circuit in same

case. 119 F. 2d 800, 801 (1941).

14

have drawn different references or conclusions or be-

cause judges feel that other results are more reason-

able.”

To similar effect see Gunning v. Cooley, 281 U. S. 90, 74

L. ed. 720 (1930).

In many ways parallel to the issue on this petition is

the decision in Lavender v. Kurn, 327 U. S. 645, 652-653,

90 L. ed. 916, 922-923 (1945) where, in a wrongful death

case, the critical question was whether the decedent was

murdered or killed by a mail hook protruding and swing-

ing from defendant’s train. On certiorari, reversing the :

Supreme Court of Missouri which had reversed a trial

judgment in a jury action, this Court stated:

‘‘We hold, however, that there was sufficient evidence

of negligence on the part of both the Frisco trustees

and the Illinois Central to justify the submission of

the case to the jury and to require appellate courts

to abide by the verdict rendered by the jury.

‘It is true that there is evidence tending to show

that it was physically and mathematically impossible

for the hook to strike Haney. And there are facts from

which it might reasonably be inferred that Haney

was murdered. But such evidence has become irrele-

vant upon appeal, there being a reasonable basis in

the record for inferring that the hook struck Haney.

The jury having made that inference, the respondents

were not free to relitigate the factual dispute in a

reviewing court. Under these circumstances it would

be an undue invasion of the jury’s historic function

for an appellate court to weigh the conflicting evi-

dence, judge the credibility of witnesses and arrive

at a conclusion opposite from the one reached by the

men may draw different inferences, a measure of

y speculation and conjecture is required on the part of

$ those whose duty it is to settle the dispute by choosing

j

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a ne . _ en —— scemcesnensesmea wth neat ROSE ae eT

: jury.

b ° . . . .

4 “Tt ix no answer to say that the jury’s verdict in-

3 volved speculation and conjecture. Whenever facts

: are in dispute or the evidence is such that fair-minded

*

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15

what seems to them to be the most reasonable infer-

ence. Only when there is a complete absence of pro-

bative facts to support the conclusion reached does

a reversible error appear. But where, as here, there

is an evidentiary basis for the jury’s verdict, the jury

is free to discard or disbelieve whatever facts are in-

consistent with its conclusion. And_ the appellate

court’s function is exhausted when that evidentiary

basis becomes apparent, it being immaterial that the

court might draw a contrary inference or feel that

another conclusion is more reasonable.”’ (Emphasis

supplied.)

For a similar decision on certiorari, also involving

circumstantial proof as to how death was occasioned,

where this Court granted certiorari and reversed a cir-

euit court judgment setting aside a jury verdict, see

Myers v. Pittsburgh Coal Co., 233 U. S. 184, 58 L. ed. 906

(1914).

Inexplicably ignoring these long standing guides for

appellate review, the opinion below wanders through the

cold record, selecting at random that which the court

chooses to believe or rely upon, thus denying the right—

the exclusive right—of the jury to weigh relative proba-

tive force and eredibility of the various pertinent items

of evidence.

Illustrative is the initial error of the opinion wherein

the court states that the Eastern plane was struck ‘‘from

above and behind’’, whereas under the evidence the jury

may have properly concluded, and probably did conclude,

that the DC-4 eut in front of and nosed up into the P-38,

which conclusion was amply supported by the technical

evidence.” While that error does not directly bear on

10 There was some evidence supporting the court’s statement.

On the other hand the statement omits the established fact that

except for the last seconds (at the most 15 seconds since the DC-4

was on “final” for only 144 to % mile at 120 m.p.h.), the P-38 was

on a straight in approach and the DC-4 swung in a wide arc to

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16

the sole issue upon which the decision below turned (i.e.,

Whether Eastern was cleared to land), nevertheless it

does reflect an unaccountable and improper appellate

disposition to recast the facts on appellate visceral reac-

tion as to whether to accept or reject the truth of bits

of testimony. That new disposition must necessarily un-

dermine the jury system. The emphasis would shift from

a criterion whether reasonable men could differ to whether

the appellate court thinks the jury’s verdict was correct

in the light of what the particular division" of the ap-

pellate court thinks the verdict should have been had it

sat as a jury of three.

The opinion below suggests a predisposition against

the jury system—rumblings of which have been heard

in other quarters—for no matter what the sugar coating

or the trappings of verbiage, in fact, the appellate court

has pre-empted the jury’s exclusive prerogative of evalu-

ating credibility of witnesses, weighing the probative force

of conflicting testimony and determining which of con-

flicting inferences is to he controlling.

Beyond ruling that the so-called ‘‘negative’’ testimony

of Shaw could not he given any probative value by the

jury, the court has in effect ruled as a matter of law that

cut in front of the P-38 (See e.g., Plaintiffs’ Exhibits 1 and 8,

XI R. 2125, 2129; ef. trial court’s charge at X R. 2113, as to

which Eastern has not claimed error). More important, the state-

ment overlooks the testimony of a C.A.B. expert (Pahl) who,

from his examination of the wreckage, concluded that at impact

there was little difference in the attitudes or the horizontal speeds

of the top planes and that the impact could have been caused by

the movement of either plane or “by one coming up a little bit

and one coming down a little bit” (V R. 1017-1018).

"In Alexandria, Barcroft & Washington Transit Co. v. Coz,

No. 12345, decided March 3, 1955, Judge Miller who wrote the

opinion below in the instant case again favored upsetting a jury

verdict rendered as conflicting evidence, but his view did not pre-

vail because the other two judges who constituted the panel for

that case (Bazelon and Washington) voted in a per curiam opinion

not to upset.

,

7 aii

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17

Tigner told the truth when he testified that he cleared

Eastern to land and that the jury was required to accept

that statement as truth. Yet both judge (see fn. 4 supra)

and jury obviously disbelieved Tigner in which they were

amply justified (See Appendix B).”

We have not been able to find a single case comparable

to that at bar where the function of resolving credibility

and selecting between conflicting evidence and inferences

was taken from the jury and its exclusive and traditional

province thus invaded by an appellate court. And rightly

so, because it hehooves judges to resist ‘*. .. the seductive

argument [often] made that a conclusion of fact which

appears to the court to be reasonable is so clear that

reasonable men could reach no other’’." Indeed were

that practice condoned, the tendency would be to reduce

the jury to a mere formal appendage.

The same gross departure from constitutional tradition

is apparent in the treatment of Shaw’s ‘‘negative’’ testi-

mony. The court below notwithstanding, the record shows

beyond peradventure of doubt: (1) that Shaw was tuned

to the tower frequency all of the critical time that East-

ern was; (2) that Eastern could not have been tuned to

the tower earlier; (3) that Shaw could not have confused

a message clearing Eastern into the pattern with a clear-

ance to land and that the initial message he heard had

to he the former; (4) that after this initial message, fol-

lowed immediately and almost instantaneously by a simi-

12 As noted in our original brief below (p. 11), this is not a

case of minor inconsistencies in the two versions of the accident,

but rather one where the two versions wholly and irreconcilably

conflict to such a degree that one must necessarily conclude either

Tigner or Bridoux (the P-38 pilot) was a liar. See App. B infra.

Towards the end of the trial, the judge remarked fat the bench]

that “I don’t think anybody questioned Bridoux’ veracity at all.”

(X R. 2048).

18 From opinion of Chief Judge Parker in Burcham V. J. P. Ste-

vens & Co., Inc., 209 F. 2d 35 (C.C.A. 4, 1954).

wees,

Poems

parent

18

lar clearance into the pattern for Shaw’s plane and

until after the accident, Shaw’s plane was not transmit-

ting so as to create the possibility of blocking incoming

transmissions; (5) that Shaw was paying attention to

the messages on the frequency, looking for the Eastern

plane and the P-38 when they were mentioned on the

frequency, and; (6) that the tower frequency was then

not busy, being used only by the tower, Fastern and

Shaw’s plane,

With all this—shown by the record but overlooked,

ignored or misunderstood in the court’s statement of the

facts—-Shaw’s testimony rises far above the conventional

understanding of ‘‘negative’’ testimony. Shaw was an

impressive witness with an excellent aeronautical back-

ground, civil and military, and of obvious ability and in-

tegritv, And though these factors, judged face to face,

must necessarily play an important part in determining

the weight to be given Shaw’s testimony, an appellate

court here states that as a matter of law he must have

heen mistaken, We submit that a careful re-reading of

his testimony in the light of each assertion in the opinion

helow must convince this Court of the injustice resulting

from the tisinterpretation of the Court of Appeals.

As a matter of fact, Shaw actually testified affirmatively

that Eastern was not cleared (I R. 92)—a record fact

which the court also overlooked in its opinion. He -ob-

viously and sensibly based this categorical statement on

the fact that if any clearance to land had issued to East-

ern, he was in a position to and would have heard it and

remembered it.* This testimony was affirmative, positive

‘* Again, the court incorrectly questions Shaw’s attentiveness

when it asserts (U.S. 20a-2la) that he testified with respect to

the tower message “Eastern, traffic, a P-38 .. .” that the di-

rection did not “register”. Shaw testified that when he used the

word “register” he meant that whatever the direction given was

he had no recollection of it [3 years later] at the trial (I R. 91-

92).

19

and not objected to; it was sufficient without more to

create an issue against Tigner’s sole uneorroborated testi-

mony that he cid clear Eastern. Obviously, as an intelli-

gent pilot at the controls and wearing earphones coming

into a busy airport, Shaw was very much concerned with

messages being broadcast on his radio frequency con-

cerning landings. His being at the controls of the plane

hardly detracts from his concern, interest and care to

note all broadcasts that might affect his handling of the

controls. He would be particularly concerned with a clear-

ance broadeast to the Eastern plane, which he already

knew had been cleared into the pattern immediately before

he was so cleared, the movements of which would vitally

affect and determine his own actions. He made this evi-

dent by his testimony that when he heard Eastern re-

porting and cleared into the pattern, he immediately

looked around to locate it (1 R. 84).

Coneceding, arguendo, the hypothesis helow that nega-

tive testimony is not entitled to the same probative weight

as positive affirmative testimony (the springboard for the

ultimate conclusion that Shaw’s testimony did not rebut

Tigner’s on the clearance issue), there remains no excuse

for the action below. Its logic, or rather illogie, are the

false companion assumptions: (1) that testimony is either

black or white, positive or negative, and (2) that whether

testimony is truly negative, i.e. whether the witness was

attentive and in a position to see or hear, is for judges

to determine rather than for the jury. Here is the gist

of the appellate court’s invasion of the jury function.

Whether Shaw's testimony wrs negative in forn, it was

the sole function of the jury to determine wheiber that

testimony was substantively negative and the weight to

he given it. Tn this ease, the jury reasonably could (aod

undoubtedly did) conelud: that the probative weight ov

the Shaw testimony was substantial hecanse he was, in

fact, in a position to hear and was attentive. Since, at

the least, reasonable men could have differed on this, ju-

ete

on

20

dicial authority does not extend to dictating to the jury

what their conclusion should be as to whether a witness

was attentive and in a position to have observed. The

sole judicial intervention, if any, in the making of such

a determination should properly be limited to trial court

instructions, if requested (which Eastern did not), calling

the jury’s attention to the qualitative difference between

positive and negative testimony to be considered by the

jury in arriving at the probative weight assigned each.

In summary, the opinion below parallels a jury argu-

ment, culling the testimony and inferences, and selecting

those which impress the proponent—a far ery from the

appellate function. Indeed, the departure becomes more

evident in the attempted disposition of those cireum-

stances, which petitioner urged corroborated Shaw’s no

clearance testimony. Apart from the error in the an-

alysis or omissions of pertinent evidence in this regard

(see fn. 5 supra), petitioners question the opinion’s tech-

nique in isolating each of these corroborative cireum-

stances and then concluding as to each thus separately

considered that it is without substantial weight as evi-

dence of lack of clearance. One can never see a forest

by confining the sight to a single tree or a series of

single trees. Apart from the direct denial of clearance

as discussed above, we have not argued and do not argue

that any one of the circumstances considered separately

in a vacuum would be sufficient to prove Eastern was

not cleared. We do urge that their combined effect coupled

with the forceful and substantial Shaw testimony unques-

tionably raised a substantial issue for the exclusive fact

finder—the jury—as to whether an impeached and con-

tradicted Tigner was to be believed in his uneorroborated

word that he had cleared Eastern to land.

With respect to Eastern heing late, we never suggested

it was any more than circumstantial evidence to be con-

sidered by the jury with other evidence on the clearance

issue, just as in automobile negligence cases it has al-

21

ways been considered relevant and probative that the

person charged with speeding was late for an appoint-

ment, Thus Eastern’s lateness was a circumstance which,

though not of itself proof of lack of clearance, was one

of the ‘‘separate strands of circumstances’? which when

added to others gathered probative force.

Of similar probative value and effect—though, as noted,

completely overlooked by the court below—was the Kirby

testimony (see fn. 5 supra) and the fact that not one of

the other seven controllers in the tower (including the

three—Union, Davis and Rydstrom—who testified) cor-

roborated Tigner’s alleged clearance to land, Yet those

who testified did allegedly hear and testified in minute

detail with respect to all of the other of Tigner’s alleged

communications during the critical period.

II.

The Court of Appeals Erroneously Concluded That the

Jury Musi Accept the Uncontradicted Testimony of A

Witness Whose Credibility Had Been Substantially

Assailed; That Decision Conflicts With Decisions

of This Court and Several Circuits.

After having improperly discarded all opposing testi-

mony, the court below held that the jury was bound to

accept Tigner’s word, that a jury is required to believe

the uncontradicted assertion of an interested witness

whose credibility has been substantially assailed. How-

ever, opinions of this Court, and the Cirenits and state

courts demonstrate that where, as here, a witness has

an obvious interest in the outcome of the case and his

general credibility has heen seriously and substantially

opened to question heeanse of impeachment, contradiction

and self contradiction on other material facets of his

testinony—then any and all of his testimony, whether

or not directly contradicted, is necessarily to be passed

upon by the jury.

si

er

EN EPO, EL

ROE Dee

22

The settled rule that the cre ibility of witnesses is for

the jury applies even to uncon‘ radicted testimer. Thus,

in Quock Ting v. United Stai s. 140 U. S. 417, 35 L. ed,

501 (1891), a deportation ce-2, where the ‘rial court dis-

believed the uncontradicted testimony of the petitioner

and his father who swore that the petitioner was born in

the United States, this Court said:

“Undoubtedly, as a pa rule, positive testimony

as to a particular fact, uncontradicted by anyone,

should control the decision of the court; but that

rule admits of many exceptions. There may be such

an inherent improbability in the statements of a

witness to induce the court or jury to disregard his

evidence, even in the absence of any direct conflict-

ing testimony. He may be contradicted by the facts

he states as completely as by direct adverse testi-

mony; and there may be so many omissions in his

account of particular transactions, or of his own

conduct, as to discredit his whole story. His manner,

too, of testifying may give rise to doubts of his sin-

cerity, and create the impression that he is giving

a wrong coloring to material facts. All these things

may properly be considered in determining the

weight which should be given to his statements,

although there be no adverse verbal testimony ad-

duced. (Emphasis added.)*

Similarly in Sonnentheil v. Christian Moerlein Brew-

ing Co., 172 U. S. 401, 408 (1898), where, in an attach-

8 Citing Eiwood v. Western Union, 45 N. Y. 549 (1871) where,

2s to the uncontradicted testimony of an employee of a party, the

court said:

“The witnesses, though unimpeached, may have such an in-

terest in the question at issue as to affect their credibility .. . .

And furthermore, it is often a difficult question to decide

when a witness is, in a lega! sense, uncontradicted. In such

cases, courts and juries are not bound to refrain from exer-

cising their judgment and to blindly adopt the statements of

the witness, for the simple reason that no other witness has

denied them, and that the character of the witness is not

impeached .. . . Without imputing a want of truthfulness to

these witnesses, we think that their relation to the subject

23

ment suit, there was uncontradicted testimony by the

assignees of a prior effective assignment of the goods

sought to be attached, the trial court’s submission of

this issue to the jury was upheld by the Court which

stated:

« _ while the jury has no right to arbitrarily dis-

regard the positive testimony of unimpeached and

uncontradicted witnesses, the very courts that lay

down this rule qualify it by saying the mere fact that

the witness is interested in the result of the sutt ts

deemed sufficient to require the credibility of his

testimony to be submitted to the jury as a question

of fact.” (Emphasis added.)

Reaffirmed in Sartor v. Arkansas Natural Gas Corp.,

391 U. S. 620, 88 L. ed. 967 (1944). See also The Indien,

71 F. 2d 752 (C.C.A. 9, 1934) ; Ammons v. King, 133 F. 2d

970, 272 (C.C.A. 8, 1943) ; Rosenberg v. Baum, 153 F. 2d

10, 13, 14 (C.C.A. 10, 1946) ; Quon v. Niagra Fire Ins. Co.,

190 F. 2d 257, 259 (C.C.A. 9, 1951).

Judge Jerome Frank, whose public writings and opin-

ions certainly do not reflect any strong attachment to

the jury system in civil cases, said of the so-called un-

contradicted testimony rule (in an opinion in which

Judges Hand joined):

“Whether the so-called ‘uncontradicted testimony’

rule (the rule that such testimony is binding) has

been adopted by the Supreme Court we are not at

all sure. Sponsors of that rule point to Chesapeake

€ Ohio Ry. Co. v. Martin, 283 U. S. 209, 75 L. ed.

983. But there the Court was at pains to explain

that the testimony of the witness . . . was ‘so com-

pletely corroborated by the undisputed facts .. . as

to put it beyond the reach of a fair doubt.’ The

rule, absent such qualifications, has been rejected in

matter in controversy was of itself sufficient to take from

the court the right to dispose ox the case upon their [de-

fendant’s employee’s] evidence and to require that the jury

should pass upon evidence and to require that the jury should

pass upon the weight to be given to their statement.”

Gh Sa eth

“Re Rens Hen lal a Fe Ben

ork

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24

several states, and has little to commend it ration-

ally. For the demeanor of an orally-testifying wit-

ness is ‘always assumed to be in evidence... .

The liar’s story may seem uncontradicted to one

who merely reads it, yet it may be ‘contradicted’ in

the trial court by his manner, his intonations, his

grimaces, his gestures and the like—all matters

which ‘cold print does not preserve’ and which con-

stitute ‘lost evidence’ so far as an upper court is

concerned. For such a court, it has been said, even

if it were called a ‘rehearing court,’ is not a ‘resee-

ing court’... ‘The best and most accurate record is

like a dehydrated peach; it has neither the substance

nor the flavor of the fruit before it was dried.’ It

resembles a pressed flower. The witness’ demeanor,

not apparent in the record, may alone have ‘im-

peached’ him. The alleged ‘rule’, if taken literally,

would return us to the practice of ‘trial by deposi-

tion’, which common-law procedure rejected and

which, in recent years, has been rejected in federal

non-common law trials as well.”

“. .. Demeanor, to be sure, is no infallible guide,

to reliability of testimony; yet, as matters now

stand, it is one of the best guides available.”’

“. .. assume, arguendo, that the rule prevails in

the federal courts . . . among the exceptions to the

rule is this: It is inapposite if the witness has an

‘interest’.” **

The peculiar and exclusive advantage of the trier of

fact to observe and consider the demeanor of the wit-

ness in weighing the probative value of his testimony was

also recognized in Elzig v. Gudwangen, 91 F. 2d 434, 440

(C.C.A. 8, 1937) holding that the defendant’s uncontra-

dicted testimony as to the position of the wheel of his

truck with relation to the shoulder of the road should

go to the jury in a negligence action.

See also People v. Tuczskewiiz, 149 N. Y. 240, 48 N. FE.

548 (1896) stating:

*® Broadcast Music, Inc. v. Havana Madrid Restaurant Corp., 175

F. 2d. 77, 79-81 (C.C.A. 2, 1949).

25

“A witness may be discredited even when not con-

tradicted . . . . His manner upon the witness stand,

his halting and quibbling in answering questions,

may satisfy both the court and the jury that he is

swearing falsely and yet no witness may be in exist-

ence that could contradict his testimony. He may

have told a probable story, and yet it may have been

false and rendered incredible by reason of his char-

acter and manner.”

To the same effect is M.L.R.B. v. Howell Chevrolet Co.,

204

F. 2d 79, 86. (C.C.A. 9, 1953) stating:

“[Respondent] says: ‘It is well settled law that

where a witness’ testimony is not contradicted, a

trier has no right to refuse to accept it.” This is an

ancient fallacy which somehow persists despite the

courts’ numerous rulings to the contrary. It over-

looks the significance of the carriage, behavior, bear-

ing, manner and appearance of a witness,—his de-

meanor,—when his testimony is given orally in the

presence of the trier of facts.”

In Dyer v. MacDougall, 201 F. 2d 260, 269 (C.C.A. 2,

1952) this thought was expressed by Judge Learned

Hand as follows:

“The words used are by no means all that we rely

on in making up our minds about the truth of a

question that arises in our ordinary affairs, and it

is abundantly settled that a jury is as little confined

to them as we are. They may, and indeed they

should, take into consideration the whole nexus of

sense impressions which they get from a witness.

This we have again and again declared, and has

rested our affirmance of findings of fact of a judge,

or of a jury, on the hypothesis that this part of the

evidence may have turned the scale. Moreover, such

evidence may satisfy the tribunal, not only that the

witness’ testimony is not true, but that the truth is

the opposite of his story; for the denial of one, who

has a motive to deny, may be uttered with such hesi-

tation, discomfort, arrogance or defiance, as to give

assurance that he is fabricating, and that, if he is,

TSE TSP RUTH IR RES CSE hor 4

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26

there is no alternative but to assume the truth of

what he denies.”

lf ever there were a case where record and non recoré

factors potentially bore on the credibility of testimony,

this is that case. Tigners’ interest and defense align-

ment were obvious. His job and air controller certificate

may well have depended on his giving an acceptable

account of his part in the accident. If he were to retain

his job, he had to continue to work with the regular com-

mercial airlines (including Eastern) using the field. If

Bridoux had died—which, shortly after the accident when

Tigner’s story was framed, was undoubtedly anticipated—

the easiest way out for Tigner was to put the whole

blame on Bridoux and exculpate Eastern. And even if

Bridoux survived, Tigner undoubtedly thought his word

would be accepted over that of a foreign pilot. More-

over, as an employee of the other defendant, the United

States, Tigner was required to explain why he did not

divert the Eastern plane earlier if he had not cleared it

to land. Finally, when the C.A.B. investigation began,

Tigner may well have erroneously stated that he cleared

Eastern to land and thereafter feared to change that

statement because of his concern whether he would then

be believed in anything and whether he would lose his

job.

But beyond the matter of his evident interest, Tigner’s

demeanor and manner of testifying was of vital impor-

tanee. Can any reviewing court say that the jury could

not have considered his total inability to explain all of

the details surrounding the alleged clearance message and

his numerous self-contradictory statements as to where

the Eastern plane then was? From the cold record can

any reviewing court describe Tigner’s gestures or facial

expressions when he stated he cleared Eastern? (an it

know whether he fidgeted or can it describe his intona-

tion?

nb NE syrup

27

Disregarding those decisions of this Court and lesser

courts noting that adherence to the jury system requires

that even uncontradicted testimony pass jury scrutiny

where serious questions of credibility have been raised,

the court below has further departed from its function

and invaded those of the jury.

CONCLUSION

The decision below is grounded upon an apparent in-

difference to the jury’s exclusive function and right to

judge credibility of witnesses and to weigh the probative

force of conflicting evidence and inferences. It represents

a gross and alarming departure from our constitutional

jury tradition which should be checked here before it

gets out of bounds. If the many families affected are to

be protected, if more than lip service to the jury system

is to be compelled, if appellate review of the legal suf-

ficiency of evidence to support a jury verdict is to be

kept in historically proper channels and if the fate of

litigants is not to be determined by a retrial before an

appellate jury of three—then the action of the Court of

Appeals must be reviewed and reversed here. Accord-

ingly, in the exercise of its supervisory jurisdiction, this

Court should grant the petition for a writ of certiorari.

Respectfully submitted,

Davin G. Bress

Suei_pon E. BERNSTEIN

1001 - 15th Street, N. W.

Washington, D. C.

Attorneys for Petitioners

Of Counsel:

Arvin L. NEWMYER

Jo V. Morean, Jr.

De A oe a Se AE

AP pe ESTE tail

Ow ronm TPO. ao

la

APPENDIX A

For Opinion and Judgment of United States Circuit

Court of Appeals for the District of Columbia Circuit

see Appendix A, la-41a and 42a-44a of Government Peti-

tion For a Writ of Certiorari entitled United States of

America, Petitioner v. Union Trust Company, et al.

Filed Feb 28 1955 Joseph W. Stewart, Clerk

UNITED STATES COURT OF APPEALS

for the District of Columbia Circuit

January Term, 1955

No. 11,991

Eastern Air Lines, Inc., Appellant,

v.

Union Trust Company, et al., Appellees

No. 11,992

Eastern Air Lines, Inc., Appellant,

v.

Union Trust Company, et al., Appellees

Before: Edgerton, Wilbur K. Miller and Fahy, Circuit

Judges, in Chambers.

Order

Upon consideration of appellees’ motion for enlarge-

ment of time to March 25, 1955 to file a petition for re-

hearing in bane or by the division which heard the cases,

to file a motion to clarify or modify judgments in the

event rehearing is denied, and to stay the mandate of

this Court, it is

ne een

8 Bs iden seGds< |

in bane or by the original divisio

cases, it is

2a

ORDERED by the Court that the time within which

a petition for rehearing in bane, or a petition for rehear-

ing, and the time for filing a motion to clarify or modify

the judgment be, and it is hereby, extended to March 24,

1955.

It is FURTHER ORDERED by the Court that the

issuance of the mandate of this Court be, and it is hereby,

stayed to and including March 24, 1955.

Per Curiam.

Dated: February 28 1955

Filed Apr 15 1955 Joseph W. Stewart, Clerk

UNITED STATES COURT OF APPEALS

for the District of Columbia Circuit

April Term, 1955

No. 11,991

Kastern Air Lines, Inc., Appellant,

v.

Union Trust Company, et al., Appellees

No. 11,992

Eastern Air Lines, Ine., Appellant,

v.

Union Trust Company, et al., Appellees

Before: Edgerton, Prettyman, Wilbur K. Miller, Baze-

lon, Fahy, Washington, Danaher and Bastian, Circuit

Judges, in Chambers.

Order

Upon consideration of appellees’ petition for a rehearing

n in the above entitled

3a

ORDERED by the Court that insofar as petition is

made for a rehearing in banc, the aforesaid petition be,

and it is hereby, denied.

Per Curiam.

Dated: April 15 1955

Chief Judge Stephens and Circuit Judge Bazelon did

not participate in the foregoing order.

Filed May 4 1955 Joseph W. Stewart, Clerk

UNITED STATES COURT OF APPEALS

for the District of Columbia Circuit

April Term, 1955

No. 11,991

Easter: Air Lines, Incorporated, Appellant,

v.

Union Trust Company, et al., Appellees

No. 11,992

Eastern Air Lines, Inc., Appellant,

v.

Union Trust Company, et al., Appellees

Before: Edgerton, Acting Chief Judge, Wilbur K. Mil-

ler and Fahy, Cireuit Judges, in Chambers.

Order

Upon consideration of appellees’ petition for rehearing

by the division which heard the above-entitled cases, it is

ORDERED by the Court that said petition for rehear-

ing be, and it is hereby, denied.

Per Curiam.

Dated: May 4 1955

4a

Filed Jun 24 1955 Joseph W. Stewart, Clerk

UNITED STATES COURT OF APPEALS

for the District of Columbia Circuit

April Term, 1955

No. 11,991

Eastern Air Lines, Inc., Appellant,

v.

Union Trust Company, et al., Appellees

No. 11,992

Eastern Air Lines, Inc., Appellant,

v.

Union Trust Company, et al., Appellees

Before: Edgerton, Wilbur K. Miller and Fahy, Circuit

Judges, in Chambers.

Order

Upon consideration of appellees’ motion for leave to

file a motion to clarify or modify judgments in the above

entitled cases, and it appearing that said motion to clarify

or modify judgments has been lodged with the Clerk, it is

ORDERED by the Court that the Clerk be, and he is

hereby, directed to file forthwith appellees’ motion to

clarify or modify judgments; and upon consideration of

appellees’ motion to clarify or modify judgments, and of

appellant’s reply and opposition thereto, it is

ORDERED by the Court that the opinion of this Court

entered herein February 8, 1955 be, and it is hereby,

amended by adding on Page 36 after the words ‘‘are re-

manded for a new trial” the following words, ‘‘restricted

ate

5a

to the issue of liability’’, so that the sentence as amended

will read:

“The judgments in Nos, 11,991 and 11,992 are reversed

and the cases are remanded for a new trial restricted to

the issue of liability’’.

It is FURTHER ORDERED by the Court that the

judgment entered herein February 8, 1955 be, and it is

hereby, amended by adding in Paragraph 4, in the fifth

line, after the word ‘‘trial’’, but before the semicolon,

the words, ‘‘restricted to the issue of liability’’, so that

said line as amended will read:

‘to the said District Court with directions to award a

new trial restricted to the issue of liability; and’’

Per Curiam.

Dated: June 24 1955

Filed Jul 12 1955 Joseph W. Stewart, Clerk

UNITED STATES COURT OF APPEALS

for the District of Columbia Circuit

Nos. 11,991 and 11,992

Eastern Air Lines, Inc., Appellant,

v.

Union Trust Company, et al., Appellees

Memorandum on Motion filed July 1, 1955, for Rehearing

on Appellees’ Motion to Clarify or to Modify Judgments.

Before Edgerton, Wilbur K. Miller and Fahy, Circuit

Judges.

Per Curtram: Pursuant to appellees’ motion to clarify

or to modify the judgments of reversal heretofore en-

tered in these cases, we entered an order June 24, 1955,

restricting the retrial in the United States District Court

to the issue of liability.

fae

6a

The appellant has moved that we reconsider that order

and amend it to permit the retrial of the issue as to the

situs of the collision, as well as the issue of liability. The

appellant argues that in our opinion of February 4, 1955,

we expressly refrained from either reviewing or deciding

the situs point. Eastern misconstrues our opinion in that

regard. We simply said we thought it unnecessary to dis-

cuss the issue concerning the situs of the collision and

the other grounds for reversal advanced by Eastern. We

had considered Eastern’s contention that the planes col-

lided in Virginia, instead of in the District of Columbia

as found by the jury, and had determined the jury’s find-

ing was sufficiently sustained by the evidence. We ad-

here to that view. Consequently the appellant’s motion

for rehearing concerning our order of June 24, 1955, is

denied.

Dated: July 12 1955

Filed Jul 12 1955 Joseph W. Stewart, Clerk

UNITED STATES COURT OF APPEALS

for the District of Columbia Circuit

April Term, 1955

No. 11,991-2

Eastern Air Lines, Inc., Appellant,

Vv.

Union Trust Company, et al., Appellees

Before: Edgerton, Chief Judge, Wilbur K. Miller and

Fahy, Cireuit Judges, in Chambers.

Order

Upon consideration of appellant’s motion for rehearing

on appellees’ motion to clarify and to modify judgments

in the above-entitled case, it is

igi.

7a

ORDERED by the Court that the aforesaid motion for

rehearing on appellees’ motion to clarify and modify

judgments be, and it is hereby, denied for the reasons

set forth in the memorandum of this Court filed herein

this day.

Per Curiam.

Dated: July 12 1955