Opposition Brief — Western Airlines, Inc. v. Bratt

2

E COPY

In the

Supreme Court of the Anited States

October Term, 1946.

No. 4 2

WESTERN AIRLINES, INC., a Corporation,

Petitioner,

VS.

HILDA OGDEN BRATT; BARBARA ANN BRATT,

a Minor, by Her Guardian ad litem, Hilda Ogden Bratt;

JOAN NANCY BRATT, a Minor, by Her Guardian

ad litem, Hilda Ogden Bratt, Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

GRANTING CERTIORARI

\

WILLIAM H. DEPARCQ,

\ PARNELL BLACK,

Counse! for Respondents.

Of Counsel:

ROBT. J. MCDONALD,

DONALD T. BARBEAU,

BRIGHAM E. ROBERTS.

Hayward-Court Brief Printing Co., Minneapolis i5, Minn.

—

Preliminary statement. os any Paes

II. Pleadings, evidence and instructions ree

ae. ‚‚‚/ T nean BEE SET ed NPA

B. The evidence. ........-. eee cece reer eee eeeeeeeeees

C. The court’s instructions fi Scie be kG ade

III. The argument... .. 1... eee cece cere rete renner enreeeees

A. No question with respect to res ipsa loquitur is involved...

B. The Circuit Court of Appeals properly held that the trial

court applied erroneous legal standards in rejecting Lee’s

testimony ...... 2c ese seve snvcees e

C. The Circuit Court of Appeals properly held that the testi-

mony of the witness Welcher was admissible............

IV. Conclus on

CASES CITED

Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission,

S15 U. B. 226, BOB. Ch. % j oer ea ees

Battle Creek Bread Wrapping Mach. Co. v. Paramount Baking Co.,

88 Utah 67, 39 Pac. (2d) 323....... .

Bramen-Johnson Flying Service, Inc., v. Thomson, 167 Misc. 167,

3 N. v. Supp. (2d) 6zb· . ween eens

Carr v. Cranney, 24 Utah 193, 70 Pac. 88 ũ ũ ꝶ .d

Clarke v. Hot Springs Elec. Light & Power Co., et al., 52 F. (2d)

HÜZ˙m d CREST RET TE CREE . STRESS

Clark v. Los Angeles & Salt Lake R. Co., 73 Utah 486, 275 Pac. 582

Clark, et al., v. Horowitz, et al., 293 Pa. 441, 143 Atl. 131

City Council of Montgomery v. Gilmer & Taylor, 33 Ala. 116, 70 Am.

Coon v. Shields, 88 Utah 76, 39 Pac. (2d) 34e.

Dearden v. San Pedro L. A. & S. L. R. Co., 33 Utah 147, 93 Pac. 271

Denver v. Atchison, Topeka & Santa Fe Ry. Co., 96 Kan. 154, 150

Ex Parte Siebold, 100 U. S. 371, 399898. ewe Kw ***

Fightmaster v. Mode, 31 Ohio App. 273, 16 7 N. o ⸗

Fosbroke-Hobbes v. Air Work, Ltd., & British American Air Service,

Ltd., 1938 U. S. Av. R. 194 (High Court of Justice, King's Bench

Div., Dec. 21, 1936) (53 T. L. R. 254, 81 Sol. J. 80)

General Talking Pictures Corp. v. Western Electric Co., 304 U. 8.

175, 58 8. Ct. 8 aũo·t.rtrꝶ rue „„

Genero v. Ewing, 178 Wash. 78, 28 Pac. (2d) 110.

Germania Life Insurance Co. v. Ross-Lewin, et al., 24 Colo. 43,

i i ˙ hk Sua ˙ . UREN AWE RS EwS CEN Sins

Golder v. Lund, 50 Neb. 867, 70 N. W. 3799...

. TLE AIRE AES A

Helvering v. Fuller, 310 U. S. 69, 90 S. Ct. 784 54

Kay v. United States, 303 U. S. 1, 58 8. Ct. 468. 5

Keller v. Potomac Electric power Co., 261 U. 8. 428. 43 8. Ct. 445.

Kentucky Public Service Co. v. Topmiller, 204 Ky. 196, 263 8. E. 706

Kitchens v. State (Ala. App.), 14 8. (2d) 739 d

Lambert v. Virginian Ry. Co., 96 W. Va. 158, 122 S. E. 457.

Lanasa Fruit S. S. & Imp. Co., Inc., v. Universal Ins. Co., 302 U. S.

556, 58 8. Ct. 371

Lestico v. Kuehner, 204 Minn. 125, 283 N. W. 122

Loos v. Mountain Fuel Supply Co., 99 Utah 496, 108 Pac. (2d) 254

Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 51 S. E. 569

Malone, et al., v. Trans-Canada Airlines, 1942 U. S. Av. R. 144

(Dominion of Canada, Province of Ontario, Court of Appeals)

(3 D. L. R. 369-1942)

Malone-McConnell Real Estate Co. v. J. B. Simpson Audit Co., 197

Ala. 677, 73 So. 369

McCusker v. Curtis-Wright, Inc. (1933), 264 Ill. App. 502

Muskeget Island Club v. Town of Nantucket, 185 Mass. 303, 70

Muskrat v. U. S., 219 U. S. 346, 31 S. Ct. 250

Olson v. O. S. L. R. Co., 24 Utah 460, 68 Pac. 148

Owens v. Union Pacific R. Co., 319 U. S. 715, 63 S. Ct. 1271

Pearson, et al., v. Zehr, 138 Ill. 48, 29 N. E. 854

Peck v. New York Central & H. R. R. Co., 165 N. V. 347, 59 N. E.

People v. Rice, 159 N. V. 400, 54 N. E. 48

People v. Cox, 340 III. 111, 172 N. E. 64

Pridgen v. Gibson, 194 N. C. 289, 139 8. E. 443

Provo-River Water Users Ass’n v. Carlson, et al., 103 Utah 93, 133

Pac. (2d) 777

Selby v. Osage Torpedo Co., 112 Okla. 203, 241 Pac. 131

Seaman v. Curtiss Flying Service, Inc., 247 N. Y. Supp. 251, 231 App.

Smith v. O’Donnell, 215 Cal. 714, 5 Pac. (2d) 690, 12 Pac. (2d) 933

Smith v. Pacific Alaska Airways, Inc., 89 F. (2d) 253

State of Alabama v. State of Arizona, 291 U. S. 286, 54 8. Ct. 399.

State Line & S. R. Co. v. Phillips, 98 F. (2d) 651 (3 C. C. A.)

Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 9 S. Ct. 601

United States v. Johnston, 268 U. S. 220, 45 S. Ct. 496

Walkenhorst v. Kesler, 92 Utah 312, 67 Pac. (2d) 654

Wooton v. Dragon Consolidated Mining Co., 54 Utah 459, 181 Pac.

TEXT BOOK CITED

Jones, Commentaries on Evidence, Vol. 3, Secs. 1314, 1315, 1316,

In the

Supreme Court of the United States

October Term, 1946.

No.

WESTERN AIRLINES, INC., a Corporation,

Petitioner,

vs.

HILDA OGDEN BRATT; BARBARA ANN BRATT,

a Minor, by Her Guardian ad litem, Hilda Ogden Bratt;

JOAN NANCY BRATT, a Minor, by Her Guardian

ad litem, Hilda Ogden Bratt, Respondents.

RESPONDENTS: BRIEF IN OPPOSITION TO

GRANTING CERTIORARI

I.

PRELIMINARY STATEMENT

(Figures in parentheses refer to pages of the record.)

The petition and brief are replete with false state-

ments. They are wholly unreliable to inform this Court

as to the sole question involved upon the present appli-

cation, which relates to an evidentiary ruling. Neither

the doctrine of res ipsa loquitur, nor the sufficiency of

the evidence to invoke it, nor the propriety of the court’s

instructions with reference thereto is involved.

This Court will not render advisory opinions and will

confine itself to the questions presented to the Circuit

2

Court of Appeals. Owens v. Union Pacific R. Co., 319

U. S. 715, 63 S. Ct. 1271; Helvering v. Fuller, 310 U. S. 69,

60 S. Ct. 784; Kay v. United States, 303 U. S. 1, 58 S. Ct.

468; Lanasa Fruit 8. S. & Imp. Co., Inc., v. Universal Ins.

Co., 302 U. S. 556, 58 S. Ct. 371. Therefore, we will pro-

ceed to make clear the issues as presented by the plead-

ings in both the trial court and the Circuit Court of

Appeals.

II.

PLEADINGS, EVIDENCE AND INSTRUCTIONS

A. The Pleadings.

It is asserted throughout the petition and brief that

the plaintiffs alleged only a cause of action under the

doctrine of res ipsa loquitur. It is emphasized that the

sole charge of negligence contained in the complaint is

one under the doctrine of res ipsa loquitur. This is not

true and, therefore, we desire to call attention to the

charges of negligence contained in the complaint upon

which the cause was tried below.

The complaint consists of two separate and distinct

counts. The first count sets forth a cause of action on

grounds of general negligence under res ipsa loquitur

and is based solely upon that ground. The second count

alleged negligence in general terms but not under the

doctrine of res ipsa loquitur. Count two alleges negli-

gence as follows:

“That the defendant negligently and carelessly

managed, maintained, operated and controlled said

airplane and its said airline and its equipment and

the conduct of said flight * * (R. 5).

This pleading was not attacked by defendant at any

stage of the proceedings. There was no motion to make

it more specific and certain.

The position of the plaintiffs was understood both by

court and counsel and was made perfectly clear in the

following colloquy at a pre-trial conference (R. 39):

“The Court: No, I am not asking you to elect; I

am simply asking what your state of mind is.

Mr. Depareq: My state of mind is this: that we

will show the facts and circumstances surrounding

this accident. We will then also offer expert evi-

dence with reference to its cause in aid and in ex-

planation of the factual background; and it will be

our contention, I believe, when the evidence closes

and the record is finished, that we have adduced

sufficient evidence to permit this case to go to the

jury on specific negligence. But certainly if not,

then we may fall back on the doctrine of res ipsa

loquitur in line with the Loos case.

“The Court: And so that the issues are about as

I stated them a while ago?

Mr. DeParcq: That is right, your Honor.”

B. The Evidence.

The accident out of which this wrongful death action

arose occurred at about 1:22 a. m. on December 15, 1942,

at approximately three miles southeast of Fairfield,

Utah.

The airplane was a Douglas DC-3 manufactured in

December, 1936, and a total of 14,773 hours of flying

time had been logged for the airplane (R. 214). The

plane was not only the oldest one in the service of the

defendant but was four or five times older than any other

plane owned and operated by the defendant during

December, 1942 (R. 214). The operating statistics of

the defendant establish that at and before the time of

the accident the Western Airlines, with only about half

the number of planes in service, was carrying a substan-

tially larger payload with respect to passengers, mail

and express, than in previous years (R. 213, 214).

—— —— —

— IOI T OOLT

4

All the evidence established that at the time and place

of the accident the weather conditions were ideal for

flying (R. 381). The government meteorologist testified

that everything indicated stable air conditions and ceil-

ing and visibility unlimited (R. 92, 93-96), not only at

the time of the accident but for two days prior thereto

(R. 103). The data for Fairfield at 1:30 a. m. indicated

a stable air mass and winds only light to gentle (R. 66,

67). The defendant’s records show an “easterly flow of

dry stable air” and ceiling and visibility unlimited

(R. 263, 264). One of the defendant’s captains went over

the same route at 11:29 p. m. and reported in his flight

log that the air was smooth (R. 350, 351).

The accident was described in the deposition of Cap-

tain Gardner, a survivor of the crash. He was seated in

the third seat from the front on the left side, just over

the trailing edge of the left wing, and after a normal

take-off he settled back and dozed off and was semi-

conscious (R. 122). He was awake enough so that he was

aware of the stewardess walking back to the rear of the

cabin at one time, and noticed that the “No Smoking”

sign was turned off. There was nothing unusual until he

was brought up sharply to keen awareness by a very

sharp pull-up and maneuver of the airplane with a sud-

den acceleration in an upward direction (R. 123). He

realized that there was something in the nature of an

emergency (R. 123). He knew that commercial planes

were not handled in that fashion except in case of emer-

gency (R. 131). The pull-up was very sharp. He was

caused to sit down heavily in his seat and had the sensa-

tion of his cheeks dropping and his mouth wanting to

fall open and his ears sliding down the side of his head

(R. 123). He could not have stood up (R. 123, 124). The

pull-up continued for a few seconds, during which time

he ripped open the curtain to look outside (R. 124). The

airplane started to shake as though beginning to stall;

there was a noise in the vicinity of the left engine which

sounded like a thump; the plane just nosed over gently

and continued in a stalled attitude, shaking all the way

and continuing in a mushing flight with a turn to the

left until the point of impact (R. 124). It was in a skid-

ding left turn (R. 124).

When he first became aware of the unusual maneuver

the first thing he did was tighten his safety felt as far

as it would go (R. 124). The plane seemed to descend

without interruption in a skidding left turn (R. 125).

There was a certain amount of shuddering throughout

the aircraft (R. 126).

While Captain Gardner could not commit himself abso-

lutely, yet he believed that the sign which says, “Tighten

Safety Belts,” was turned off a short time after the take-

off (R. 129) and he did not observe it turn on again up

to the time of the crash. The stewardess did not say any-

thing or issue any warnings about tightening safety

belts after the pull-up and before the crash (R. 131).

Defense counsel conceded that it was only because Gard-

ner jerked his belt tight that he survived the ordeal

(R. 725). The pull-up was extremely abrupt (R. 131).

When he looked out it was clear and the moon was shin-

ing and visibility and ceiling were generally unlimited

(R. 132). The flight seemed to be smooth before the

pull-up and he had no recollection of its being bumpy or

of any down-drafts or up-drafts (R. 134). It was a mat-

ter of two or three minutes from the time of the pull-up

until the impact. While the left engine seemed a little

rough he could not be absolutely sure (R. 138).

It was established, in fact admitted by the chief pilot

of the defendant, that there were only three possible

causes of the accident, to-wit:

— —ñ Auf

Either some maneuver by the crew members, or

2. Something defective with reference to the condi-

tion of the plane and its various parts, or

3. Weather conditions (R. 193).

The evidence overwhelmingly eliminated the weather

as a probable cause. An investigation failed to disclose

the presence of any other aircraft in the immediate

vicinity of the accident at the time (R. 193-5). There

was no evidence in the record of any contact or collision

with any plane or object in the air (R. 195). In the

opinion of the chief pilot the evidence pointed to a strut-

tural failure rather than some other cause (R. 195).

It appeared without dispute that the left wing tip and

the right horizontal stabilizer failed in the air and that

the plane was in the process of disintegrating before

reaching the ground. Pieces of fabric and glass were

found a distance of from 1,500 to 2,000 feet from where

the plane came to earth (R. 58). Counsel for the de-

fendant conceded that the fractures were such that they

had to occur, in part at least, in the air (R. 59, 299).

While it was admitted that there was a structural

failure in the air, yet there was no agreement, in fact a

sharp dispute, as to what caused the structural failure.

It was the defendant’s position that the accident may

have been caused by a flock of birds, another aircraft, an

up-draft or down-draft, or some other emergency, not

due to defective equipment, which confronted the pilots

(R. 715, 716). The plaintiff, on the other hand, offered

expert evidence to prove that the accident was caused by

an unsafe, defective and dangerous right horizontal

stabilizer, and this testimony will be discussed later

(R. 339).

7

C. The Court's Instructions.

It is stated by petitioner that the trial court submitted

the case to the jury solely under the doctrine of res ipsa

loquitur. This likewise is not true. In fact, the court,

after submitting the case under the doctrine of res ipsa

loquitur and explaining that doctrine expressly said in

its instructions (R. 760):

“But that is not the only ground that the plain

tiffs rely upon in these cases for recovery. It is

claimed and charged in the complaint that there was.

negligence in the operation of the plane. By opera-

tion is meant the flight of the plane at that time as

made by the pilot and co-pilot on the plane.”

Thus it will be seen that neither court nor counsel in-

terpreted the complaint as limiting the charges of negli-

gence solely to the doctrine of res ipsa loquitur. It may

be noted that there was no exception taken by either

party to the court’s charge (R. 777).

III.

THE ARGUMENT

A. No Question With Respect to Res Ipsa Loquitur Is:

Involved.

This Court in Rule 38, Section 5, has set forth the

grounds which warrant a writ of certiorari and while the

grounds are not controlling and do not limit the court’s

discretion, yet they are indicative of the reasons which

will be considered of sufficient importance to invoke this

Court’s supervision. The order or judgment here under

review is not final. While this is not fatal to jurisdic-

tion, yet we believe the defendant should not be per-

mitted to seek review of an evidentiary ruling of this

character before it has been applied prejudicially to its

interests.

— ——

We propose to demonstrate that none of the grounds

or reasons which this Court has specified as warranting

a writ of certiorari exist in the case at bar.

The defendant’s brief is calculated to obscure rather

than to clarify the questions raised by this petition. In

the Circuit Court of Appeals the plaintiffs—respondents

here—on page 9 of their brief stated that the sufficiency

of the evidence to warrant the submission of res ipsa

loquitur was not involved. In its brief, agreeing that the

doctrine was not involved, the petitioner—defendant—

on page 2 thereof stated:

“As appellants indicate at page 9 of their brief,

no question of specific negligence of the defendant

was raised by any of the evidence presented. The

case was submitted to the jury solely on the doctrine

of res ipsa loquitur. The sufficiency of the evidence

to warrant its submission to the jury is not involved

in the present appeal. Despite this admission by the

appellants, the brief at page 13 contains an argu-

ment as to the applicability of the doctrine of res

ipsa loquitur to the present case. This argument

appears to be entirely inapplicable, immaterial, and

out of place.”

A certified copy of the brief of the appellee, petitioner

here, containing the above paragraph has been filed with

the clerk of this Court. It will thus be seen that the peti-

tioner here, now seeking to invoke the powers of this

Court to determine the applicability of the res ipsa

loquitur doctrine, took precisely the opposite position in

the court below.

No question of conflict of laws has arisen or could

arise at any stage of the proceedings. Both parties and

the trial court agreed that the doctrine of res ipsa

loquitur as established in the state of Utah was the

governing law, whether substantive or procedural. The

implications of the case of Erie R. Co. v. Tompkins were

not involved. The parties have been and are now in en-

tire harmony that the governing law is that of the state

of Utah. ;

Although the question is not here involved, we might

observe that while the authorities are in conflict with

reference to the application of res ipsa loquitur to a pri-

vate plane where the passenger has access to the con-

trols, yet they are uniform in applying the doctrine to a

common carrier by air and its passenger where the air-

craft is in scheduled commercial flight, and, admittedly,

under the sole dominion and control of the defendant and

its agents and servants, and where, as here, the accident

is one which according to the testimony of the defend-

ant’s officials would not and should not happen if those

having the ownership, inspection, maintenance and

operation of the plane exercised the proper degree of

care (R. 153).

Smith v. Pacific Alaska Airways, Inc., 89 F. (2d)

253 ;

Seaman v. Curtiss Flying Service, Inc., 247 N. Y.

Supp. 251, 231 App. Div. 867;

Smith v. O’Donnell, 215 Cal. 714, 5 Pac. (2d) 690,

12 Pac. (2d) 933;

McCusker v. Curtis-Wright, Inc. (1933), 264 III.

App. 502;

English v. Miller (Tex. Civ. App.), 43 S. W. (2d)

642;

Bramen-Johnson Flying Service, Inc., v. Thomson,

167 Misc. 167, 3 N. T. Supp. (2d) 602;

Genero v. Ewing, 178 Wash. 78, 28 Pac. (2d) 116;

Fosbroke-Hobbes v. Air Work, Ltd., & British

American Air Service, Ltd., 1938 U. S. Av. R. 194

(High Court of Justice, King's Bench Div., Dec.

21, 1936) (53 T. L. R. 254, 81 Sol. J. 80);

Malone, et al., v. Trans-Canada Airlines, 1942 U. S.

Av. R. 144 (Dominion of Canada, Province of On-

tario, Court of Appeals) (3 D. L. R. 369-1942).

10 —

In order to grant a writ in this case to discussand

solve questions not raised or involved either in the rial

court or in the Circuit Court of Appeals the Supreme

Court would have to render a purely advisory opiion.

This Court does not render advisory opinions and dter-

mines only real controversies of grave importace.

Muskrat v. U. S., 219 U. S. 346, 31 S. Ct. 250; Kellr v.

Potomac Electric Power Co., 261 U. S. 428, 43 S. Ct. 45;

State of Alabama v. State of Arizona, 291 U. S. 286,

54 S. Ct. 399; Baltimore & Ohio R. R. Co. v. Intertate

Commerce Commission, 215 U. S. 216, 30 S. Ct. 86;

Eæ Parte Siebold, 100 U. S. 371, 398.

This Court does not review decisions or judgmnts

based solely on questions of fact such as a ruling oi the

trial court or an instruction by the trial court. Geral

Talking Pictures Corp. v. Western Electric Co., 304 J. S.

175, 58 S. Ct. 849; United States v. Johnston, 268 f. 8.

220, 45 S. Ct. 496.

B. The Circuit Court of Appeals Properly Held “hat

the Trial Court Applied Erroneous Legal Standrds

in Rejecting Lee’s Testimony.

There can be no possible dispute concerning theuni-

versal principle stated by this court in Stillwell Mfg Oo.

v. Phelps, 130 U. S. 520, 9 S. Ct. 601:

“Whether a witness called to testify to any aat-

ter of opinion, had such qualifications and knw).

edge as to make his testimony admissible, is apre-

liminary question for the judge presiding atthe

trial, and his decision is conclusive unless clqrjy

shown to be erroneous as a matter of law.”

In accord the Tenth Circuit Court of Appeals hey jn

Clarke v. Hot Springs Elec. Light & Power Co., e. al.,

52 F. (2d) 612, that the trial court on a matter of this

kind will be reversed only in the event of: (1) a lain

error of law or (2) a serious mistake of fact, or (3)

abuse of discretion. The law of Utah is in harmony with

the principles expressed by this court and by the Circuit

Court of Appeals as will be established by the following

authorities:

Wooton v. Dragon Consolidated Mining Co., 54 Utah

459, 181 Pac. 593;

Clark v. Los Angeles & Salt Lake R. Co., 73 Utah

486, 275 Pac. 582;

Carr v. Cranney, 24 Utah 193, 70 Pac. 853;

Olson v. O. S. L. R. Co., 24 Utah 460, 68 Pac. 148;

Wright v. Southern Pacific Co., 15 Utah 421, 49 Pac.

309;

Walkenhorst v. Kesler, 92 Utah 312, 67 Pac. (2d)

654;

Coon v. Shields, 88 Utah 76, 39 Pac. (2d) 348;

Battle Creek Bread Wrapping Mach. Co. v. Para-

mount Baking Co., 88 Utah 67, 39 Pac. (2d) 323;

Provo-River Water Users Ass’n v. Carlson, et al.,

103 Utah 93, 133 Pac. (2d) 777.

The offer of proof which the trial court rejected will

be found on page 339 of the record. It is quite lengthy

and detailed, but the witness Lee, had he been permitted

by the court, would have testified that in his opinion the

right horizontal stabilizer was in a defective, unsafe and

dangerous condition, and that otherwise it would not

have failed. The plaintiff offered to prove by this witness

that the defective condition of the right horizontal

stabilizer was the cause of the accident and initiated the

other sequence of events (R. 339). The offer of proof

included the sequence of events and the reasons of the

witness for his opinion. The opinion was to be based

upon a close and personal inspection of the records, the

wreckage of the plane, the photographs, the barograph

card, and the testimony of Captain Gardner. The ex-

3 ——

perience of the witness which qualified him to express

the opinion was as follows:

He was an aviation mechanic in the employ of the

Thompson Flying Service at Salt Lake City (R. 272).

His interest in aviation started in 1927, and he had flown

numerous types of planes, including multi-engine and

twin-engine aircraft (R. 272). He had approximately

1,100 hours of flying in the air (R. 272). He had owned

three planes of his own, and listed some twelve or thir-

teen types of planes he had flown (R. 303). He had ex-

perienced stalls and spins in the air and recovered there-

from (R. 307). He had done stunting and acrobatic fly-

ing (R. 308). He had handled planes under circum-

stances where he had put stress and strain on the wings

and stabilizers (id.).

He had worked for Western Airlines for about eleven

months as an apprentice mechanic and as a shop spe-

cialist (R. 273). While employed by the defendant he

did general maintenance work on aircraft, including in-

spections and repairs (R. 275). Western Airlines changed

his position from that of an apprentice mechanic to a

shop specialist and gave him more responsibility (R.

306). The latter job required a knowledge of stresses

and strains of materials. As a part of his work at

Western Airlines he made inspections for the purpose of

determining evidence of stress and strain on wings and

stabilizers (R. 314, 315). Prior to his work with Western

Airlines he had previous experience and training as a

welder and a sheet metal worker, and was, therefore,

transferred to the army school training work while at

Western Airlines (R. 275). The work he was doing at

the Thompson Flying Service was substantially the same

and this was a licensed repair station under the C. A. A.

and he worked on any type of a plane (R. 275).

The witness was familiar with the various parts and

structures of an airplane with reference to their purpose

and function in flight (R. 280-283). He had studied the

C. A. A. manual and the Western Airlines maintenance

manual and a lot of literature pertaining to the opera-

tion, construction and maintenance of DC-3 equipment

(R. 289). At Western Airlines it was a part of his work

to make Nos. 1, 2 and 3 inspections on this equipment

(R. 289). He made inspections to determine air worthi-

ness.

The witness Lee had studied metals and had experi-

ence with heat treated alloy (R. 332). He had studied

manuals with reference to the construction of the DC-3

(R. 333). He testified that he had studied load factors

and structural aero-dynamics, and that given proper

tools and equipment, he could determine how to con-

struct a piece of alloy to produce certain resistance, and

that he believes that he could figure out the weight

stresses of a bridge (R. 338).

It appeared that in addition to his flying experience,

work as a mechanic and general knowledge of aviation,

he had studied aero-dynamics and had taken an adult

course in the subject offered by the Civil Air Patrol at

Salt Lake City. He had been a member of the school

class for over two years, attending at least once a week

for a two-hour period (R. 306). He did the very same

work at Western Airlines that was done by mechanics

with an AE license (R. 308, 309), and he had all the

qualifications to obtain one but had never taken the

examination (R. 310).

The exclusionary ruling of the trial court prevented

the plaintiffs from offering evidence of the defective and

unsafe condition of the plane. Such evidence was ad-

missible under count two of the complaint which alleged,

in part, that the defendant negligently maintained its

plane and equipment (R. 5).

The proferred testimony was also admissible under

the doctrine of res ipsa loquitur even though no other

14

count had been contained in the complaint. This was

definitely held by the Utah Supreme Court in Dearden v.

San Pedro L. A. & S. L. R. Co., 33 Utah 147, 93 Pac. 271,

and Loos v. Mountain Fuel Supply Co., 99 Utah 496, 108

Pac. (2d) 254. In the former case, which is directly in

point, the court said:

“That the plaintiff averred and undertook to show

a defective brake chain as evidence of negligence

causing the collision, did not waive nor affect the

presumption of negligence arising from the circum-

stances, which was in itself sufficient to show such

negligence. A relevant fact may frequently be

proved in several different ways. The circumstances

from which the presumption referred to arose were

evidence for plaintiff of the fact of defendant’s neg-

ligence causing the collision. The evidence of a de-

fective brake chain which the plaintiff produced was

also scme proof of such negligence, and was in aid

of and not adverse to the presumption. Though he

had failed in such proof, the presumption of negli-

gence which had been shown to exist independent

thereof was in no wise displaced nor weakened.”

Significant here is Rule 43 (a) of the Rules of Civil

Procedure which provides that the admissibility of evi-

dence is governed by the rule applied in federal courts or

in the courts of the state in which the federal court sits,

whichever favors its reception. The rule specifies, “In

any case, the statute or rule which favors the reception

of the evidence governs.”

The principal objection urged against Lee’s qualifica-

tions was that he did not have an AE license (R. 310).

The trial court was under the impression that in order to

qualify it would be necessary to have an expert engineer

who had studied the effects of air at different angles and

all that sort of thing (R. 296). The court labored under

the error or misconception of law that, inasmuch as the

plaintiffs relied upon res ipsa loquitur, expert evidence

should not be received (R. 311). The objections made by

the defendant, and sustained by the Court, were based

upon the theory that Lee did not have a license, had not

flown DC-3 equipment, and had never been through an

accident of this kind (R. 292-338).

Thus the ruling of the trial court was clearly shown to

be erroneous as a matter of law. This is what was meant

by the Circuit Court of Appeals in stating that the ruling

was made under the wrong legal standard. It is thor-

oughly settled that the absence of a license in a particu-

lar field is not fatal to the qualifications of an expert

witness. It is likewise thoroughly established that if the

witness has gained his knowledge of the subject from

study, observation and experience, it is not necessary

that he be licensed by any particular board or bureau

having jurisdiction over the field involved. The knowl-

edge may be gained by study and study alone. It may be

gained from experience and experience alone. It may be

gained, as here, from a combination of both.

Fightmaster v. Mode, 31 Ohio App. 273, 167 N. E.

407;

Germania Life Insurance Co. v. Ross-Lewin, et al.,

24 Colo. 43, 51 Pac. 488;

Muskeget Island Club v. Town of Nantucket, 185

Mass. 303, 70 N. E. 601;

State Line & 8. R. Co. v. Phillips, 98 F. (2d) 651

(3 C. C. A.);

Lestico v. Kuehner, 204 Minn. 125, 283 N. W. 122;

Pridgen v. Gibson, 194 N. C. 289, 139 S. E. 443;

Peck v. New York Central & H. R. R. Co., 165 N. V.

347, 59 N. E. 206;

Malone- Mo Connell Real Estate Co. v. J. B. Simpson

Audit Co., 197 Ala. 677, 73 So. 369;

Lambert v. Virginian Ry. Co., 96 W. Va. 158, 122

S. E. 457;

Denver v. Atchison, Topeka & Santa Fe Ry. Co., 96

Kan. 154, 150 Pac. 562;

16

Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 51

S. E. 569;

Clark, et al., v. Horowitz, et al., 293 Pa. 441, 143

Atl. 131;

People v. Rice, 159 N. V. 400, 54 N. E. 48;

People v. Cox, 340 III. 111, 172 N. E. 64;

Golder v. Lund, 50 Neb. 867, 70 N. W. 379;

Kitchens v. State (Ala. App.), 14 S. (2d) 739;

Kentucky Public Service Co. v. Topmiller, 204 Ky.

196, 263 S. E. 706;

City Council of Montgomery v. Gilmer & Taylor, 33

Ala. 116, 70 Am. Dec. 562;

Selby v. Osage Torpedo Co., 112 Okla. 203, 241 Pac.

131;

Pearson, et al., v. Zehr, 138 Ill. 48, 29 N. E. 854;

Jones, Commentaries on Evidence, Vol. 3, Secs. 1314,

1315, 1316, 1318.

C. The Circuit Court of Appeals Properly Held That the

Testimony of the Witness Welcher Was Admissible.

Captain Gardner testified that if the safety belt sign

had been turned on during the emergency, and if there

was a spot of illumination up there, he would have no-

ticed it and that is his reason for saying it was off (R.

129, 130). He never again observed either sign turned

on up to the time of the crash (R. 130). None of the

crew came back into the cabin during the two or three

minutes involved and the stewardess did not issue any

warning about tightening safety belts (R. 130-131).

It will be recalled that Captain Gardner made such a

complete recovery that he returned to his service in the

Marines in the South Pacific (R. 120). Defense counsel

concedes that Captain Gardner survived this awful ordeal

because and only because he tightened his safety belt as

tight as it would go (R. 725). It may well be that if a

proper warning had been issued to the other passengers

so that they could have tightened their safety belts they,

too, would be alive today. us

The witness Welcher explained that for ten years be-

fore the accident he had noticed planes flying over his

home and had heard those planes every day (R. 169,

173). He had been listening to the sound of the different

planes and motors and that is what drew his attention

to this plane (R. 170). He went to the scene of the

wreckage the next day (R. 170). He testified to circum-

stances which would indicate that this particular plane

must have been the one which he heard during the night.

The time, the place, and the circumstances were such as

to practically exclude any other probability. It should

be recalled that an investigation was conducted by the

Civil Aeronautics Administration, the War Department

and the defendant, and no other aircraft was found to

have been in the vicinity at the time and place involved.

Hence, if this plane were in trouble and the motors

were being speeded up by those in charge in an effort to

establish control of it at a time when it was five miles

north of Fairfield, then it may well be that the pilots or

the stewardess, or both, were guilty of negligence in

failing to issue a warning to the passengers to tighten

their safety belts. In any event, this testimony estab-

lished merely a circumstance with reference to the time

and place of the trouble that was proper to consider in

connection with the general background.

Inasmuch as the Circuit Court of Appeals based the

reversal here principally upon the exclusion of Lee’s tes-

timony, and not Welcher’s, the matter does not assume

any controlling importance.

CONCLUSION

There is here no great principle of law at stake—no

need for its establishment or clarification. The authori-

ties with reference to the qualifications of an expert

witness present neither doubt nor conflict, and the only

problem arises from the application of established prin-

ciples to divers and varying fact situations.

The decision below neither establishes a new principle

nor clarifies an old one. Its affirmance or reversal here

likewise would do neither.

It is respectfully submitted, therefore, that this peti-

tion falls far short of presenting the special and impor-

tant reasons for a writ of certiorari required by the

rules of this Court.

Respectfully submitted,

WILLIAM H. DEPARCQ,

PARNELL BLACK,

Counsel for Respondents.

Of Counsel:

ROBT. J. MCDONALD,

DONALD T. BARBEAU,

BRIGHAM E. ROBERTS.