Petition for Writ of Certiorari — Richards v. United States

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Othice-Supreme U.S

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— * * Cc ite I Ad < FEB 21 1961

JAMES N BROWNING. Clerk

IN THE ;

Supreme Court of the Uuited States

OcToBER * iM, 5 ip

—

Suzaxxe Tuomas Ricuarps, nee Wadlow, individually and = ™

for the use and benctit of. Desra Sue Ricnanbs, et al.,

Petitioners,

—against—

Unitep States or America, and AmMenican Atruines, INc

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Epwarp M. O’Brien and

Truman B. Rucker

Counsel for Petitioners

290 Madison Avenue

New York 17, N. Y.

INDEX

_ PAGE

Opinion Below ...................... FETE „„ 2

Basis of Jurisdiction .......................... 2

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Statement of Case ——T—V—F— 4

Holdings of Courts BeloW . 4

Reasons for Granting the Wrilt 9

1177. ĩͤ d 9

Reason 2 FFT 17

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APPENDIX

— A 8 27

Opinion of Court of Appeals 30

Judgment of Court of Appeals —ͤ— . q 39

Judgment of District Court 40

7 Table of Cases Cited

PAGE

Cook v. United States, 274 F. 2d 689 ..................... 10, 14

- 2

Dalehite v. United States, 346 U. S. 15 14, 18,24

Eastern Air Lines, Inc. v. Union Trust Company, 221

F. 2d 62 certiorari denied, 350 U. S. 911 10, 11, 14

Feres v. United States, 340 U. S. 135 14. 18, 24

„F. W. Woolworth Co. v. Todd, 204 Okl. 532. 24

Glus v. Brooklyn Eastern District Terminal, 359 U. S.

231 9

Hatahley v. United States, 351 U. S. 173 14

Hess v. United States, 259 F. 2d 285, rev’d on other

grounds, 361 U. S. 314 10, 12, 13, 14

Hoffman v. Blaski, 363 U. S. 335 8 9

Hunter v. Derby Foods, 110 F. 2d 970 25

Irvin v. United States, 148 F. Supp. 25 3

Landon v. United States, 197 F. 2d 128 14

Massachusetts Bonding & Insurance Co. v. United

States, 352 U. S. 128 me SS

Matland v. United States, —— F. 2d —— (CCH 7 Avi.

17,144) 16

Modla v. United States, 151 F. Supp. 198 15

Moran v. United States, 102 F. Supp. 275 : 15

Olson v. United States, 175 F. 2d 510 we 15

Osaka Shosen Kaisha Line v. United States, 300 U. 8.

98 1 17, 18

—

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Ps PAGE

Richards v. United States, —— F. 2d (Appendix,

———————————— —

State of Maryland, to use of Burkhagdt v. United

States, 165 JJ ͤ meatel ae iMenee =e, eneanereeaene 22, 25

United States v. Marshall, 230 F. 2d 183 ........ 10, 11, 12, 14

United States v. Schaefer Brewing Co., 356 U. S. 227. 10

United States v. Spelar, 338 U. S. 217 — 18, 19

Van Camp & Sons v. Am. Can Co., 278 U. S. 245 18

Voytas v. United States, 256 F. 9 — 10, 11, 14

Zaccari v. United States, 130 F. Supp. 50 „51 (L. Md.

—:!. ĩͤðây.,. c — 15

Statutes

Federal Tort Claims Act, 28 U. S. C.: a :

. T 2, 17, 22, 23, 27 ,

Section 1402 (-) .. 2, 15, 17, 27

Section 2401 (b) T 22

1 A —— 8 22

i Oe ͤ— . 2, 17, 27, 28

T—T—T—T—T—TT—T—T—T— TT cB 2, 17, 22, 28

Section 2676 i bia oan — 17

ee 17, 22

I IE ose cn, 17

» . PAGE

Missouri Wrongful Death Statute, Ch. 537, V. A. Mo. S.

Sec. 537.080, R. S. 1939, Sec. 368 2, 29

Oklahoma Wrongful Death Statute, 12 Okl. St. Ann.

Sec. 1051-1054 2, 28, 29

Miscellaneous

Committee Print of a Committee Revision of H.R. 5373,

77th Cong., 2d Sess., Secs. 201, 301 55

Goodrich, Conflict of Laws, 263-64 (1949)

Goodrich, Yielding Place to New: Rest Versus Motion

in the Conflict of Laws, 50 Col. L. Rev. 881 (1950)

Hearings before House Committee on the Judiciary,

77th Cong., 2d Sess., on H.R. 5373 and H.R. 6463

(Memorandum with appendizes, for the use of the

Committee on the Judiciary, Explanatory of Commit-

tee Print of H.R. 3373, pp. 37-46)

Hearings before the House Committee on the Judiciary,

77th Cong., 2d Sess., on H.R. 5373 and H.R. 6463 ....

pp. 1-6

—ͤ]— —

——— —2 ne

TRON OE PE EIR A ES eee PPP

PAGE

H.R. 5299, 77th Cong., Ist Sess., See. 2011 19

H.R. 5373, 77th Cong., Ist Sess., See. 2011 19

Leflar, Choice of Law; Torts: Current Trends, 6 Vand. :

— — T 15

Memorandum, with appendixes, for the use of the Com-

mittee on the Judiciary—Explanatory of Committee

Print of H.R. 5373, pp. 42-43 U cc cccce seen 19

Restatement, Conflict of Laws, §§377-78 (193) 25

S. 2690, 76th Cong., Ist Sess., See. 2011 18, 19

In THE

Supreme Court of the United States

Octoser Term, 1961

Suzanne Tuomas Ricwarps, nee Wadlow, individually and

for the use and benefit of Depra Sve RIchanbs, ef al.,

4 Petitioners,

—against—

Unitep States or America, and American. AlRIAx ES, INc.,

Respondents.

—

PETITION FOR WRIT Or CERTIORARI TO THE

UNITED STATES COBRT OF APPEALS |

fon THE TENTH CIRCUIT

To the Honorable, the Chief Justice and Associated Jus-

tices of the Supreme Court of the United States:

Suzanne Thomas Richards, Harvey Baruck, Clarine Fa-

rough, Bernice L. Maupin, Margaret J. Howe, Elizabeth

R. Cross, Therese B. Akin, Althea S. Gates, Ruth Jean

Carr-Harris, Anna Mae O’Neal, Margaret Emma Bar-

ron, Myra Fields, Virginia Hobson, ‘and Josephine M.

Schmyser, respectfully pray for the issuance of a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit, entered herein

November 25, 1960, affirming by a divided court, the judg-

ment of the United States District Court for the Northern

District of Oklahoma dismissing their respective com-

plaints with prejudice on the ground that appellants had

no actionable claims against the United States of America.

A ‘

Opinion Below

No opinion was written by the District Court in dis-

missing the complaints. The judgment of the District

Court was entered and filed January 18, 1960, and was

based upon findings of fact, conclusions of law and order

of judgment made by the Court. The opinion of the Court

of Appeals, affirming the judgment of the District Court

is not officially reported as yet.

Basis of Jurisdiction

The jurisdiction of this Court is invoked under 28 C. S. C.

$1254 (1), to review a judgment of the Court of Appeals

dated and entered November 25, 1960, affirming the judg-

ment of the District Court dismissing the complaints in

the fourteen actions with prejudice.

Statutes Involved

The pertinent provisions of the Federal Tort Claims

Act, 28 U. S. C. Sections 1346(b), 1402(b), 2672, 2674,

the Oklahoma Wrongful Death Statute, 12 Okl. St. Ann.

Section 1053, and the Missouri Wrongful Death Statute,

Chapter 537, V. A. Mo. S. Section 537.080 (R.S. 1939, Sec.

3653), are set forth in the Appendix, infra, pp. 27-29.

‘

—— ee

i r — a RIOD PTOI BRA CFE OS POLES FI — 222 22 *

The Questions Involved

Question I

Do the provisions of the Federal Tort Claims Act, that

the liability of the United States shall be determined in

accordance with the law of the place where the negligent

act or omission oceurs, require the Federal District Court

sitting in Oklahoma to apply the Oklahoma wrongful death

statute to petitioners’ wrongful death claims against the

United States of America, where the deaths of decedents

within the State of Missouri were caused by the negligent

acts and omissions of the Government’s employees which

occurred within the State of Oklahoma?

Question 2

Although the liability of à private person in a wrongful

death action brought against him in the courts of Okla-

homa to recover damages for a wrongful death which oe-

curred in Missouri as a result of his negligent acts and

omissions which occurred in Oklahoma would be deter-

mined by the law of Missouri because (1) the Oklahoma

conflict of laws rule would require such reference and (2)

the Oklahoma wrongful death statute has no extraterri-

torial application to a death which occurs in Missouri,

should not the courts below have been required by the

provisions of the Federal Tort Claims Act to apply the

Oklahoma wrongful death statute, under the same eireum-

stances, to determine the liability /of the United States of

America in actions coinmenced against it pursuant to the

provisions of the Tort Claims Act?

Statement of Case

On August 4, 1955, the decedents were riding on a reg-

ularly scheduled passenger flight of American Airlines,

Inc. between Tulsa, Oklahoma and New York City. The

airplane crashed in the State of Missouri, killing everyone

on board. ay

Fourteen separate actions were commenced by the per-

sonal representatives or the widows of the decedents

against th United States of America in the United States

District Court for the Northern District of Oklahoma. The

actions were brought pursuant to the provisions of the

Federal Tort Claims Act, 28 U. S. C. $§1346(b), 1402(b)

and 2671-2680. Jurisdiction of the District Court was based

upon 28 U. S. C. §1346(b). Petitioners sought to recover

damages under the Oklahoma Wrongful Death Statute,

Title 12 Okl. Stat. Ann. 51051-1054, for the wrongful

deaths of their respective decedents. No cause of action

or claim was pleaded in the complaints which sought re-

covery under the wrongful death statute of Missouri.

In their complaints, the petitioners alleged that the

United States was negligent, acting through its Civil Aero-

nautics Administration employees, in permitting and fail-

ing to prevent and prohibit unsafe inspection, maintenance

and overhaul procedures engaged in by American Airlines

at American’s overhaul depot in Tulsa, Oklah ; that as

a result of such negligence, an unairworthy cylinder was

installed on one of the engines of the airplane at the over-

haul depot; that during the airplane’s flight the unair-

worthy cylinder failed, causing the crash of the airplane

and the deaths of petitioners’ decedents. ‘

The respondent, United States of America, denied the

allegations of negligence and liability and alleged, inter

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alia, that certain of the petitioners were barred from re-

covery by reason of payments made to them by American

Airlines and releases given to that company.’ The United rae

States filed a third party complaint against respondent

American Airlines, asserting a right of indemnity in the

event a recovery was made against the United States.

Respondent, American Airlines, Inc., denied that peti-

tioners’ complaints stated a claim against the United States

upon which relief could be granted; and alleged, inter alia,

that petitioners’ elaims were barred by the Missouri stat-

ute of limitations of one year and that certain of the peti-

tioners were barred from recovery against the United

States by reason of releases given to American Airlines.’

The actions were thereafter consolidated for trial.

At pre-trial conferences the District Court determined

that petitioners had no actionable claims against the United

States of America. In accordance with its findings of

fact and conclusions of law, the District Court entered its

order of Judgment, dismissing the complaints in all four-

1 Prior to the commencement of these actions in the District Court,

petitioners Richards, Baruck, Maupin, Howe, O’Neal and Hobson

. settled their claims against American under the Missouri death

statute and gavé their releases in satisfaction thereof. Decedents

Barron and Gates were employees of American, therefor. their

widows received workmen’s compensation payments in lieu of any

claim they might have otherwise had against American under the

Missouri death statute. Petitioners Akin, Fields, Cross and Carr-

Harris each received payment of the maximum amount permitted

under the Missouri death statute, $15,000, by an order of distribu-

tion of the District Court of such amounts which had been previ-

ously deposited in the registry of the District Court by American.

Petitioners Farough and Schmyser did not enter into any settle-

ment agreement with American and since they did not commence

any action against American within the time allowed under the

Missouri death statute, any claim they might have had against

American under Missouri law was time barred.

Since petitioners’ claims against American under the Missouri » .

death statute have been settled in twelve actions and time barred

in two actions, they concedé that they have no actionable claims

against the United States under the Missouri death statute.

———ͤ «%“Pn 4 —

teen actions with prejudice. Upon appeal, the Court of

Appeals for the Tenth Circuit, with one Judge dissenting,

affirmed the judgment of the District Court.

Holdings of the Courts Below

The crux of the District Court’s determination that pe-

titioners had no actionable claim against the United States

is set forth in Paragraphs II to VII in its conclusions of

law. Because of their conciseness and brevity, they are

reproduced in their entirety: :

AI. In the actions by plaintiffs against the United States

of America, the provisions of the Federal Tort

Claims Act, 28 U. S. C. 1346(b) et seq. are appli-

cable.

III. It is unneéessary 20 decide whether the law appli-

cable to the plaintiffs’ claims against the United

States of America is that of the State of Missouri 7

or the State of Oklahoma, for in either ease the

plaintiffs have no actionable claims against the

United States of America.

IV. There is no cause of action under the Oklahoma

Wrongful Death Statute where an act or omission

occurring in Oklahoma results in injury and death

in the State of Missouri.

. Oklahoma law is applicable under the Federal

Tort Claims Act, then the general iaw of Oklahoma, —

ineluding the conflicts of law rule, is applicable

thereunder. | |

VI. The Oklahoma conflicts of law rule requires that

in the cireumstances of these cases the plaintiffs’

claims be determinable by reference to the Missouri

Wrongful Death Statute.

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VII. The plaintiffs have no further claims under the Mis-

souri Wrongful Death Statute for the reason that

they have already received full satisfaction for any

claims they might have thereunder.”

Upon appeal to the Court of Appeals, petitioners argued

that the District Court was in error in the following re-

spects: (1) The language of the Tort Claims Act is clear

and explicit. If Congress had intended to measure the

Government’s liability in accordance with the law of the

place of the tort, death, wrong, or injury, it could easily

have said so; however, it did not. In applying the law of

the place of death, Missouri, to- petitioners' claims, the

Dist#ict Court completely negated the ordinary meaning

of the language actually used by Congress; (2) Since the

jurisdiction of the District Court was based upon a fed-

eral statute containing its own-choice of law rule, the

District Court was in error in applying the Oklahoma con-

flict of laws rule. Its application o& the Oklahoma conflicts

rule defeated the congressional mandate and intent that

the liability of the Goyernment should be determined in

accordance with the law of the state where the negligent

act or omission occurred; (3) In providing claimants a

remedy against the Government, Congress was competent

to impose any condition on that remedy it desired, in-

cluding its own choice of law rule to determine the Gov-

ernment’s liability. The choice of law rule specified by

Congress in the Act does not change, in any manner, the

established law of the states with regard to the applica-

tion in wrongful death actions of the states’ conflict of

laws rules or the extraterritorial application of its death

statutes, because the choice of law set forth by Congress

in the Tort Claims Act can only have application to actions

commenced against the United States of America.

The Court of Appeals, in affirming by a divided court,

determined that the Oklahoma wrongful death statute

could not be applied in the action because the deaths oc-

curred in another state; since the wrongful deaths pleaded

in the complaints occurred in Missouri, the Court was

committed to the rule that where wrongful death occurs

in one state and an action for damages is instituted in

another, the law of the state in which the wrongful death

occurred—not that in which the action was instituted—

controls in respect to the maximum amount of damages

which may be recovered.”; and since petitioners were paid

the maximum amount under the Missouri Wrongful Death

Statute, such payment constituted full satisfaction for the

wrongful deaths, the causes of action under the law of

Missouri became extinguished, and recovery against the

tort feasor or tort feasors was barred.

The dissenting opinion of Chief Judge Murrah stated

that the inapplicability of the Oklahoma wrongful death

statute to deaths occurring outside of the state does not

preclude the right to recover in actiens against the United

States under the Tort Claims Act, even though a private

person would not be liable according to Oklahoma law

under the same circumstances; since few, if any, state

wrongful death statutes have any extraterritorial effect,

Congress could not have intended that the right to recover

in multi-state tort situations be dependent upon the extra-

territorial effects of the wrongful death statute of the place

where the negligent act or omission occurred; that resort

to the Oklahoma conflict of laws rule could lead to a situa-

tion in which the law of two states would each refer to the

law of the other in determining the liability of the Gov-

ernment; that Congress intended to avoid such a situation

by providing its own rule as to the proper law to be

applied in such cases, that is, the Court should look to

the state of the negligent act and no further; if Congress

Be OE ES SOR EY SR EI ee TE HE EE En BRE PE EEN PIER B® eee rn

intended otherwise, it could have simply omitted from the

language of the Act. the words “in accordance with the

law of the place where the act or omission occurred”; by

the inclusion of those words, Congress prescribed the law

and the conditions under which the Government would be-

come liable.

Reasons for Granting the Writ

The Court of Appeals has decided an important ques-

tion of law arising under a Federal Statute in conflict

with decisions of other Courts of Appeal on the same

matter. The question decided below has not been, but

should be, decided by this Court.

The question before the Courts below was: What law

did Congress intend to be applied to determine the lia-

bility of the United States in wrongful death actions com-

“. menced against it pursuant to the provisions of the Federal

Tort Claims Act, where the wrongful death oecurring with-

in the territory of one state is caused by the negligent act

or omission of the Government's employees occurring with-

in the territory of another state, the law of the state where

the death occurs or the law of the state where the negligent

act or omission occurs?

This important and recurring’ question pertaining to the

construction of the Federal Tort Claims Act* has been de-

eided by the circuits in a conflicting and confusing* manner

* Glus v. Brooklyn Eastern District. Terminal, 359 U.S. 231, 232

(1959).

* Massachusetts Bonding & Insurance Co. v. United States, 352

U.S. 128, 130 (1956).

* Hoffman v. Blaski, 363 U.S. 335, 339 n. 8 (1960).

and without any of the uniformity of application‘ this fed-

eral statute requires. In the circuits which have passed

on this question since the Act was passed by Congress in

1946, the decisiens of the Seventh and District of Columbia

Cireuit courte fii two cases’ are in direct conflict with the

decisions of the Ninth and Tenth circuit courts in three

cases.’ In two of these cases the dissenting judges expressly

rejected the majority’s holding on this question.“

The first case to be decided under the choice-of-law pro-

vision in the Federa! Tort Claims Act was Eastern Air

Lines, Inc. v. Union Trust Co., 221 F. 2d 62 (D. C. Cir.

1955) cert den., 350 U. S. 911 (1955). In that ease the negli-

gent acts and omissions of the Government's employees

located in the C. A. A. control tower in the State of Vir-

ginia resulted in the collision of two airplanes and the

deaths of passengers in the District of Columbia. The court

seen States v. Schaefer Brewing Co., 356 U.S. 227, 230

(1958).

* Voytas v. United States, 256 F. 2d 786 (7th Cir. 1958); and

Eastern Air Lines, Ine. v. Union Trust Co., 221 F. 2d 62 (D.C.

Cir. 1955), cert. den., 350 U.S. 911 (1955).

* Tinited States v. Marshall, 230 F. 2d 183 (9th Cir. 1956) ; Hess

v. United States, 259 F. 2d 285 (9th Cir. 1958), rev'd on other

grounds, 361 U.S. 314 (1960) ; and Richards v. United States.

F. 24 —— (10th Cir. November 25, 1960), Appendix p. 30, infra.

Eastern Air Lines, Inc. v. Union Trust Co., 221 F. 2d at 80

(Judge Miller writing for the Court dissented therein on the

r Richards v. United

States, —— F. 2d ——, Appendix, i, infra (Chief Judge

held that since Congress provided in explieit terms for the

Government’s liability to be measured under the law of the

place where its negligent employee's act or omission oc-

eurred, the law of Virginia should be applied.“ In his

dissent on this point, Judge Miller interpreted the words

“act or omission” to include the consequences of such acts

or omission and since the consequences of the acts or omis-

sions were the deaths occurring in the District of Columbia,

that law should have been applied. . a

The District of Columbia Circuit’s holding was followed

in Voytas v. United States, 256 F. 2d 786 (7th Cir. 1958).

There the alleged negligent acts and omissions occurfed in

two states, Virginia and Illinois, and the injury and death

resulting from such acts and omissions occurred in Illinois.

A soldier stole some explosives fron. his camp in Virginia

and, while on leave in Illinois, he gave them to a voung boy

who used them in a manner which resulted in the death of

plaintiff's son. Plaintiff alleged negligent acts and omis-

sions of 2 (1) in Virginia, in the handling,

transporting, storing and guarding of the explosives and

in failing to discover that the soldier had the explosives

in his possession prior to going on leave, and (2) in Illinois,

in the soldier’s giving the explosives to the boy. The court

looked to the law of Illinois to determine the liability of

the Government for the soldier’s acts in that state, and it

looked to the law of Virginia to determine the hgbility of

the Government for its acts and omissions in Virginia.

A contrary view of the choi¢é-of-iaw provisions in the Act

was first taken by the Ninth Cireuit in United States v.

Marshall, 230 F. 2d 183 (9th Cir. 1956). Plaintiff alleged

that the negligent acts and omissions of the Government’s

% The petition of the Union Trust Compar for a writ of certi-

orari to review this holding was denied, Union Trust Co. v. United

States, 350 U.S. 911 (1955).

employees in loading, labelling and shipping containers of

compressed gas, which occurred in the State of Utah, re-

sulted in the explosion of these containers and his injuries

in the State of Idaho. The court held that the law of Idaho

applied because the words in the Tort Claims Act meant the

place where the act or omission “became operative, directly

causing the injury aud not the places where the negligence

existed but was then inoperative.” “

Two years later, the Ninth Circuit reaffirmed this view

in Hess v. United States, 259 F. 2d 285 (9th Cir. 1958),

rev'd on other grounds, 361 U. S. 314 (1960). There the

appellant conceded that because the decedent’s death oc-

curred in the navigable waters of the Columbia River, the

general maritime law woald apply the wrongful death stat-

ute of Oregon to determine the liability of a private de-

fendant. However, appellant contended since the Tort

Claims Act makes the Government liable in accordance with

the law of the place where the act or omission occurred and

the negligent acts of the Government occurred on the dam

which is an extension of the Oregon land, the court should

apply the Employers’ Liability Law of Oregon, as that

is the law that would be applied against a private defendant

for negligence occurring on the land in that state. The

court rejected appellant's contention and the holding of the

Union Trust case on this issue. Instead, it relied on its

previous copstruction of the language in the Tort Claims

Act as set forth in the Marshall case. The court also held

that the law of the state to be applied is not limited to the

* Although this Court stated in Hess, 361 U.S. at 318 u. 7, that

Te ee DOP ER 23 1 BOR — 2p Reyna) Oe DTH — — ar — — * P K oe

law having direct reference to tort liability. It ineludes,

also, the state’s conflict of laws as in diversity cases.”

The Tenth Circuit, in the instant litigation, is the latest

court to consider this question, Richards v. United States,

— F. 2d (10th Cir. November 25, 1960)"* In ad-

dition to applying the Oklahoma conflict of laws rule, the

court gave a new reason for avoiding the application of the

Oklahoma death statute to petitioners’ claims. The court

held that the Oklahoma wrongful death statute has no

extraterritorial effect and that it cannot be applied to ac-

tions brought in the courts of Oklahoma for wrongful death

occurring outside that state. The dissenting judge was of

the opinion that Congress avoided the anomaly which re-

sults from the majority view by providing its own choice-

of-law rule in the Tort Ciaims Act. The dissent stated that

the majority view in Union Trust should have been fol-

lowed by applying the Oktahoma wrongful death statute.

There is, therefore, not only a conflict in the circuit courts

on this multi-state tort question, meluding the internal

conflict in two of the courts in which dissents were filed,

but also faur separate theories expressed by these courts

as to what Congress intended when it stated in the Act

that the Government would be hable as if a private person

“in accordance with the law of the place where the act or

omission occurred.” These four theories can be stated

as follows:

(1) By use of the words “in accordance with the law of

the place where the act or omission occurred,” Con-

gress intended to have the Government's liability

determined in accordance with the local or internal

259 F. 2d at 291.

Appendix. pp. 30-38, infra.

law of the state in which the negligent employee

was located at the time he was negligent ;”

(2) The law of the state where the act or omission oc-

curred refers to the law of the state where those acts

or omissions became operative directly . the

injury;

(3) That reference to at Jaw of the state where the act

er omission occur includes reference to the en-

tire law of that state, ineluding its conflict of laws

rule gr 3

(4) If the law of the state where the negligent act or

omissién occurred does not apply its wrongful death

statute to actions brought in its courts for wrongful

death occurring outside that state, such law cannot

Eastern Air Lines, Inc. v. Union Trust Co., 221 F. 2d 62, 80;

Voytas v. United States, 256 F. 2d 786, 788-790; Richards v.

United States, —— F. 2d ——, Appendix, infra, p. 37 (Murrah,

C. J., dissenting). See also, Dalehite v. United States, 346 U.S.

15, 52-53 (1953) (Jackson, J., dissenting); Hatahley v. United

ma — U.S. 173, 182; Feres v. United States, 340 U.S. 135,

( )

United States v. Marshall, 230 F. 2d 183, 187; Hess v. United

States, 259 F. 2d 285, 290, rev’d on other grounds, 361 U.S. 314;

Eastern Air Lines, Inc. v. Union Trust Co., 221 F. 24 62, 80

(Miller, J., dissenting in part). :

1 Hess v. United =a 259 F. 2d at 291; Richards, v. United

States, Appendix, pp. 30-38, infra. See Cook v. United States,

274 F. 2d 689, 692 (Magruder, J., dissenting). See also, Landon

v. United States, 197 F. 2d 128 (2d Cir. 1952). In the Landon

case the negligent act and injury occurred in the same state. In

his action in the New York District Court, plaintiff recovered for

loas of earnings and hospital expenses, although these were paid

by plaintiff's employer under an insurance contract. Under New

York law losses compensated by a third party are not allowable

as damages the defendant. The court looked to the whole

ion of New York, including its conflict of laws rule and determined

that New York would look to the law of New Jersey where plaintiff

was employed and where the insurance contract was to be per-

formed. Since New Jersey allowed suth recovery in tort actions,

the judgment was affirmed.

- *

. AEP CIE IEE p ⁵— LIA ĩ˙ ͤ w ]⅛˙ GEILE REL IDA ENG IOREDE GEE Be EEE ODD EPA RIT IS

be applied to determine the liability of the Gov-

ernment.”

Those few authorities who have written on this subject

have not offered any solution to this complex multi-state

tort problem.“ In the cases decided by the district courts

little can be obtained to offer a solution to the problem,

because while the courts acknowledge that the law of the

place of the negligent act or omission is applied, the rule is

almost always applied to a case in which the negligent act

or omission and the injury occur in the same state.”

It is noteworthy that petitioners commenced their actions

against the United States, in accordance with venue provi-

sions of the Act,” in the Northern District of Oklahoma,

the judicial district wherein the act or omission complained

of occurred. If the petitioners had exercised the option set

forth in that venue statute and commenced their respective

actions in the judicial district where each resided, at least

three of them“ would have had the law of Oklahoma applied

18 Richards v. United States, Appendix, pp. 30, 35, infra.

1 Goodrich, Yielding Place to New: Rest Versus Motion in the

Conflict of Laws, 50 Col. L. Rev. 881, 894-895 (1950) ; Leflar,

Choice of Law; Torts: Current Trends, 6 Vand. L. Rev. 447, 448

> (1953). It is noteworthy that Judge Goodrich has not received

any authoritative answer” from the circuit courts during the

' ten-year period subsequent to the date of his article, 50 Col. L.

Rev. at 895 (1950). 5

20 F. 9., Moran v. United States, 102 F. Supp. 275 (D.C. Conn.

1951); Modla v. United States, 151 F. Supp. 198 (D. C. N. J. - 1957);

Irvin v. United States, 148 F. Supp. 25, 28 (S. D. S. D. 1957);

Zaccari v. United States, 130 F. Supp. 50, 51 (D. Md. 1955). See

also, Olson v. United States, 175 F. 2d 510 (8th Cir. 1949).

u 28 U.S.C. § 1402 (b).

22 Petitioners Baruck and O'Neal reside in Illinois and petitioner

Howe is a resident of Wisconsin. The district courts of these

states are within the Seventh Judicial Circuit and presumably

governed by the Voytas case, supra, note 15.

eR — ů

to determine the liability of the United States; ut least two

of them,“ and possibly two others“ would have had the

law of Missouri applied in their cases. Thus, the evil of

“forum shopping” is encouraged because of the confusion

displayed by the circuit courts in its attempts to determine

what Congress intended when it stated that the Govern-

ment would be liable as if a private person “in accordance

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

curred.” :

1240

Ark

infra.

views it stated in the Richards decision, Appendix, pp.

* Petitioners Cross and Fields are residents of New T.

£8

BEE

In a very recent decision of the Third Circuit, Matland v. United

States (3d Cir. January 10, 1961) (not officially reported yet, bu

the of

II.

The Courts below have decided an important question

of Federal Law in a way which is in conflict with the

language and plain meaning of the Act.

The Federal Tort Claims Act provides in explicit terms

that the liability of the Government for the negligence of its

employees shall be measured “in accordance with the law

of the place where the act ‘or omission occurréd.” (Em-

phasis added), 28 U. S. C. §1346(b). This phrase is re-

peated in section 1402(b), which provides that a Tort

Claims action may be prosecuted “only in the judicial dis-

trict where the plaintiff resides or wherein the act or omis-

sion complained of occurred.” (Emphasis added.) The

phrase is again used in 28 U. S. C. §2672, where Congress

authorizes administrative settlements of certain claims if

the United States is liable “in accordance with the law of

the place where the act or omission occurred.” (Emphasis

added.) It is used still again in 28 U. S. C. §2674, which

makes the United States liable for actual or compensatory

damages if “the law of the place where the act or omission

complained of” provides for only punitive damages. (Em-

phasis added.) Such words are also used in sections 2675

(a), 2676, 2680(a) and 2680(¢). The use of the same lan-

guage shows a deliberate and consistent intent on the part

of Congress to have the liability of the Government meas-

ured by the law of the place where its employees’ negligent

acts or omissions occur.

The basic objective in statutory construction is, of

course, to ascertain the legislative intent.“ There is no

better or more authoritative guidé to that meaning than the

language of the statute itself; “if the language be clear,

20 Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 101.

* 18 5

it is conclusive.” * “The words being clear, they are de-

cisive. There is nothing to construe.” It is difficult to con-

ceive of any more explicit or more precise language which

could possibly have been used by Congress to command

application of the law of the place of the negligent conduct

than the words which it did employ. If the congressional in-

tent had not been to measure the Government’s liability by

the law of the place where the act or omission occurred,

but instead was to measure such liability by the law of the

place where the tort resulted, it could easily have said so.

It could have said that the Gévernment shall be liable “in

accordance with the law of the place where the cause of

action arose” or “in accordanee with applicable state law”

or “under circumstances where the United States, if a

private person, would be liable to the claimant.” However,

it did not. Instead, it directed application of the law where

the act or omission occurred. ;

The legislative history and general congressional pur-

pose of the Tort Claims Act have been thoroughly con-

sidered in prior decisions of this Court.“ However, since

the specific choice-of-law provision contained in the Act

has not been previously considered by this Court, a sum-

mary of the legislative background pertaining to this pro-

vision will be useful. Most of the earlier tort cluims bills“

id. —

n Van Camp & Sons v. Am. Can Co., 278 U.S. 245, 253. a,

10 2 v. United States, 346 U.S. 15, 24-31; Feres v. United

States, 340 U. S. 184; United States v. Spelar, 338 U.S. 217. See

also, Hearings before House Committee on the Judiciary, 77th

Cong., 2d Sess., on H.R. 5373 and H.R. 6463 (Memorandum, with

_appendizes, for the use of the Committee on the Judiciary, Ex-

planatory of Committee Print of H.R. 5373, pp. 37-46).

E.g., S. 2690, 76th Cong., Ist Sess.’ introduced in 1939. This

bill proposed conferring jurisdiction on the courts to determine

claims for injury or death “caused by the negligent or wrongful

act or omission” of Goverpment employees (Sec. 201). It pro-

466

PPP

—

— ee Ming d — . IES POE ACO — AEN IE ID IE EAI

* 19

did not contain any language as to what law would govern

the liability of the Government. The shape of the Act was

i largely determined during its consideration in the course of

the 77th Congress.” The first time the “place where the act

occurred” language appeared was in the Committee Print

of a Committee revision of H.R. 5373, 77th Cong., 2d Sess.,

Secs. 201, 301. The Committee Reports are inclusive as to

the reason for the change, but one thing which is made clear

is that the words “place where the act or omission oc-

curred” mean the local law of the place where the negligent

act or omission occurred. Additional evidence of con- »

gressional intent to have local law. determine the Govern-

‘ment’s liability is clearly shown by an examination of a

statement made part of the hearings held by the House .

vided: “In respect to such claims the United States hall be liable

to the same extent and in the same. manner as a private individual

under like circumstances. .. . „ but it did not contain the signifi-

eant language now in § 1346 (b), viz.. “in accordance with the law

of the place where the a¢t or omission occurred.” The same was

true of H.R. 5299 and H.R. 5373, 77th Cong., Ist Sess., Sec. 201.

3° United States v. Spelar, 338 U.S. 217, 220 n. 9.

31 Indicating the difference between H.R. 5373 and the Com-

mittee’s revision, it is stated (Memorandum, with appendizes, for

the use of the Committee on the Judiciary—Ezplanatory of Com-

. mittee Print of H.R. 5373, pp. 42-43 [Emphasis added}) :

“The present bill follows closely the pattern of H.R. 7236 and

H.R. 5373, with two important exceptions. H.R. 7236 vested con-

current jurisdiction over tort claims in the United States district,

courts and the Court of Claims. The present bill vests exclusive

jurisdiction in the district courts sitting without a jury, with an

appeal from their decision to the Court of Claims...

“The other major difference is that the present bill subjects the

determination of the validity of the claim, the defenses thereto,

and the distribution of the recovery, to the law of the place where -

the delinquent act or omissior occurred. H.R. 7236 and H.R. 5373

may, as a matter of law, have embodied the first of these require-

ments to some extent, but the present bill states this explicitly,

and leaves to the local law the determination of certain matters

specifically treated in H.R. 7236 and H.R. 5373, such as the bene- /

ficiaries entitled to the recovery in death cases, the defense of

contributory negligence and the like. ‘

‘ {

. . P ERED. LOLA ID PL ELLIE ¾ ALLELE LILLE PGE TOOL ALLEL LIE EEE CD Gt

* 20 7

Committee on the Judiciary concerning this Act.“ The in-

tent to have local law govern liability is also supported by

the testimony of Assistant Attorney General Shea during

the hearing before the House Committee on the Judieiary

on H. R. 6463.“ The following colloquy appears on P. 30:

*? Hearings before the House Committee on the Judiciary, 77th

Cong., 2d Sess., on H.R. 5373 and H.R. 6463, pp. 24-30. In the

discussion of H.R. 6463 and comparison with H.R. 5373 it is stated

with respect to inistrative adjustments, p. 26: (2) Under

H.R. 5373, it ‘is probable that local law would determine the lia-

bility of the United States in suits on tort claims, but nothing is

said of administrative wettlements. H.R. 6463 makes it clear that

local law applies to the administrative determination of such claims

as well as to suits thereon. Uniformity in this respect is obviously

desirable. .

With respect to suits on tort claims it is stated, p. 26: “Local

law ia to govern not only the matter of liability but also such

defenses as contributory negligence, aggravation of damages, and

the like, and the beneficiaries e N of the re-

covery in death cases. .

In distinguishing between H.R. 6463 and H.R. 5373 with respect

: 3 of tort elaims against the United States, it is said,

: “{2) Conformance to local law is called for by H.R. 6463,

— 1 5 in respeet to the merits of the elaim, but also in respeet

of the availability of defenses and the distribution or disposition

of the recovery in cases of death. .

In showing how the bills differed with respect to exemptions of

Government liability, it is stated at p. 29: “(1) (ii) Claims aris-

ing in a foreign country have been exempted from H R. 6463,

whether or not the claimant is an alien. Since liability is to be

determined by the law of the situs of the wrongful act or omission,

it is wise tg restrict the bill to claims arising in this country.”

(Emphasis added.) It is noteworthy that the words “situs of the

tort” or “situs of the injury” were not used, but instead the place

of conduct language.

e Supra, note 32, pp. 30, 35. In a prior statement by Mr. Shea,

Hearings, etc., p. 9, in response to a question as to the venue of

such actions, he said, “Either where the claimant resides, or in the

locale of; the injury or damage.” This is the language which

apparently compelled Judge Miller in his partial dissent in the

Union Trust case, supra, to conclude that the consequence of the

negligent act or omission is to be considered in determining the

applicable law. However, Mr. Shea's subsequent testimony on

the applicable law during these hearings, pp. 30-36, the written

statement introduced at the Hearings, pp. 24-30, and ‘the bill itself

. 7 rr

“The Chairman. You may go ahead.

Mr. Shea. H.R. 6463, insofar as it relates to adminis-

trative settlements, permits the Federal agencies to

consider and determine claims for death, as well as for

personal injury and property damage, which was not

provided for in the other bill (H.R. 5373).

Under the other bill it was not specifically provided

that local law should govern, and certain express pro-

visions were made, for instance, as to distributions.

Mr. Celler. Do you need that? Is that necessary to

express it?

Mr. Shea. I should think the earlier bill would

probably be construed as applying the local tort law,

but this bill specifically covers it, leaving the distribu-

tion in case of death and so forth to the local law.

Mr. Celler. The only trouble is in future bills you

may have to put that precedent in. If you leave it out

the courts may not construe it should apply. I am only

thinking out loud to get your reaction.

Mr. Shea. This bill provides explicitly for the ap-

plication of local law.

The Chairman.. Go ahead.

Mr. Shea. . . Title III provides for suits in the

_~. district courts. It differs from the earlier bill in that

the liability of the United States in such cases is to be

the same as that of a private individual, subject to

the limitations ofthe bill and is to be reviewable by

the Court of Claims, which we have discussed. Con-

formance to local law is explicitly provided for here,

as it was not in the prior bill.”

as set forth on pp. 1-6 of the Hearings, make no further reference

to such language. In view of the numerous references to the “place

of conduct” language and “local law”, supra, nn. 31-32, it is sub-

mitted that the intent of Congress was to apply the law of the state

in which the conduct occurred.

It is submitted that such unambiguous and consistent

reference to law of the place where the negligent act or

omission occurs, evidences clear congressional intent that

the Government’t liability was intended to be determined in

accordance with that law.

The provision of 28 U. S. C. §2674, that the Government

shall be liable “in the same manner and to the same ex-

tent as.a private individual in like circumstances,” does

not lead to a contrary result. This is clear from the plain

meaning of the Act. Counsel for respondent, American Air-

lines, Inc., argued in the courts below that if Oklahoma law

were applied to determine the Government’s liability, such

liability would not be determined in the same manner and to

the same extent as a private individual in like circum-

stances: The Act, however, clearly dictates that the remedy

shall not, in every instance, be coextensive with that avail-

able against a private person. There are procedural and

substantive differences and departures from the common

law.“

These-restrietions and limitations upon the remedy con-

ferred by the Act, evidencing wide variances from the re-

lief obtainable against a private person is similar circum-

—

** Claimants can only sue in the federal courts, 5 1346 (b); the

Act prescribes its own period of limitations which may be shorter

or longer than that of the state in which the tort occurs, § 2401(b),

see State of Maryland, to use of Burkhardt v. United States, 165

F. 2d 869 (4th Cir. 1947); the claimant cannot obtain a trial by

jury under the Act, although he could against 4 private defendant,

§ 2402; he cannot obtain punitive damages under the Act, even

though state law may provide for it as against a private defendant,

§ 2674, see, Massachusetts Bonding & Insurance Co. v. United

States, 352 U.S. 128; he cannot obtain interest prior to judgment

under the Act, regardless of the state rule governing private de-

fendants, § 2674; the Act excludes claims based on numerous types

of torts for which a private person is answerable, § 2680; and the

Act exempts the Government from liability for claims based on

various types of activities, although a private person would be

liable in the same circumstances, § 2680.

stances, simply illustrate the settled principle that in con-

senting to suit against the Government, Congress may im-

pose any conditions it chooses upon the right to sue and

upon the nature of the remedy. The Tort Claims Act’s re-

quirement of application of the law of the place where the

act or omission occurred, rather than the application of the

law of the place of the act’s consequences, is but another

variance which Congress chose to insert.

In its opinion the Court of Appeals expressly recognized

this principle, viz, that the Tort Claims Act provided its

own choice-of-law rule and that the Act was not silent in

this area. It also acknowledged that Congress took effective

action to make a different rule applicable to the Govern-

ment in cases involving multi-state torts. Yet, it completely

ignored the plain meaning of the language actually used by

Congress. Instead, it said it was “committed” to a rule

which is nearly always applied in multi-state tort actions

between private parties. It is submitted, therefore, that

this complete disregard of the congressional mandate on

the law to be applied in such cases was clearly error.

III.

By applying the Oklahoma conflict of laws rule and

he rule that the Oklahoma wrongful death statute can

have no extraterritorial application to a death occurring

in another state, the Courts below completely negated

the intent of Congress to determine the liability of the

Government in accordance with the law of the place

where the act or omission occurred.

By express provision of the Act,” its terms and conditions

can only be applied in civil actions wherein the United

*28 U.S.C. § 1346(b). “Subject to the provisions of Chapter

171 . . the district courts . . . shall have exclusive jurisdiction of

civil actions on claims against the United States, for money dam-

ages,...”

States is the defendant. It has no application to actions

between private persons. The Act does not create a new

cause of action.“ It merely waives sovereign immunity from

suit for certain torts of federal employees.” The primary

purpose of the Act was to extend a remedy to those who

had been without one.” Although the State of Oklahoma

created a statutory fight and a remedy to recover damages

for wrengful death“ in actions against private defendants,

it is plain that it did not and cov'd not provide such a

remedy to those persons having wrongful death claims

against the United States of America. Only Congress could

provide that remedy, which it did in enacting the Federal

Tort Claims Act.“

It is clear; therefore, that the application of the Okla-

homa wrongful death statute to petitioners’ claims in ac-

cordance with the language of the Tort Claims Act, does

not change in any manner the established law prevailing in

Oklahoma concerning its wrongful death statute. The

courts in Oklahoma, and the federal district courts in

diversity actions, will still be free to apply the Oklahoma

conflict of laws rule, or its rule as to non-extraterritorial

application of its death statute, in a wrongful death action

against private defendant upon a death occurring in

Missouri. The mere fact that Congress chose to make a dif-

ferent rule apply in the federal courts to actions commenced

against the Government should be of no concern to the State

of Oklahoma, or any other state for that matter, since in

so doing, Congress did not intend the Act to affect the

states’ jurisdiction in such actions against private defen-

~ Feres v. United States, 340 U.S. 135, 141 (1980).

u Dalehite v. Uhited States, 346 U.S. 15, 17 (1958).

* Supra, note 36, at 140.

„F. W. Woolworth Co. v. Todd, 204 Okl. 532.

Supra, note 38.

— 22

dants. Therefore, with respect to wrongful death actions

against the Government under the Tort Claims Act, it would

not make any difference what construction the state courts

would give to the application of its death statutes where a

death occurs in another state, because Congress chose to

make a different rule applicable to the Government in such

actions.”

It would be difficult to conceive that Congress, at the

time this Act was passed, did not have in mind the general

rule of conflict of laws“ usually applied in such cases by

most jurisdictions. It would be equally difficult to impute

to that body any suggestion that it did not know that few,

if any, state wrongful death statutes have any extraterri-

torial application. If, therefore, Congress intended to have

the Government’s liability depend upon the general conflict

of laws rule or the extraterritorial effect of the wrongful

death statute of the state where the negligent act occurred,

the Tort Claims Act would be inapplicable in all actions

involving multi-state torts. Surely, Congress could not have

intended to provide the remedy to one class of claimants

and withhold it fromi another.

Yet, this result stems from the holdings of the Courts

below in the instant actions. Petitioners have been denied

the opportunity to obtain a determination of the merits

of their respective claims against the United States in ac-

cordance with the clear intent of Congress as contained in

the Federal Tort Claims Act. In short, the remedy pro-

vided by Congress has been withheld from petitioners be-

cause the deaths of their respective decedenta did not oc-

eur in the same state in which the Government was negli-

gent.

State of Maryland. to use of Burkhardt ». United States. 165

F. 2d 869 (4th Cir. 1947).

* See. e.g., Hunter v. Derby Foods. 110 F. 2d 970 (2d Cir.),

Restatement, Conflict of Laws, 377.78 (1934 Goodrich, Con-

flict of Laws, 263-64 (1949).

A :

\ i 26

For the foregoing reasons, petitioners pray that this

petition be granted to the end that these cases may be

reviewed and determined by this Court; that the judg-

ment of the Court of Appeals be reversed, and that peti-

tioners be granted such other and further relief as may

be preper.

Respectfully submitted,

Suzanne Ta Richanns,

Harvey UCK,

Ciarmve Faroven,

Bernice L. Maurm,

Marcaner J. Howe,

Exiaseta R. Cross,

Tuenese B. Axx,

Auruea S. Gars.

Rotu Jean Cann Hana

Anna Maz O' NAL,

Marcaret Emma Barron,

Myra Fun.

Vnamu Hopson,

Joseruine M. Scumyser,

By Epwarp M. O Banx, and

Truman B. Rucner

Counsel for Petitioners

290 Madison Avenue

New York 17, N. Y.

APPENDIX

28 U. S. C. §1346(b) provides as follows:

Subject to the provisions of chapter 171 of this title,

the district courts, together with the District Court for

the Territory of Alaska, the United States District

Court for the District of the Canal Zone, and the Dis-

trict Court of the Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims against the United

States for money damages, accruing on and after Janu-

ary 1, 1945, for injury or loss of property, or personal

injury or death caused by the negligent or wrongful

act or omission of any employee of the Government

while acting within the scope of his office or employ-

ment, under circumstances where the United States, if

a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred.

28 U.S. C. 51402 (b) provides as follows:

Any civil action on a tort claim against the United

States under subsection (b) of section 1346 of this title

may be prosecuted only in the judicial district where

the plaintiff resides or wherein the act or omission com-

plained of occurred. June 25, 1948. c. 646. 62 Stat. 937.

28 U. S. C. $2672 provides, in pertinent part, as follows:

The head of each federal agency, or his designee for

the purpose, acting on behalf of the United States, may

consider, ascertain, adjust, determine, and settle anv

claim for money damages of $1,000 or Jess against the

United States eecruing on and after January 1, 1945,

for injury or loss of property or personal injury or

death caused by the negligent or wrongful act or omis-

sion of any employee of the government while acting

within the scope of his office or employment, under

circumstances where the United States, if a private per-

son, would be liable to the claimant in accordance with

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

28 U. S. C. §2674 provides as follows:

LiaBILITY OF Unrrep ‘Seases

The United States shall be liable, respecting the pro-

visions of this title relating to tort claims, in the same

manner and to the same extent as a private individual

under like circumstances, but shall not be liable ‘or

interest prior to judgment or for punitive damages.

If, however, in any case wherein death was caused,

the law of the place where the act or omission com-

plained of occurred provides, or has been vonstrued to

provide, for damages only punitive in nature, the

United States shall be liable for actual or compens:-

tory damages, measured by the pecuniary injuries

resulting from such death ta the persons respectively,

for whose benefit the action was brought, in lieu there-

of. June 25, 1948, c. 646, 62 Stat. 983.

12 Okl. St. Ann. 51053, provides as follows:

When the death of one is caused by the wrongful act

or omission of another, the personal representative of

the former may maintain an action therefor against

the latter, or his personal representative if he is also

deceased, if the former might have maintained an action

had he lived, against the latter, or his representative,

for an injury for the same act or omissio#. The action

must be commenced within two years. The damages

must inure to the exclusive benefit of the surviving

F IO NS PII OE HN EA IO NCO Me 299 a „„ c

—

spouse and children, if any, or next of kin; to be dis-

tributed in the same manner as personal property of

the deceased. As amended Laws 1943, p. 35, § 1.

Chapter 537 V. A. Mo. S. §537.080 (Section 3653, R. S. Mo.

1939), provided on August 4, 1955, as follows:

LiaBiLiry ron WroncruL DeatH GENERALLY

Whenever the death of a person shall be caused by

a wrongful act, neglect or default of another, and the

act, neglect or default is such as would, if death had not

ensued, have entitled the party injured to maintain an

action and recover damages in respect thereof, then,

and in every such case, the person who or the corpora-

tion which would have been liable if death had not

ensued shall be liable to an action for damages, not-

withstanding the death of the person injured. (R. S.

1939, 53653)

Opinion of Court of Appeals

UNITED STATES COURT OF APPEALS

For tue Tarn Cracuit

Nos. 6378 to 6391—November Term, 1960

(Argued September 14, 1960 Decided November 25, 1960)

Docket Nos. 6378-6391

—

Suzanne Tnouas Ricnarps, nee Wai ow, individually and

for the use and benefit of Dana Sve Ricuagrps, et al.,

Appellants,

—vV.—

Unirep States or America, and American Ams, Ixc.,

Appellees.

(November 25, 1900)

Joserpu A. Snanr (Speiser, Quinn & O’Brien, Edward M.

O’Brien; Rucker, Tabor, Best, Sharp & Shepherd,

Truman B. Rucker and O. H. Pat“ O’Neil were with

him on the brief) for Appellants.

Suerman L. Conx, Department of Justice Attorney,

(George Cochran Doub, Assistant Attorney General ;

B. Hayden Crawford, United States Attorney; and

Morton Hollander, Department of Justice Attorney,

were with him on the brief) for Appellee, United States

of America.

Frep M. Mock (W. B. Patterson and Melvin F. Pierce were

with him on the brief) for Appellee, American Airlines,

Inc.

Before Murnau, Chief Judge, and Bnarrox and Pickett,

Circuit Judges.

Bratton, Circuit Judge.

A passenger airplane owned and operated by American

Airlines on a regularly scheduled flight crashed in Missouri

and everyone on board was killed. Invoking pertinent pro-

visions of the Federal Tort Claims Act, 28 U. S. C. 581346,

1402, and the so-called Wrongful Death Statutes of Okla-

homa, U.S. 1951, Title 12, chapter 17, 51051, ef seq., sur-

vivors or legal representatives of passengers who lost their

lives instituted in the United States Court for Northern

Oklahoma fourteen separate actions against the United

States for the rerovery of damages. The basis of the claim

pleaded in each case was negligence on the part of the

United States, acting through the Civil Aeronautics per-

sonnel, in permitting American Airlines to employ and use

unsafe practices and procedures at its overhaul depot at

Tulsa, Oklahoma, in repairing, rebuilding, overhauling, and

inspecting its aircraft, aircraft engines, and component

parts. More specifically, it was pleaded that as the result

of such negligence, an unfit and unsafe cylinder was placed

in one of the engines of the airplane at the overhaul depot;

that the cylinder failed; and that such failure caused the

crash. The United States denied negligence; denied lia-

bility; pleaded that the accident was an unavoidable casu-

alty; pleaded that the complainants were barred from

recovery against the United States by reason of payments

made to them by American Airlines and releases given to

such company; and pleaded in the alternative that the

amounts paid should be taken into account in mitigation of

damages against the United States. And by third party

complaints, the United States asserted against American

Airlines a right of indemnity in the event of recovery

against the United States. American Airlines pleaded that

the complaints failed to state a cause of action against the

_ United States; pleaded that the deaths were an unavoidable

casualty; pleaded that the actions were barred by the stat-

utes of limitation of Missouri; and pleaded that certain of

the complainants were barred from recovery against the

United States by reason of releases given to American Air-

Mines. The actions were consolidated for trial. In some of

the cases, American Airlines made payment in each case

of $15,000 to the complainants and releases and satisfac-

tions.of liability were executed. In the other cases, Amer-

ican Airlines during the course of a pre-trial conference

tendered to the complainants in each case $15,000. Follow-

ing the pre-trial conference, findings of fact and conclusions

of law were made; and judgments were entered dismissing

the actions. 2

The cases present a situation i in which the alleged wrong-

ful acts and conduct on the part of the United States

occurred in Oklahoma and the deaths of the decedents

occurred in Missouri. While it would be trite in ordinary

circumstances to do so, it may be appropriate in this case

to say that, in the absence of a controlling statute providing

otherwise, the general rule is that where an act of omission

or commission occurs at one place and resulting death,

personal injury, or damage takes place at another, the situs

of the actionable wrong is the place at which the death,

personal injury or property damage takes place. Betts v.

Southern Railway Co., 71 F. (2d) 787; Hunter v. Derby

Foods, 110 F. (2d) 970; Lowry v. International Brother-

hood, etc., 220 F. (2d) 546; Eastern Air Lines v. Union

Frust Co., 221 F. (2d) 62, eertiorari denied, 350 U. S. 911;

Orr v. Sasseman, 239 F. (2d) 182; Cameron v. Vandegrif,

Oe — . ee —

53 Ark. 381, 13 S. W. 1092; Strogoff v. Motor Sales Co., 302

Mass. 345, 18 N. E. (2d) 1016; Dallas v. Whitney, 118

W. Va. 106, 188 S. E. 766; Conklin v. Canadian-Colonial

Airways, 266 N. V. 244, 194 N. E. 692; Hughes Provision

Co. v. La Mear Poultry & Egg Co. (Mo. App.), 242 S. W.

(2d) 285; Gaston v. Wabash Railroad Co. (Mo.), 322 S. W.

(2d) 865; Mann v. Policyholders’ National Life Insurance

Co., 78 N. D. 724, 51 N. W. (2d) 853. See also Restatement,

Conflict of Laws §377. And that rule has been applied in

cases in which the act of omission or commission in respect

to a passenger airplane occurred at one place while the

resulting accident and death took place at another. Faron

v. Eastern Airlines, 84 N. X. S. (2d) 568; Riley v. Capital

Airlines, 199 N. . S. (2d) 515. It is readily conceivable

that solution of the problem could be more difficult in a case

in which the initial act of omission or commission occurred

at onc place, personal injury at another, and resulting death

later at a third. But no situation of that kind is presently

presented. |

If the Tort Claims Act were silent in respect to the matter

and the general rule to which reference has been made had

application with controlling effect, it seems clear that the

situs of the actionable wrong involved in these cases would

be in Missouri and the liability of the Government to re-

spond in damages would be referrable to the substantive

law of that state. But the Tort Claims Act is not silent in

that area. For reasons of its own choice, Congress took

effective action to make a different rule applicable to the

Government in such cases. Title 28, section 1346(b), United

States Code, authorizes suits against the Government for

death caused by the negligent or wrongful act of an em-

ployee of the Government while acting within the scope of

his employment if a private person would be liable in

accordance with the law of the place at which such act or

omission occurred. And Title 28, section 2674, provides in

— * 3⁴

presently pertinent part that the Government shall be

liable in respect to the provisions of the title relating to

tort claims in the same manner and to the same extent as

a private person under like circumstances. When construed

together, the effect of the two provisions in a case in which

the act or omission occurs at one place and the resulting

death at another is to subject the Government to liability

according to the tests and standards of the substantive law

of the state in which the act or omission occurred. Except

when expressly provided otherwise in the Act itself, the

effect of the two provisions in a case in which the act or

omission occurs at one place and resulting death at another

is to equate the liability of the Government with that of a

private litigant under the substantive law of the state

where the act or omission of the employee of the Govern-

ment oceurred. Eastern Air Lines v. Union Trust Co.,

supra; Voytas v. United States, 256 F. (2d) 786. Con-

cededly, a contrary view was expressed in United States v.

Marshall, 230 F. (2d) 183, and Hess v. United States, 259

F. (2d) 285, vacated on grounds not germane here, 361 U. S.

314. But we are persuaded that our view finds adequate

support in the Act.

The Supreme Court of Oklahoma has had occasion to

observe from time to time that at common law the wrongful

death of a person did not create a right of action for dam-

ages; and that the right of action in that state is purely

statutory. F. W. Woolworth Co. v. Todd, 204 Okl. 532, 231

Pac. (2d) 681; Gochenour v. St. Louis San Francisco Rail-

way Co., 205 Okl. 594, 239 Pac. (2d) 769; Herndon v. Dolton-

Barnard Hardware Co. (Okl.), 289 Pac. (2d) 970; Mathies

v. Kittrell (Okl.), 350 Pac. (2d) 951. The right of action

in that state is created by 12 O. S. 1951 51053. The statute

provides in substance that when the death of one is caused

by the wrongful act or omission of another, the personal

representative of the former may maintain an action there-

for against the latter, or his personal representative if he

Otfice-Supre:ne Court. US

H iltiehiioy rs | 3 2 D

oe * 13 ts 5 MAR 20 146

JAMES R. BROWNING. Clerk

— — —ꝛ——— POLL eOe & PPP DPE — PPP OP POPOL OPPO —

In the

SUPREME COURT OF THE UNITED STATES

OctoserR TERM, 1

No.. ,

‘SUZANNE THOMAS RICHARDS, nee Wadlow. indiv idually and

for the use and ener of Desra Sue RICHARDS. ET AL.

4 — 8

7 against

Unrrep Stares or AMERICA, and AMERICAN AIRLINES, INc.,

Respondents.

oN PETITION FOR WRIT’ OF CERTIORARI ? TO THE

UNITED STATES COURT OF APPEALS

—_ THE TENTH eee iT

BRIEF OF RESPONDENT AMERICAN “AIRLINES.

— IN .

W. B. PATTERSON,

Republic National Bank Building.

5 Dallas. Texas;

Frev M. Mock.

MELVIN F. Prerce,

First National Building,

Oklahoma City, Oklahoma,

Attorneys for Respondent.

American Airlines. Inc.

Orcas /Typesetrine co 13 SO WALKER OxLaHGma City PH Ce $-8750

is also deceased, if the former might have maintained an

action had he lived, against the latter, or his representative,

for an injury for the same act or omission; it further pro-

vides that the damages shall inure to the persons named ;

and it further provides the manner in which such damages

shall be distributed. The statute in its entirety creates a

new right of action, specifies the persons who may maintain

the action, and blueprints the distribution of the damages ~

recovered in the action. Gochenour v. St. Louis San Fran-

cisco Railway Co., supra. But it.does not indicate directly

or indirectly a legislative intent or purpose to undertake

to create a cause of action for wrongful death occurring in

another state. Neither does it suggest an intent or purpose

to make it apply to actions brought in the courts of Okla-

homa for wrongful death occurring outside the state.

Standing alone, it is limited in effect to wrongful deaths

which occur in Oklahoma. However, assuming that it is

brought in the name of the proper party plaintiff, against

the proper party defendant, with jurisdiction over the per-

son of the defendant, a transitory action for wrongful death

occurring in another state may be maintained in the courts

of Oklahoma if the substantive law of such other state

ereates a right of action for wrongful death and provides

for a transitory action for damages as the remedy. An

action of that kind in the courts of Oklahoma is not one

under the domestic statute of Oklahoma relating to wrong-

ful death. It is one for the enforcement of a right of action

having its source in the law of the state in whieh the wrong-

ful death occurred. Chicago, Rock Island & Pacific Railway

Co. v. Mcintire, 29 Okl. 797, 119 Pac. 1008; McCoubrey v.

Pure Oil Co., 179 Okl. 344, 66 Pac. (2d) 57; Gochenour v.

St. Louis San Francisco Railway Co., supra; Fenton v.

Sinclair Refining Co., 206 Okl. 19, 240 Pac. (2d) 748.

It was pleaded in the complaints in these cases that the

actions arose under the Tort Claims Act, supra; and that

—

they were brought under the Wrongful Death Statutes of

Oklahoma, supra. No reference was made in the complaints

to the laws of Missouri respecting wrongful death But

since the wrongful deaths pleaded in the complaints oc-

curred in Missouri, we take occasion to explore the question

whether a cause of action was pleaded for which the com-

plainants were entitled to relief by way of damages under

the laws of that state. A right of action for wrongful death

exists by statute in Missouri. Nelms v. Bright (Mo.), 299

S. W. (2d) 483. Quite similar to the wrongful death statute

of Oklahoma, supra, at the time of the airplane crash re-

ferred to herein, it was provided by statute in Missouri that

when the death of a person was caused by a wrongful act,

neglect, or default of another, and such act, neglect, or de-

fault was such as would, if death had not ensued, have enti-

tled the party injured to maintain an action and recover

damages therefor, an action for damages might be main- &

tained, notwithstanding the death of the person injured. R.

S. Mo. 1939, §3653. And at the time of such airplane crash,

it was further provided by statute in Missouri that damages

not to exceed $15,000 might be awarded for wrongful death.

R. S. Mo. 1939, §3654. No limitation in respect to amount of

damages is provided by statute in Oklahoma. But in creat-

ing the statutory right of action for wrongful death, it was

competent. for Missouri to fix the maximum amount of

damages recoverable in an action under such statute. And

this court is committed to the rule that where wrongful

death, occurs in one state and an action for damages is

instituted in another, the law of the state in which the

wrongful death occurred—not that in which the action was

instituted—controls in respect to the maximum amount of

damages which may be recovered. Stoltz v. Burlington

Transportation Co., 178 F. (2d) 514, certiorari denied, 339

U. S. 929; 3 e Co. v. Stoltz, 191 F.

(2d) 915.

The maximum recovery of damages under Missouri law

at the time of the airplane crash being $15,000, payment of

that amount to the complainants in some of these cases and

the deposit of that amount in the registry of the court in

the other cases, constituted full satisfaction for the wrong-

ful deaths, the causes of action under the law of Missouri

became extinguished, and recovery against the tort feasor

or tort feasors was barred. Hanson v. Norton, 340 Mo. 1012,

103 S. W. (2d) 1.

The judgments of dismissal are severally affirmed.

Murnau, Chief Judge, dissenting:

I agree that the government is liable in these cases as

a private person in accordance with Oklahoma law, i. e.,

the place where the alleged negligent act or omission ov-

eurred. I also agree that the inapplicability of the Oklahoma

wrongful death statute to deaths outside the state does not

preclude the right to recover in cases like these, even though

a private person would not be liable according to Oklahoma

law under the same ‘circumstances.

We know that few, if any, state wrongful death statutes

have any extraterritorial effect. If, therefore, the right to

recover under the Tort Claiins Act in cases like these is

made to depend upon the extraterritorial effect of the

wrongful death statute ofthe place of the negligent act,

the Act would be inapplicable to all such cases. Surely

Congress did not intend any such anomalous result.

The majority avoids this blind spot in the law by resort

to the Oklahoma conflict of, laws rule, which authorizes

maintenance of a suit in Oklahoma for wrongful death

occurring outside the state, in accordance with the law of

the state where death resulted. And see Fenton v. Sinclair

Refining Co., 240 P. 2d 748. The effect of this process of

reasoning is to apply the substantive law of the place of

death rather than the law of the place of the negligent act.

The end result seems contrary to our agreed interpretation

of the Tort Claims Act. Indeed, under this theory, these

suits might have been instituted and maintained in any

forum which authorizes them, with liability governed by the

law of the place where death occurred, i. e., Missouri. Thus,

if the suits had been commenced in Missouri, the Missouri

court would have looked to the law of Oklahoma as the

place where the negligent act occurred, and the Oklahoina

conflicts rule would apply the law of Missouri as the place

where death occurred.

In my vie#, Congress intended to avoid this circuitous

stacking of one conflicts rule on another in order to arrive

at controlling substantive law. Rather, it is my view that

the Tort Claims Act provides its own conflicts rule, that is,

the law of the place of the negligent act. In other words,

we rest upon the law of that state and look no further. If

Congress had intended otherwise, it could have simply

conferred jurisdiction upon the cdurts to hear and decide

claims for damages for death caused by the negligence of

the United States “under circumstances where the United

States, if a private person, would be liable to the claimant”

and stopped there. In this setting, these suits.jwould be

maintainable in Oklahoma in accordance with the Jaw of

Missouri, by virtue of the Oklahoma conflicts rule, that is,

the law af the place where the accident occurred. When,

however, Congress went on to say in effect that the govern- ‘

ment would be liable to the claimant as if a private person

“in accordance with the law of the place where the act or

omission occurred,” it thereupon removed the traditional

cloak of immunity and left the government standing as a

private person, but prescribed the law and the conditions

under which it would become liable.

Such is the import and result of Eastern Airlines v.

Union Trust Co., 221 F. 2d 62. I would follow the majority

view in that case and apply the Oklahoma wrongful death

statute. ‘ |

————

UNITED STATES COURT OF APPEALS

For rae Texts Circuit

Tenth Day, November Term, Friday, November 25th, 1960.

Before:

Hox. Atrrep P. Murra,

Chief Judge,

How. Sam G. Bnarrox,

How. Joux C. Pickett,

Circuit Judges.

> —

Suzanne Tnouas RIc RAUS, nee WAL, individually and

for the use and benefit of DEB Sue Kicnarps, et al.,

Appellants,

—v.—

Uxrrxo States or America, and AMERICAN AIRLINES, Ixc.,

. Appellees.

These causes came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Oklahoma and were argued by counsel.

On consideration whereof, it is ordered and adjudged by

this Court that the judgments of dismissal are severally

affirmed.

Rostzt B. CartwricHt

Clerk

Judgment

UNITED STATES DISTRICT COURT

For tHe Nortuern DWT or OxLanoma

Civil Action Nos. 4272 through 4285

—

Suzaxve THOMAS Richanbs, nee WabLow, individualiy and

for the use and benefit of Desra Sve Riomanvs, et al.,

Plaintiffs,

—

Unrrep States or AMERICA,

——

Unrrep States or AMEnica,

Third Party Plaintiff,

Defendant.

—vs.—

American Arruinzs, Ixc.,

| Third Party Defendant.

—

Findings of Fact

In accordance with the stipulations heretofore entered

into between the parties, the Court finds as follows:

That the suits by plaintiffs against United States of

America allegedly arise under the terms of the Federal Tort

Claims Act, 28 U. S. C. 1346 et seq. and allegedly are

brought under the Oklahoma Wrongful Death Statute, to

wit: 12 O.S. Sec. 1051, et seq.

II.

That, in the actions brought by plaintiffs against Amer-

ican Airlines, there is diversity of citizenship between the

parties.

III.

Convair Airplane 240, registration No. N 94221, was

owned and operated by American Airlines and, on the 4th

day of August 1955, was being operated by American Air-

lines as Flight 476 when it crashed at Fort Leonard Wood,

Missouri.

IV.

That, at the time of the crash, the airplane was being

operated by Captain Hugh Barron, as pilot, and William

Grover Gates, as co-pilot. That Hugh Barron and William

Grover Gates were employees of American Airlines at the

time of the crash and were fatally injured as a result of the

crash.

That. Harold M. Fields, Morris W. Akin, Kurt D. Rich.”

ards, Samuel H. Hobson, Robert I. Zelens, John Leland

Cross, Jr., James Howe, Wayne Howe, Donald L. Carr-

Harris, Virgil D. Maupin, Tilson J. Farough, Herman F.

Schmysef and William E. O’Neel were all fare paying pas-

sengers, lawfully aboard American Airlines Flight 476,

and all perished in the crash occurring at Fort Leonard

Wood, Missouri. 7

VI.

That the death of the crew members and all fare paying

passengers occurred within the State of Missouri.

Ry CE AAR RC Mie TNT NRA SEIS FE PRI EE ROE

VII.

That plaintiffs allege negligence on the part of the United

States of America, occurring prior to the 4th day of August,

1955, at the American Airlines Overhani Depot located at

Tulsa, Oklahoma, which they allege was the proximate

cause of the crash and deaths of the members of the crew

and fare paying passengers.

VIII.

That plaintiffs have received full satisfaction of any

cause of action they may have under the terms and provi-

sions of the Wrongful Death Statute of the State of Mis-

souri.

Conclusions of Law

In accordance with the above Findings of Fact, the Court

determines as follows:

The Court has jurisdiction of the parties and the subject

matter of these actions.

II.

In the actions by plaintiffs against the United States of

America, the provisions of the Federal Tort Claims Act,

28 U. S. C. 1346(b) et seq. are applicable.

III.

It is unnecessary to decide whether the law applicable to

the plaintiffs’ claims against the United States of America

is that of the State of Missouri or the State of Oklahoma,

for in either case the plaintiffs have no actionable claims

against the United States of America.

IV.

There is no cause of action under the Oklahoma Wrongful

Death statute where an act or omission occurring in Okla-

homa results in injury and death in the State of Missouri.

If Oklahoma law is applicable under the Federal Tort

Claims Act, then the general law of Oklahoma, including its

conflicts of law rule, is applicable thereunder.

VI.

The Oklahoma conflicts of law rule requires that in the

circumstances of these cases the plaintiffs’ claims be deter-

minable by reference to the Missouri Wrongful Death

statute.

VIL.

The plaintiffs have no further claims under the Missouri

Wrongful Death Statute for the reason that they have

already received full satisfaction of any claims they might

have thereunder.

VIII.

The complaints in the above action should be dismissed

with prejudice.

IX.

Since the complaints against the United States are to be

dismissed, it is unnecessary to pass upon the third party

complaints asserted by the United States against American

Airlines.

Order of Judgment

In accordance with the above findings of fact and con-

_ clusions of law, the complaints in the above actions are here-

by dismissed with prejudice.

Rarmonp H. Savace

. Judge

Approved:

Speiser, Quinx & O’Brien

Rucker, Tapor & Cox

By Joserpn A. Suarp

Attorneys for Plaintiffs

Ruopks, Crowz, Hizronyuus & Hottoway

Attorneys for Intervenor

Roseat Rizizy

(Illegible)

By Rvsse.. H. Surrn

Attorneys for United States of America

Pierce, Mock & Duncan, Covcn & Henpricxson

Jacxsox, Waker, Wivsteap, Cartweit & Mulan

By W. B. Parrerson

Attorneys for American Airlines, Inc.

Unsrrep States Disraicr Court,

Norrueen Distaict or OxLaHoma, 58

I hereby certify that the foregoing is a true copy of the

original on file in this court.

Non C. Hoop, Clk.

By M. M. Ewing

Deputy

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