# Appendix — Eastern Air Lines, Inc. v. St. Clair (No. 374) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0577%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1960 ## Text TES y ’ Motion to Set Aside Verdict and for New Trial and Oral Opinion ‘ New Vork. [ Derereen gst vee tt” TH, Thos 5 Lint a elowk pr.tni. Mr. Tiektin: At the outset. may it please the Court, tay Lask fer waiver ef written: netice of metien ated eft services thereof, peturstuaenst te Rule Sof the Rules of Civil Procedure ? Mr. Reilly: We comititted in the admissien of evidenee and in charge of the court. Reversed anel remanded, App. 7 Opinion of thie Court of Appeals (oa ) Davin A. Ticktin, New York, N.Y. (Powers, Kaplan & Berger, New York, N.Y. on the brief), for plarutiff-appe Thant. JOHN G. Reatnyt New York, N.Y. (Robert ‘FP. Ewald and Bigham, Englar, Jones & Hons- ‘slip uf? ‘ton, New York, mc , on the ‘brief ), for di fe ndant-apipe hee, LtuMBarp, Chie f Judye: Josephine St. Clair, widow of Harold St. Clair and exeentrix of his estate, appealsigrom a jury verdict in her favor in an action for damages for the wrongful death of Mr. St. Clair, allegedly caused by the negli- genewe Of Eastern Air Lines. The plaintiff's deeedent was killed on November 1, 1949, when an Eastern Air 1 iRes D'-4 in which he was a passenger collided 1" m@-air with a Bolivian plane as the DC-4 approached liability under the law of the District.of Columbia for the decedent's death was established in a suit brenght by the estate of another passenger Killed in the same aeetdent, by whith determination the parties agreed to he houmd.! The sole matter at issue in this litigation was therefore the amount of tke\ damages to be awarded the Rypellant under the Distrieteof Columbia Wrongefil Death Aet. DL ©. Code S16-1201, whieh per- \ e Frnt ) Puited States. DIB E Supp. st Py ee €. YS. neaditied, 22b RF 2a DOC. Cir. defemdant’s appeal at ts of Let OS OT plaimtaths” appeal eert. deat, ob te wD ‘ Burstern er Lemes. Ine. vil NM HOPP Trust ¢' “)-)] Kk at | ti De ip o. peversed. ROT S S07 019550. modified and remitted ring, (1) POS. 862 0on remand, 230. F. 2 to OD. Cir Washington National Airport for a landing. Bastern’s ” r fe Apps Opinion of fhe Court of Appeals mits recovery only for) funeral expenses and the pecuniary loss suffered by the spouse and next of kin The plaintitt sought (3070) damages of 350,000) cre ‘the jury returned a verdict) for > 24,000, of whieh *15,000 Was allocated to the plaintiff and. the balatee to decedent's minor child by an earlier marriage. * Plaintiff assigns numerous errors in the admission of evidence and in the trial court's charge to the jurs ‘and.asserts also that the ‘verdict should be set aside as grossly inadequate, Beeause we conclude that the trial court was in errer in admitting considerable testimony irrelevant to the decedent's prospective earning ability, and the plaintiff's consequent pe- enniary loss, and that this evidence may well have inflmenced the jury's verdict, we reverse the judgment and remand the case for anew trial. At the trial defense counsel cross-examined the plaintiff at length concerning the circumstances of the init i acquaintaneeship between the plamtiff and her deceased husband, plaintiff's PES AT at the time she began seeing him that he was then married te another woman, her familiarity with the progress of the divorce suit brought by his prior wife, and whether the decedent had been living at the plaintiff's apart-. ment prior to their marriage, This testimony was, admitted by the trial -court, over the objections of plaintiff's counsel, ou the theory that it was evidence of decedeut’s character and that his personal qualities and habits’ were’ proper considerations in determining his business capacity, the amount of suppert that Ihe would contribute to his family, and the likelihood of, his tingueial advancement. We th uk that the test! mony was irrelevant to the question of the peenniary App! ° Opiuton of tha Court of Appeals loss suffered lay the polainitift cnie hy the theemdeut’s | ebild and should not have been admitted, Undoubtedly personal habits and quatities, are te some degree reievant considerations in determining an individual's earning ability’: and the support. that his family would (338) have received from hime bit for his death. Thus, courts have held in weowgful death actions under statutes similar to that of the District of Columbia that it was proper to show that a decedent had been undergoing treatment for mental illness immediately before his death, Eder vo Cashin, 281 App. Div. 456, 120 N.Y. S. 2d 165 (1953), or that he engaged in greatly excessive drinking, Welliaine \. Metropolitan Street RailwayCo. TA Ay. Div. 497, 77 N.Y. Supp. 426 (1902). Such evidenee is relevant because the trier of fact Shay reasonably think that these traits affeet the individual's ability te keep and nudntain employment; it also bears on the theliheod that his funds will be used for the benetit of his tamil rather than be expended in other ways. For tHe same reason, it would probably be appropriate. for example, to receive evidence that a deceased toed a repute: ton among his) business associates oor employer: for dishonesty or irresponsibility. See “Annet. 163 A. 1 1. DAs. : That some aspects of a decedent ’s character toety properly be shown in deternvining the damages to he awarded in oa wrongful death aetion does qot mean, however, that all his habits and qualities are relevant, See, ape 8 Lipeonh vs Floustow & pak Se R. rh, WO Tex, 210, 64.8. W928. 927 C1901). The defendant shold Het be permitted to put i evidences auvtheug die mins, unearth which retleets unfavorabls pon The decedent Except as they may show a propensity of the decedens App. 10 Opinion of the Court of Appeals to spend his income in ways which do not inure to the ‘benetit of his family, the details of his personal lite are not in issue and, in the present case, the history of St. Clair’s relationship with the plaintiff bore no relation to any matter which was.in issue. The manner'in which men choose to conduct their persenal lives very often has little bearing on the way that they manage their business affairs. In the absence of some preliminary shewing to the contrary, a court ought net to (359a) suppose that evidence of the former is of utility in determining the latter. Moreover, in the case before us, any remote evidentiary value that the details of the decedent's personal life may have had was far outweighed by the certainty that prejudice to the plaintiff’s case in the minds of the jurors would result from the introduction. of evidenecé showing in an itl light not only the decedent but. the plaintitf aus well, oo Plaintiff also urges that it was error for the trial court to permit appellee's counsel to read to the jury certain extracts from the deposition of one Stoller. Stoller had been a business associate of the decedent, In. his deposition on direet examination by the ap- pelee he testitied repeatedly and tmequivocally that he “hever had seen the decedent drinking onthe job or indeed under the inthuenee of aleohol in 1949, Oy -‘Qyess-examination by Mr. Clark. an assistant United States Attorney, in behalf of the United States whicl Was then a party te the action, Stoller admitted that he reealled having been interviewed by one Brady «! the Federal Bureau é6f Tnvestigation. But when om peated!y asked if lie had uot tebd Brady that o business oreasions he bad seem the defendant who Hinabte te sign cheeks beeause of his aleoholie eon App. dd Opinion of the Cort of Appeals: tion and that-the decedent had left his employment because he may have heen an adeoholic. the witness consistently demied having: made such statements to Brady. Thus the deposition laid a preliminary founda- tion for a contradiction of Stoller’s deposition testi-’ mony, if that should be offered at trial, by calling brady at the trial to testify to, the ineonsistent out- of-court statements which Stoller,on deposition had heen confronted with and had denied. At the trial the appellant read portions of Stotler's examination on deposition by counsel then represent- ing the defendant and by Clark. Appellee’s trial counsel Was then allowed over objection to read inte the record in the (340a) presence of the jury portions of Stoller’s ‘deposition containing Clark's questions purportedly reciting these ieonsistent statements given to epi By this indirect technique, counsel succeeded ino putting before the jury subject-matter “of questions, prejudicial to the plaintiff’s case. the only legitimate purpose of whieh was te lav. the foundation for contradiction by Brady. Bat counsel never called Brady nor was there put into the trial record a shred of evidence to show ‘that the deponent Stoller had ever made ouut-of- comet statements iran - sistent with) his deposition testimeny, Atos nnfortunate that thectrial judge. when supped: lees counsel sought te read te the Jury Clark's qnes- Tens. fatled te inquires as die doubtless wenld have dane if requested hy appellant's counsel, Whether hie Hppetiee’s eomnschs intended te prether Brady as an iMipesehinge Wittess, Upon a megidive arswer te sieh Phequiey, dt weoald hayes been elearly: errereons te ermit tine reseltie oof GVark*s dheteositter: catestpeors.” App. 12 Opinion of the ¢ ourt of A prpe als People vo Stinders, 192 N. FE. 697, 702 (UL): Morton Vv. Mozin, 92. N. BE. 691 (LIL). -Ct. Kesten ve Fortes, 273 App. Div. 646, 78 No YOS. 2d 769.0 Maller ve Men derson, 124 A. 2d 23 (ON. J. Superior Court), is net te the contrary. It was there held that on frial a party Was entitled to cross-examine a witness as to an outs of-court: statement notwithstamding ‘counsel's refusal to represent that in the event the witness denied.mak- ing the statement competent proof thereof would be offered. The situation was such that counsel could hope to develop answers. by the witness or demeanor conduct likely to“have an impeaching effect. But in this case that objective was served not at all by read- ing from the deposition Clark*s questions and Stoller’s answers: it was plain that the questions were harmful in their content to the plaintiff's ease and that the answers given, without) Brady's testimony in eon- tradiction of the deponent, had not the slightest tendency to impeach. (S412) It would, of course, have deen improper for appel- lees counsel to have read the que stions for the purpose of putting their prejudicial content before the jury With nocintent to make use of-the foundation this laid by calling Brady. 98 CLIO. 68597, 594. But on this reeord sueh miseonduet may net be attributed to counsel: for anght that appears, counsel at that stage of the trialiay have intended te offer Brady. Never- theless. it is plain that the content of the quest fats Was prejudicial: Tt was errer te permit them: te |: read without assurance that they were needed as neces sary foundation for contradicting testimony bw Brass iii PAGE Keston Vv. Forbes, 273 App. Div. 646; 78 N. Y.S. 2a 768 ..... eS Pe eer ES eae fie Ahaha os 44 Lipcomb v. Houston & T. C. RB. Co, 95 Tex. 5, OE Oy, Wes We CHUN: oles cuceceaccbatruede , Lockwood v. New York, L. E: & W. R. (o., 9 Pe Ba EO eh ss essa ose kaa sa ee ea 32 Miller v. Henderson, 124 A. 2d 23 (N. J. Superior GANS ah Fesin che Oech eeieec erent 44 Norfolk & Western Meitees Co., 235° U. S. 623 (1915) 2... ree oie fee es es 29 O'Connor v. U.S. 269 F, 2d 578 (2 Cir. 1959) ... 38 " People v. Ferraro, 293 N. ¥.51 (1944) . 20.0... 42 People vy. Sanders, 192 N. E. 696 (Minis) ..... 43 Philadelphia & R. R. Co. v. Baker, 155 Fed. 407 (3 Cir. 1907), affirming 149 Fed. 882 ....... 33 Philadelphia d& R. Ry. Co. v. Bartsch, 9 Fed. 2d 858 (3rd Cir.) ........ ee eh ee 43, 44 Railroad Company Vv. Barron, 72 U. S. 90 (1866) 30 Rankin v. Shayne, 234 F. 2d 35 gees D. C.1956) 32 St. Louis & S. F. RB. Co. vy. Duke, 192 Fed. 306 (8 Cir. 1911), affirming 172 Fed. Oe cco oes. 34 Southern Pac. Co. ¥. Lafferty, 57 Fed. 536 (9 Cir. carte EEE EEE CE eee Of Speich vo Cromley, $4 F.2d 543 (3 Cir. 19: 8), af- firming 19 F. Supp..857 ...0...00..0...... 33 Stafford v. Roadway Transit Co.. 165 F. 2d 920 (3 Cir, 1948), affirming 73 F. Supp. 458 and 0 MO ON ae eee. Soe ert 33 Tate x. Nelson, 71 F. Supp. 465 (D: D.| Sos, S61, Nor Was the resulting harm enred: by the charge, ‘The judge not only refused te « harge that a witness*s pr lor inconsistent statement Was hot to be considered as substantial evidence of the faets stated therein2 but he told the jury that whether or net Stoller prs made an inconsistent statement to am FBI. agent *l entirely up to vouand within your sole and Tees ie province.” This was erroneous. If, as indeed the Judge told the jury, there was ne evide ‘nee of an in- colsistent statement. surely it was not for the jury to find that oue had been made. And the error of ste hi an iustruetion was not eured by the judge's accom- panying observation that the failure .te produce the PBA. agent was important for its corroborating effect in lending credibility. tocSteller’s denial of an incon: sistent) statement. This, doubtless, was somewhat helpful to the plaintiff's ease. But only an instruction to take Stoller’s deposition testimony as wholly u contradieted would have sufficed. Ct: Behrman. \. Stas, D.C. Cir, 157 FB. 2c 862. (O42 ) We conehide-that the error in permitting the read- ig of Clark's questions, and in the related charge and the refusal te charge, were in themselves sufti- deutly prejudicial to require reversal. Beéeause of these errors and those disetussed earlier, the ease is Reversed arid remanded, Diese & Partridge Mfgt Ca. v Crearu, 116 U.S. 161. Nati snal Labor, Re! (1D ONS Board Ss Chive st-Nion Vark Brassiere Ca a Ine 2 Cir, 185 F. 2d 285: People. Ferrara, 203 N Yo51,55 NE 2b S61 : Peowe v. Vale line. Vs) NW. os, “EN EB. kl 55] ' App. 14 (343a ) : Judgment of Court of Appeals UNITED STATES COURT OF APPEALS For THE Skeconp CIRCUIT At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Courthouse in the City of New York, on the seeond day of June, one thousand nine hundred and sixty. Present: How. J. Epwarp Lumsarp, Chief Judy, Hon. Carroti C. Hixcks, Hon. Henry J. Frienpiy, Circuit Judges. i. — JOSEPHINE A. St. CLAIR as Executrix of the Estate of Harold W. St. Clair, deceased, | ae Plaintiff-Appellant ¥. Eastern Atr Lines, INc., Defendant-A ppelles > — Appeal from the United States District Court for the Southern District of New York. This cause came on to be heard ou the transcript of record from the United States District Court for the Southern Distriet of New York. and was argued by counsel, : . ON CONSIDERATION WHEREOF, it is now hereby or-. dered, adjudged, and decreed that the judgement of said District Court be and it hereby is: reversed and the action be and it hereby is remanded in accordance with the opinion of this court, with costs to the ap- pellant. | A, DaNIEL Fusaro, | Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0577%3A3. Public record. Not legal advice.