Petition for Writ of Certiorari — Payne v. United States

ae ol aa

—=-+em * “FPrerto

Bprao: .' COURT. U 6, SEP 2V 1b)

JAMES R. BROWNING. Clerk

IN THE ——

Supreme Court of the Uuited States

OCTOBER TERM, 1961 |

No.4 a 6

2

-

KONINKLIDKE LVCHTVAART MAATSCH APPL NOV. KEM

Royar DercH AIRLINES TOLLAND and SocleETE

ANoxnyYME BeLok D’Exprorration Dr La NAVI-

GATION AERTENNE,

Petitioners,

—against—

Gerreepe Owen Tiber. individually and as Execu-

trix under the Will of William Gordon Tuller,

deceased, KaTHeryn L. TULLER, a ininor hy

GERTRUDE OwEN TULLER, her mother and next

friend, and Jean BE. Tver, a minor by: Ger

crUDE OWEN TULLER, her mother and next friend,

Ie spond uts.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT-OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

WittraM J. JUNKERMAN,

Counsel for Petitioners,

SO Broad Street,

New York 4. N. ¥.

[

\\

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

Opinions Below

The Questions Presented

Treaties, Rules and Trish Order Luvelved

II.

III.

Conelusion

Oe Ae ir se CO a ae a ad lik. a a ea te,

The Court of Appeals has se far sanctioned

departures by the distriet court from the

accepted and usual course of judicial pro-

ceedings as to eall for an exercise of this

Court's power of supervision

The Court of Appeals has interpreted a

federal treaty in sueh a manner as to ren-

der the treaty nugatory and void 20.0.0...

The Court ef Appeals has decided a ques-

tion involving important rights asserted in

rehance upon federal treaty obligations

Which has not been, but should he. settled

by this Court

Appendix

Pertinent Provisions of the Warsaw Couven-

re ee tree ena ete se ee

Rhea ee ee ee

Trish Air Navigation (Operations) Order, 1953

Opinion of Court of Appeals

ae a oe ee a ae on oe ee er Or,

19

(asks

PAGE

Amiable Isabella, The, 6 Wheat. 1.19 U.S. 1

Ne et eal a wy hie ob was os ze

Baltimore & OLR. Co. v. Felgenhancr, WS F.2d

We A OD ick ewe eerebesvanes Ps

Graham Vv. Belfast and Northern Counties Rail-

wag Co., (9900) 21, TS... 6c. eee. 2)

Horabin Vv. British Overseas Airways Cor pora-

fiaw, (70921 2 A.B. WO ................. =F

Kelly v. Malott, 125 Fed. 74 (7th Cir. 1905) 2... 21

Kolovrat v. Oregon, 366 U.S. 187 (1961) 2.2... 4

Lewis Vv. Great Western Railway Co., [1877] 3

ics SRE OM ec ie ee r 20)

New-York, New Maven and Hartford R. Co. v.

Givay, 240 F.2d 460 (2d Cir, 1957) 2. .0.0.. 21

Shepard v. United States, 290 U.S. 96 (1933)... 19

Southern Ry. ve Gray, 241 U.S. 333 (1916) .... 18

TREATIES

The Chicago Convention (61 Stat. 1180, et seq.) 3.9

The Warsaw Convention (49 Stat. 3000, et seq.)

a. by 4, 1d, 19, 21, 22, 23, 24

Renres

Federal Rules of Civil Procedure

I Coie tcl Beirne sate 8 18

NT I ae ey tig et te ar cay Syn Soe 4

Wl gilt

Onhprens

, PAG.

Irish Air Navigation (Operations) Order, 1953,

WTene COEUR ONE os oo a pa es s

AUTHORITIES

A NO ie ne Sea iva ar Oanti 5. eis S 15

Wigmore on Evidence, Third Edition

Ee DG, hie eee mr art Pa 1S

UG RRR ail PoC et Catt kot ee eae ene 1s

I he ee 1s

Parl ve :

5 dg

© ~ ae

~~ Yu 4 i 7

a :

ome . : Ss 1.

ras : ir

=~ j P) « 7

« J «

: ‘ : ‘

IN THE

Supreme Court of the Wuitrd States

OCTOBER TERM, 1961

~ No. '

- =

——

KONINKLUIKE LUCHTVAART MaatscHarpins N.V. NEM

Royal Dercu AirRLINES HTHOoLLaANp and Sociere

ANoNYME Beck D'Exprorration Dr La Navi-

GATION AERIENNE, |

Petitioners,

—agraliist —

GERTRUDE OWEN TULLER, individually and as Exeen-

trix under the Will of William Gordon Tuller,

deceased, KaTHERYN LL. TULLer, a ominor by

GERTRUDE Owen TULLER, her mother and next

friend, and Jean EF. Tunirer, a minor by Gerr-

TRUDE OWEN TULien, her mother and next friend.

Respondents.

La

—_

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

To the Honorable, the Chief Justice aud the Associate

Justices of the Supreme Court of the Uuited States:

The above-named petitioners respectfully pray for

issuance of a writ of certiorari to review the Judgment

of the United States Court of Appeals for the District

of Columbia Cirenit. entered herein June 25. 1961,

-

affirming the judgment of the United States District

Court for the Distriet of Columbia entered on Janu-

ary 12, 1960,

| Basis of Jurisdiction

The jurisdiction of tis Court is iuveked under 25

U.S.C. 91254 (1).

Opinions Relow

Following the rendition of the jury's verdict de-

fendants moved for judgment notwithsianding the

verdict and in the alternative for a new trial. This

motion was overruled without opinion by the district

court on February 8. 1960. The opinion of the Court

of Appeals affirming the judgment of the district court

is not vet officially reported but a copy thereof is

printed in the Appendix infra, pages a1 to a2.

Petitioners seek a revicw of the determination of

the United States Court of Appeals for the District

of Columbia Cireuit affirming a judgment of the

United States District Court for the District of Co-

luyibia awarding respondents the stm of $350.000 for

the death of respondents’ decedent as an aftermath of

an airplane accident in the estuary of the Shannon

River in Treland on September 5, 1954. The flight

was “international transportation’ within the terms

of the Warsaw Convention. an international treaty,

to which the United States has adhered, and) there-

fore the action was subject to the limitation provi-

sions comained in Article 220 thereof which Jimits

recovery to S800 inthe absence of wilful misconduet.

The Questions Presented

1 Whether the lower courts in the ease at) har

nave so Hacrantly disregarded the rules of law wovern-

ing limitation of Tiability. and wilful miseonduet as

detined by the Warsaw Convention as ty nullify and

destroy the Convention, thereby requiring this Court's

power of supervision,

2 Whether in-equating “wilfal iiiseonduct™ with:

“the negligence im question’, the Court. of Appeals

has totally disregarded the intent: of the drafters of

the Warsaw Convention, so as to render that treaty

ungatory and void and deprive petitioners of rights

under the treaty.

3. Whether the sanction by the Court of Appeals

of the misuse in the distriet court of an order or

regulation of the Trish government, found not to have

been violated. but forming a major basis of respoud-

ents’ claim of wilful misconduct, was such oa flagrant

departure from the accepted and usual course of

judicial proceedings as to require the exereise of this

Court's power of Supervision over both courts.

4. Whether the Court of Appeals. in order te sts-

tain the verdict of the lower court, (ay did net excced

its powers by pronounel ig a new rule of law requiring

airlines to instrnet passengers with respect to Tfe

vests before taking off from orunwavs in foreign

countries. and! (hb) did net by sie prenonneement

ignore the Chicago Convention. an ieternational

treaty, thereby requiring au exercise of this Court's

power of supervision. :

5. Whether in permitting respondents to iimpeaeh

one of their own witnesses by use of lis prior state:

ment, net partoef the res gestae but extremely prejue

dicial to petitioners beeatise of its iuttiumiatory tit

ture, the distriet court se far denarted frome the

aeeepted aud usual course of judietad proceedings is

tr require ap exercise of this Court's powers of SUper-

Vision.

6. Whether the distriet court's denial to peti-

tioners’ attorney of the right to object to its charge

to the jury. in contravention to Rule 51 of the Federal

Rules of Civil Procedure, was such a departure from

the accepted and usnal course of judicial proceedings

as to require an coxercise of this Court's power of

SU PervIsion, ;

7. Whether the district court’s charge on five oe-

easions that Sabena. the dispateh agent, was lable

for the misconduct of KILM. the principal, just as the

prine:pal was liable for the agent's misconduet, and

the Court of Appeals’ sanction of such a charge, has

established a rule of law in confliet with the basie laws

op principal and agent,

Treaties, Rules and Irish Order Involved

Treaties

Convention for the Unitieation of Certain Rules

Relating to International Transportation by Air [49

Siat, BOO, et seq.]. commonly Known as the Warsaw

Couvention.

Convention on Tnternational Civil Aviation [61

Stat. T1S0, et seq.}. commonly known as the Chicago

(Convention,

Rules

Rule 20. subselivision ¢f). and Rude oD of the Joel.

eral Rules of Civil Procedure.

Order

Seetion 23. subdivision (6) Gii). of the Trish Ai

Navigation (Operations) Order, 1995,

Pertinent provisions of the foregoing treaties, rules

and order are printed ja the Appendix infra, pages

o> Te 0,

Statement of the Case

Petitioner, KLM. is a Dutelesuirline engaged in

International transportation age)

organized aud existing Wider the laws of the Neth-

erlands. Petitioner, Sabena, is a Beleiaa airline

engaged in iaternational trauspertation wud is a cor:

poration organized and existing under the laws of

Seloium. = The deeedent, Willian: Giorden “Puller.

Was a passenger ona flight of KLM from Aisterdain

to New York whieh erashed not more than 42 seconds

after becoming airborne on its takeoff from its hiter-

mediate stop at Shannon. Preland. Phe pliaue erastied

ino the Shannon Estuary ata peint tpproxiniutels

“Is oa vorborat len

a> he

7.325 feet from the end of the airport runway. \-

the wheels of the plane left the ground. the control

tower radioed its precise takeoff time but one ae-

knowledgmient was received frome the plate. Iie

ceiving noe response. the tower tiade repeated at:

tomnpts te make radio contact, without ~teeess,

t)

After the plane became airborne, the pilots theaght

that the plane was ehiabing ino the darkuess when

it suddenly made contact with the water and the

erash resulted. Tmmediately after the erash and

in order to prevent fire the maim switell was ent,

thereby throwing the plane inte complete darkness

but the erew evacuated passengers inte two rubber

dinghies which were ejected from the deft) wing

by a mechanical release handle located in the cock-

pit. Tuller and another passenger made their escape

through a rear escape window and swam to the tail

of the plane which had, in the meantime, settled) suth-

ciently to enable them to clinb up upon the tail.

At the time they evacuated the plane they did not

know that it had come down on the water but thought

that it had come down on land (JA 111Ja).* Some-

time later, pursuant to the command of the plane's

captain, the first dinghy. in charge of. first officer

Parfitt, attempted to work its way to shore. Shortly

thereafter shouts from the tail of the plane were

heard by members of the crew in the second dinghy

and the crew in that dinghy then attempted to maneu-

ver the dinghy around the wing to the tail but their

efforts were unsuccessful due te the tide and wind

and the size of the paddles.

For over four hours Tuller and his companion re-

mained on the tail in a rising tide. Near dawn, after

a member of the crew from one of the dinghies finally

reached shore, information of the erash and its loca-

tion reached the tower, and a launch was dispatched to

the crash scene. Just as the launch approached, with

the water by then chest high, Tuller sliook hands with

¥ A references are to the Joint Appendix ino the Court) of

Appeals.

his companion, Waved te the lately lest tis foetus

and slipped into the water (PA T1Gass bis bods wir

later reeovered. Els. the other patssenwer oon the

tall was resened,

The jury was instructed that under the Wiursiaw

Convention. Whieh the court riled covered the dabiliny

of the airline and Sabena. its dispateh agent. the dam-

ages were te be Hiited te SS 000 untess defendants.

or either of them. was guilty of stwilftll miseenduer

In Whieh ease the S8500 limit did net eontrol The

jury returned ao verdiet for the plaintiffs imo the

amount of S250,000,

At the close of the entire ease the trial judge demied

defendants’ motion that it direct the jury ‘that in the

event that they find wilful miusconduet that they spee-

ifv in a special verdiet what the acef of wilful iis-

econduet is that they found OLA S72a). Consequently,

What act or acts the jury may have considered to be

Wilful misconduct is unkuewn. The Court of Appeals

determined that the alleged wilful mioseonduet of the

appellants fu this case resolved itself inte: four ele.

ments, to wit: (1) failure te properly distruet pias-

sengers of the location of Hfe vests and in their use:

(2) failure to broadeast an emergency messages 05)

failure to take steps to provide for the safety of

Tuller after his pert] was kiewn: end ¢4) failure of

Sabena to be aware of the loss of radio commanieation

with the plane and to dmitiate prompt searel and res-

ene operations (App. 37 ).*

®FNppo references are to paves of the aprendix te this petitien

REASONS FOR GRANTING THE WRIT

I

The Court of Appeals has so far sanctioned de-

partures by the district court from the accepted and

usual course of judicial proceedings as to call for an

exercise of this Court’s power of supervision.

A. The Alleged Wilful Misconduct in Failing to Instruct

Passengers of the Location of Life Vests and Their

Use is Based Upon a Total Disregard of the Control-

ling Effect of Irish Law and the Chicago Convention.

Respondents’ proof concerning this item was the

testimony of passenger Ellis that no announcement

or instructions concerning life vests was made to the

passengers before the takeoffs or during the flight

from Amsterdam to Shannon and that he did not

know where the life vests were located. Respondents

also introduced into evidence an order or regulation

of the Irish government. This regulation did not: re-

quire life vest instructions unless and until a flight

was more than 30 minutes travel frem land (the Trish

coastline). This fight, of course, crashed less than a

minute's distance from the airport and had not even

reached the Trish coastline. The Court of Appeals

recognized that the regulation was not violated (App.

37) but then it made the remarkable statement that

“We are not bound by the limits of the Irish Govern-

ment's regulations as to when life vest: instructions

should be given to fulfill the duty of care owed to

passengers," (App. 38)

The foregoing statement by the Court of Appeals

was in direct disregard of Artiele Tl oof the Chieae

Convention CApp. 28). an international treaty and

therefore part oof the supreme law. of othe latid.

Pursuaiit te that treaty provision. the Prish laws and

regulations relating to the operation of alreraf! on

gaved im international air navigation while within

Irish territory were the laws and regulations to be

applied to the tlight involved in this litigation. —

The Court of Appeals also stated that ‘tthe jury

could reasonably have inferred that if Puller had

heen wearing a TY¥e vest his life could) tave been

This econmietely ignored the fact that plain-

tiffs’ counsel, out of the hearing of the jury, adimit-

ted that decedent died ‘* from shock and exposure and

not from drowning’ G)A So8a) while arguing for

the introduetion into evidence of a death certificate

of the Trish governinent.

saved.

In his closing statement, plaintiffs’ counsel he-

labored the point that KIM had vielated the Trish

regulation (JA S74a-9760a, 997a) and. over defendants’

objections, the court permitted Hine te continue with

such argument GPA 6300). And in his final coneliud-

ing remarks he again charged that WIM had violated

this Irish regulation (JA 633a). Nevertheless, despite

the distriet court's ruling during the trial that what

had transpired with relation to the trip from: Amster-

dam to Shannon was immaterial and should be ex-

eluded GJA 18a, 286a). and despite the Court) of

Appeals finding that the Prish regulation Was not vie-

lated, the latter made the incomprehensible statement

(App. 43) that ‘tthe applicability. of the [Trish]

order was a fair subject of comment in argument and

there is no substantial basis for disturbing the verdict

on this eround.’

q

pts

B. The Second Alleged Item of Wilful Misconduct, to-wit,

the Failure of the Crew to Broadcast an Emergency

Message, Is Based Upon the Erroneous Admission

Into Evidence of Irrelevant Documents, and the Fail-

ure of the Court to Properly Charge the Jury or

Afford Defendants an Opportunity to Except to Such

Failure.

In its opinion the court speculates as fallaciously

as did plaintiffs’ counsel in his stummation as to what

effect a distress message with the words **May Day”

night have produced if such a message had been

sent by a member of the crew. Phe court: asserts

that if such a message had been sent, the authori-

ties would have’ immediately been aware of the

erash and that rescue equipment would have been

dispatched) promptly rather than four hours later.

However, nobody so testified at the trial. As a prae-

tieal matter, if sneha message had been sent it would

not have alerted or advised anyone that the plane had

erashed ; it would merely have indicated that the plane

was in trouble but not whether it was in the air, on

the ground, or in the water.

Additional serious error was committed by the

introdnetion into evidence of pages of a KLM manual

relating to planned ditching procedures. Parfitt. the

copilot, pointed out that these ditching procedures re-

ferred to ‘a planned emergency landing on water”.

whereas “an involuntary contact with the water * **

ix more in the nature of a crash’’ and that he would

hot call the latter a ditching (JA 21a-212a). Plain-

tiffs’ counsel then read from a prior deposition in

which the witness had testified GUA 21a):

"Q. What instructions do vou have in case of

i]

an involuntary Landing om water! AL Phe only

thing one ean do in ease of an inveluntary laned-

ime on Water is te try te earry out as many of

the instructions for ao planned: bhuidinge on water

ascare possible. Some of these iigtructions re-

quire) foreknowledge anda certain amount of

time to organize the ditehing.”

Jased on this wholly improper foundation and despite

the fact that the witness had stated that a) planned

ditehing and oa erash were two entirely different

things, the court admitted the pages. relating to what

should be done before a planned ditching, inte evi-

dence. Thereafter, plaintiffs’ counsel read to the

jury such provisions about notifying surface stations

and ships of an emergeney as soon as it arises (JA

4370-4380). and in his summation. plaintiffs’ counsel

Was permitted to make improper accusations agaist

the crew for not performing duties described in these

pages, although they were wholly inapplicable to the

NWhanticipated crash,

In overruling defendants’ objection te the iitrodiue-

tion of the pages of this imanial inte evidence, the

trial court said (2A 49a): When DT charge. TP owill

try to give the jury the situation.”

However, the court never did) charge or instruct

the jury on this matter and defendants” counsel was

deprived of the right to except to the court's failure

to do so. This was a partienlarly serious error in

view of the charges of plaintiffs’ couse! ti sumima-

tion concerning the failire of the radio operator te

perform duties referred to in this irrelevant exhibit

(JA S7S8a, oS4ai,

4

The Court of Appeats not only condoned these prrcy-

udicial errors but actually quoted one of these irrele-

vant paragraphs from the KIM manual in its opin

ion, ax support for its affirmancee of the judgment

(footnote App. os).

C. The Third Alleged Item of Wilful Misconduct, to wit,

the Failure to Take Steps to Provide For the Safety

of Tuller After His Peril Was Known, is Based on the

Sheerest Speculation on the Part of the Court.

The Court of Appeals found, as it had to, that the

erewnien in the second dinghy had attempted to mia-

“neuver the dinghy around the wing of the plane to

the tail to rescue Tuller as soon as they heard shouts

from the tail. The court also found that ‘tthe round

rubber vessel would not respond to their paddles and

instead drifted with the tide towards the shore.”

The court then speculated on various methods which

it assumed that the crew might have followed in

efforts to rescue Tuller from the tail of the plane

(App. 40). However, each such suggested course of

action was not only impractical but there was not one

word of testimony that any such suggestion could

have been followed on that fatal night—considering

the condition of the plane, the darkness, the tide, and

the wind in effect at that time. As a matter of fact,

to suggest that Tuller could have been saved by he-

ing led along the slippery curved top of the outside

surface of the fuselage of the plane, as the Court of

Appeals did, is ridiculous, A) rescue over such a

surface on dry land in the daytime would have been

an extremely hazardous feat but it) was totally im-

possible under the conditions that existed on the

hight in question. Yet it is upon the failure to take

ls

just such “rescue actions” that the Court of Appeals

attempts to spell out wilful misconduct on the part

of the defendants.

D. The Fourth Alleged Item of Wilful Misconduct, to wit,

the Failure of Sabena to be Aware of the Loss of

Radio Communication With the Aircraft and to Ini-

tiate Prompt Search and Rescue Operations, is Bascd

Upon an Improper Charge to the Jury to Which De-

fendants Were Denied Opportunity to Except.

Everything that was possible to be done was being

done by the governmental authorities to make contact

with the plane from the time it departed from the

Shannon Airport up to the time the first) survivor

reached shore. Tlad Sabena known that the plane

Was out of radio contact immediately following the

takeoff, the only thing it could have done was to urge

the Trish government control services to make every

effort to make contact with the plane. However, that

is exactly what these air traffie control services were

doing from the time of takeoff until the time the

plane was discovered (JA 525a-568a). The testimony

In the case was undisputed that all of the air traffic

control services were provided by the Lrish goverii-

ment; that the search and rescue facilities were also

provided by the [Trish government for all users of

the airport; and that the government officer in charge

of the air traffic control was responsible for alerting

the search and rescue organization if it) should be

required, |

It was also the uncontradicted testimony that the

government traffic control was responsible for seeing

that the position reports which the aircraft should

send were received within a specified time and that

14

if the position reports were not received, that traffie

control would ea!l the Ballygireen radio station and

ask that steps be taken to get such reports.

Near the close of the trial, plaintiffs’ attorneys

brought out on cross-examination of the witness Mell-

ing, that Aer Lingus, an Irish airline, was the opera-

tional representative of KLM at Shannon and that

Sabena under its contract with KLM was supposed

to keep the operational representative informed of

all movements of KLM aircraft and of any retarded

progress or interruptions of these flights (JA 519a-

520a). There was also read into evidence by plain-

tiffs’ attorneys, one of Sabena’s answers to an inter-

rogatory which pointed out that the operational rep-

resentative was “‘responsible for ground handling

of Carrier’s [IKXLM’s] aireraft’? (JA 61a). How-

ever, there was no other testimony as to what was

required of this operational representative. Never-

theless, in the absence of any proof on the subject,

the Court of Appeals gave its opinion that Sabena

was guilty of wilful misconduct because it failed to

‘initiate through Aer Lingus emergency surface

eraft investigation in the area of the known takeoff

pattern.”

The Court of Appeals also made the unsupported

and incorrect finding, based solely upon the gratui-

tous statements of plaintiffs’ counsel during summa-

tion, that ‘Aer Lingus was the local facility capable

of instituting a search.”") The inferenee on the court's

part was that if Aer Lingus had been alerted by

Sabena, Tuller’s death might have been prevented.

This was the rankest and sheerest speculation by the

court aud was based upon no evidence at all.

inf

The triel court had charged that KILM and Sabena

were covered by the provisions of the Warsaw Con-

vention and that Sabena was the agent of KIM

(JA 659a). With this part of the clyrge, the Court

of Appeals apparently agreed (App. 34, 45). However,

tive times during the charge to the jury. the court

indicated that the jury might bring in a verdict in

exeess of $8300 against both defendants if they found

an act of wilful misconduct on the part of “either”

of them.* Under this ehorge the agent was held to

be liable for the aet of the principal; a concept of

liability utterly foreign to the laws of principal and

agent, 2C. J. 824.

At the conelusion of the court's charge to the jury,

counsel approached the bench to note their objections

or exceptions to the charge. After two of plaintiffs’

counsel had noted their objections and requests, de-

fendants’ counsel attempted to note his objections

and the following transpired (JA 648a) :

“Mr. Junkerman: Does Your Honor wish us

at this time to express our exceptions ? 3

The Court: I took this charge up with both

counsel, and in the circumstances, there is no

exception to the charge. Now, don’t tell mie

that there is.”’

Despite the foregoing and despite the fact that

appellants raised this point on appeal, the Court of

Appeals ignored the record and said (App. 51):

“We have examined the portions of the reeord

* This statement appears in the Joint Appendix on the last

two lines of page 640a; on lines 15 and 16 and on lines 517 and 52

of pave 64a; on lines 3 and 4 of page 642a; and on lines 22 and

23 of page b4ba.

16

relied on by appellants to show that the District

Judge in some way impeded or prevented the

recording of a timely objection. We are satis-

fied that appellants had full and uninhibited

opportunity to object to the charge concerning

the liability of Sabena if they desired but failed

to co so.”’

E. The Court Permitted Gross Abuses in the Misuse of

the Radio Operator’s Deposition, in Allowing Plain-

tiffs to Impeach Their Own Witness, and in Making

Rulings Highly Prejudicial to Defendants.

Plaintiffs took the deposition of Henri E. Oud-

shoorn, as a witness, in the United States Court-

house, Foley Square, New York, on March 16, 1959,

pursuant to a subpoena that they had previously

served upon him. At that time, Oudshoorn was em-

ployed as a dispatcher for Swissair, a Swiss airline,

at Idlewild Airport, New York. Although he was the

KLM radio operator on September 5, 1954, he had

not been employed by or connected with KLM in any

way since July 1958 (JA 274a-275a).

Although he was plaintiffs’ witness as to mumerous

matters upon which there was no contradictory testi-

inouy, plaintiffs* counsel, who introduced parts of his

deposition into evidence, repeatedly asked the jury

to disbelieve Oudshoorn’s testimony on practically

every important item on which he had testified (JA

978a-979a, S80a-581a, 59Ta, 638a-034a ).

- Over defendant's objection, a statement made by

Oudshoorn to an Irish government inspector on the

afternoon of September 5, 1954, at Shannon Airport,

Was received in evidence during the reading of his

deposition GEA S13a-315a). The statement referred

to reads as follows (JA 316a-317a) :

“Q. This may sound a stupid .question, but I

want to ask it in order to clear up a point here

that would be in other evidence. Did you at any

time use 121.52 AL After this happened ?

Q. At any time. A. No. sir. We were tuned

at frequency of 118.7, the tower frequeney. and

I honestly must; say [To did uot) think when it

happened to take the microphone and tell people

there was something wrong on the plane. I

eould tell you that would never happen. You

first think of your skin, and then of the miiere-

phone, That was my feeling, because it) hap-

pened so fast.” |

The foregoing statement, made some twelve hours

after the accident had no probative value other than

to stir up passion, bias and prejudice on the part of

the jury and that is exactly the way plaintiffs’ counsel

used it. He used the statement in summation as fol-

lows (JA 580a):

‘He thought of his skin, and the reason he was

placed in that dilemma of choosing his own skin

or Tuller’s skin or the other passengers’ skin

was because he had been thrown out of his seat

by the force of that shudder, * * *"

Once plaintiffs introdueed into evidence Oud-

shoorn’s deposition they made him their own witness.

Thereafter they had no right to impeach and dis-

credit him nor any right to attack his credibility by

asking the jurv to disbelieve his uncontradicted state-

18

nents. Fed. R. Civ. P. 26 (f); Wigmore on Evi-

dence, Third Edition, §¢912-913.

In commenting upon the Oudshoorn statement, the

Court of Appeals said (App. 45-46): **The challenged

statement must be viewed as an important piece of

substantive evidence on the issue of wilful miscon-

duct."". The court cited no authority supporting such

a holding—-undoubtedly due to the fact that. the

authorities are to the contrary. As is pointed out in

Wigmore on Evidence, Third Edition, $1018:

“It is universally maintained by the Courts

that Prior Self-Contradictions are not to be

treated as having any substantive or independent

testimonial value.” (Emphasis Wigmore’s. )

Similarly, in Soythern Ry. v. Gray, 241 U.S. 333

(1916), Mr. Justice Reynolds, in speaking for a unani-

mous Supreme Court, said (p. 337):

“In an effort to discredit the passenger engi-

neer, only witness to sonie circumstances, he wes

asked on eross-examination concerning prior con-

tradictory statements; but the exclusion of all or

any part of his evidence would not change the

result. Of course the contradictory statements

can have no legal tendency to establish the trath

of their subject-matter, [eiting eases)” (Empha-

six supplied. )

The Court of Appeals, after conceding that the

statement did ‘not meet the standards of res gestae,

in relation to the accident” (App. 46), cited some

totally unrelated decisions and concluded with the

following ruling (App. 50):

“We hold that the statement made by Oud-

19

shorn, the KLM radio operator, as part of. the

authorized inquiry into the causes of the erash

and relating to lis duties and aets within the

scope of his employment was properly admitted

t

in evidence.’ i

However, the statement had nothing to do with the

cause of the erash. The record is clear that the

statement was offered GPA 313a) and received by the

trial judge (PA 315a) with the plain understanding

that it was contradictory of Oudshoorn’s deposition

testimony as to why he had not sent an emergeney

ge As Mr. Jiistiee Cardozo stated in Shepard

. United States, 290 US. 96, 103° (1983). eA trial

bare unfair if testimony thus aecepted HAM

used In an appellate court as though admitted for a

different purpose, unavewed and unsuspected."

The Court of Appeals has interpreted a federal

treaty in such a manner as to render the treaty nuga-

tory and void.

The opinion of the Court of Appeals notes that the

phrase “wilful misconduct’? occasioned considerable

discussion in the drafting of the Warsaw Convention

in 1929 and that the United States was not a partici-

pant in such diseussious (App. 36). The court

further points out that in the discussions at the con-

ferences which finally drafted the Warsaw Conven-

tion, the English delegate said as to the meaning of

the word ‘dol appearing in the French original,

“(We translate these words as ‘wilful misconduct’,

a well-understood expression in our law’? ( App. 36).

It additionally points out that when the Convention

4)

was before the United States Senate for considera-

tion in 1934 the word ‘dol’ was translated*® as “wil-

ful misconduct’ (footnote App. 36). Having thus

briefly reviewed the conference discussions whieh led

to the translation of ‘dol’? in this country as “wilful

misconduct’, the Court of Appeals totally ignored the

“well-understood expression’? in English law, and

equated wilful misconduet with ‘the negligence in

question’’; an interpretation expressly rejeeted) both

in England and this country.

In Lewis v. Great Western Railway Co., [1877] 3

Q.B.D. 195, Bramwell, L. J. stated as follows (p.

206) :

“es * * SWilful misconduet’ means misconduet. to

Which the will is a party, something opposed to

accident or negligence; the miseonduct. not the

conduet, must be wilful. * * *"

And in the same case, Cotton, L. J.. stated (p. 213):

“** * Now, I do not think there ean be any doubt

ct all that wilful miseonduet is something entirely

different) from negligence. and far bevond it,

whether the negligence be culpable, or gross, or

howsoever denominated. * * *"

In Graham vy. Belfast and Northern Counties Rail-

way Co, [1901] 2 LR. 13, defined this well-understood

expression as follows (p. 19):

“CWo)ilful miseonduet in sueh a special eoudi-

tion means misconduet to which the will is a party

* The French text. as proclaimed. is) the official text. The

original translation given by the Department of State for ‘‘dol"’

Was “deception”. Builetin of Treaty Information. No. 7. Supple-

ment dated October 12. 1929. In the Trish translation ‘del is

transiated as malice’. Air Navigation and Transport Act. 1936.

First Schedule. Artiele 25.

=

as contradistinguished from: accident. and. is far

beyond. any negligence, even £ross or culpable

negligence, * * *"

More recently. in Horabin v. British Orerseas Alr-

ways Corporation, [1952] 2 AER. 1016. this well-

understood expression in English law has again been

distinguished from necligence inva cease Involving the

Warsaw Convention, as follows (p. 1019):

vee * Wilful misconduct, to put it most shortly,

as it has often been put in the past. is musconduet

to whieh the will is a party. and it is something

Whieh is wholly ditferent in kind from mere neeli-

Fence or earelessness, however gross that negli-

Fence or carelessness may be * * #7

The incompatibility between the well-understood ex-

pression, wilful misconduct. and neghgenee is not

limited to English law. but is recognized in this eoun-

try as well, as the following illustrative cases clearly

indicate:

Kelly v. Malott, W35 Fed. 74. 76 (7th Cir, 1905):

oe * * Negligence and willfulness are as UMIMNINX-

able as oii and water. ‘Willful negligence’ is as

self-contradictory as “euulty inmocence..

Baltimore d& O. BR. Co. ¥. Felgenhaucr, WS 2d

12, 16 (sth Cir. 1948):

ees * And negligenee and wilful Iisconduet are

hot svuonvinous, * * **

Vew York, New Haven and Hartford BR. Co. y.

Gray, 240 F.2d AGO, AG4 (2d Cir, 1957):

“* * * Negligence, whether or not “gross.” but for

Which the aceident would not have occurred, will

not serve as a defense to such a poliey. Only

‘wilful misconduct,’ measuring up to ‘knavery’ or

‘design,’ will suffiee; and neither the evidence nor

the judge’s findings of faet show such conduct.

True, the judge, in the last paragraph of his

opinion, referred to the gross negligenee as if. it

constituted wilful misconduct. There we think

he erred. * * *’’

From the foregoing it is abundantly clear that the

Court of Appeals erroneously interpreted the expres-

sion ‘wilful misconduct”? as it appears in Article 25 of

the Warsaw Convention, when it stated that ‘the

negligence in question contributed proximately to

Tuller’s death’ (App. 43). If this interpretation of

Article 25 is accepted, one of the basic purposes of the

Convention, the establishment of uniform rules with

respect to the liabiltty of air carriers, will become

wholly illusory. The right to limit liability, unless the

damage is caused by the wilful miseonduet—not the

negligence—of the carrier is a right expressly con-

ferred by the international treaty. This Court has

many times set its face against treaty interpretations

that unduly restrict rights a treaty is adopted to pro-

tect, Kolovrat v. Oregon, 366 U.S. 187, 193 (1961)

“As was said by Mr. Justice Story in The Amiable

Isadella, 6 Wheat. 1, 72, 19 U.S. 1, 32-33 (1821):

ws * * (TJhis court is bound to give effect to the

stipulations of the treaty, in the manner and to

the extent which the parties have declared, and

not otherwise. We are not at liberty to dispense

With any of the conditions or requirements of the

treaty, or to take away any qualification or in-

tegral part of any stipulation, upon any notion

of equity or general convenience, or substantial

joie, * * ="

us

The Court of Appeals has decided a question in-

volving important rights asserted in reliance upon

federal treaty obligations which has not been, but

should be, settled by this Court.

The Warsaw Convention clearly declares as one

of its hasie purposes*® “the advantage of regulating in

a uniform manner the conditions of international

transportation by air in respect of * * * the liability

of the carrier’. Article 17 of the Convention imposes

an absolute Hability apon the carrier in the event of

the death or wounding of a passenger, regardless of

fault, “if the accident whieh caused the damage so

sustained took place on board the aireraft or in the

course of any of the operations of embarking or dis-

embarking.” This liability is exeluded by Article

20(1) if the carrier proves that it has ‘ttaken all ne.

cessary measures to avold the damage or that it was

Impossible’? for it to take sueh measures. Hlowever,

Article 25(1) provides that the carrier shall not be

entitled to avail itself ‘tof the provisions of this con-

vention which exclude or limit’? its liability. if the

damage is caused by its ‘twilful misconduct or by

such default on its part as ‘tin accordance with the

law of the court to whieh the case is submitted’? is

eqaivalent to wilful miseonduet. The exclusion refers

to Article 2001) and the limitation to Artiele 221)

Which provides that ‘tthe liability of the carrier for

each passenger shall be limited’* to $8,300,

The rights conferred by the Convention to exelude

or limit Hability would fall far short of the goal of

* Preamble. 4 Stat. SOT,

24

uniformity if the courts of each of the fifty states and

the District of Columbia are free to equate “the

negligence in question’’ with wilful miseonduet.

Although the Convention provides that the right

to limit Hability is lost if the damage is caused by

such default on the part of the carrier as, in aecord-

ance with the law of the court to which the cease. is

submitted, is considered to be equivalent) to) wilful

misconduet, this Court has the right, indeed the duty,

to exercise its power.of supervision to the end that

there is uniformity of interpretation of this inter-

national treaty by the courts of this nation, both state

and federal, Without such uniformity there is ue

“supreme law of the land’; rather there are fifty-one

possible divergert and hopelessly incompatible laws.

The objective of uniformity is not achieved where. as

here, the Court of Appeals pays mere lip service to

the definition of wilful misconduct contained in the

charge of the lower court to which the case was sub-

mitted, and then proceeds to equate wilful misconduct

With ‘the negligence in question’ (App. 43).

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

WiLtiam J. JUNKERMAN,

Counsel for Petitioncrs.

Dated September 20, 1961

James B. McQvui.an,

OF Counsel.

~

, *

Pital

APE fe

;

j

7 4

i

7

; in

7 ea

es ‘ae

ran

Pertinent Provisions of the

Warsaw Convention ~

Cuaprer TIT. Lrapinrry OF THE Carnien

Article 17

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if

the accident which eaused the damage so sustained

took place on board the wreraft or in the course of

any of the operations of embarking or diseinbarking.

Article 20

(1) The carrier shall not be liable if he proves that

he and his agents have taken all Heeessary measures

to avoid the damage or that it: was lupossible for

him or them to take such measures,

(2) In the transportation of goods and baggage the

carrier shall not be liable if he proves that the dam-

age Was occasioned by an error in piloting, in the

handling of the areraft. or in Navigation and that.

in all other respects, he and his agents have taken all

necessary measures to avoid the damage,

Article 22

(1) In the transportation of passengers the liability

of the carrier for each passenger shall he limited to the

sum of 125,000 franes. Where. in accordance with the

law of the court to whieh the case is submitted. dam-

"6

ages may be awarded in the form of periodical pay-

ments, the equivalent capital value of the said) pay-

ments shall not exceed 125,000 frances. Nevertheless,

by special contract, the carrier and the passenger may

agree to a higher limit of Hability.

(2) In the transportation of checked baggage and

of goods, the lability of the carrier shall be limited to

a sum of 250 franes per kilogram, unless the consiguor

has made, at the time when the package was handed

over to the carrier, a special declaration of the value

at delivery and has paid a supplementary sum if the

case so requires, In that case the carrier will be Hable

to pay a sum not exceeding the declared sum, unless

he proves that that sum is greater than the actual value

to the consignor at delivery.

(3) As regards objects of which the passenger takes

charge himself the liability. of the carrier shall be

limited to 5.000 francs per passenger,

(4) The sums mentioned above shall be deemed to

refer to the French frane consisting of 6514 milli-

grams of gold at the standard of fineness of nine

hundred thousandths. These sums may be converted

into anv national curreney in reund figures,

Article 25

(1) The carrier shali net be entitled to avail him-

self of the provisions of this convention which ex-

elude or limit his lability, if the damage is caused by

his wilful misconduet or by such default on his part

as, in accordance with the law of the court te which

the case is submitted, is considered to be equivalent

to wilful misconduct.

3

(2) Similarly the carrier shall not be entitled to

avail himself of the said provisions, if the damage is

‘aused under the same cireumstances by any agent of

the carrier acting within the scope of his employment,

Pertinent Provisions of the

Chicago Convention

PART’I. AIR KAVIGATION

CHAPTER I

GENERAL PRINCIPLES AND APPLICATION OF

THE CONVENTION

Article 7 .

The contracting States recognize that every State

has complete and exclusive sovereignty over the air-

space above its territory,

Article 2

For the purposes of this Convention the territory

of a State shall be deemed to be the land areas and

territorial waters adjacent thereto under the sover-

elenty, suzerainty, protection or mandate of sueh

State.

A

CHAPTER IT

Rrhicgar Over Terrirory of CONTRACTING STATES

* * * *

Article 71

Subject to the provisions of this Convention. the

laws and regulations of a contracting State relating

to the admission to or departure from its territory of

areraft engaged in international air navigation, or to

the operation and navigation of such aireraft while

Within its territory, shall be applied to the aircraft

of all contracting States without distinction as. to

nationality, and shall be complied with by such air-

craft upon entering or departing from or whiie within

the territory of that State.

Federal Rules of Civil Procedure

Rule 26. Depositious Pending Action,

* * * *

(dl) Use of Depositions. At the trial or upon the

hearing of a motion or an Interlocutory proceeding,

any partoor all of a deposition, se far as admissible

wnider the rules of evidence, may be used against any

party whe was present or represented at the taking of

the deposition or who had due notice thereof, in ac-

cordanee with any one of the following provisions :

(1) Any deposition may be used by any party

for the purpose of contradicting or impeaching

the testimony of deponent as a witness.

(2) The deposition of a party or of any one

=

Who at the time of taking the deposition was an

officer, director, or managing agent of a public

or private corporation, partnershipsor association

Which is a party may be used by an adverse party

for any purpose,

* * * *

(f) Effect of Taking or Using Depositions. A

party shall not be deemed to make a person his own

Withess for any purpose by taking his deposition. The

Introduction in evidence of the deposition or any part

thereof for any purpose other than that of contradict-

ing or impeaching the deponent makes the deponent

the witness of the party Introducing the deposition,

but this shall not apply to the nse by an adverse party

of a deposition as described: in paragraph (2) of sub-

division (da) of this rule. At the trial or hearing any

party may rebut any relevant evidence coutained in a

deposition whether introduced by himoor by any other

party.

* * * *

Rule 51. Tnustruetions to Jurv: Objection. At the

close of the evidence or at such earlier time during the

trial as the court reasonably direets, any party may

file written requests that the court instruct the jury on

the law as set forth in the requests. The court shall

Inform counsel of its proposed getion Upon the requests

prior to their arguments to the Jury, but the court shall

instruct the jury after the arguments are completed,

No party may assign as error the giving or the failure

to give an instruction unless he objects thereto before

the jury retires to consider its verdict. stating: «is-

tinetly the matter to which he objects and the grounds

of his objection. Opportunity shall be given to make

the objection out of the hearing of the Jury.

30

Irish Air Navigation (Operations)

Order, 1953

PART V

AIRCRAFT INSTRUMENTS, EQUIPMENT AND SAFETY

DEVICES.

o3,***

(6) The operator of the aircraft shall take steps

to the satisfaction of the Minister to ensure—

* * * *

(iii) that, if a Jandplane is to be flown over water

hevend thirty minutes flying distance from the

nearest shore, the passengers are shown before

the takeoff, or before reaching thirty minutes

flying distance from the nearest shore, the

position of the life belts, or equivalents, and

the method of their operation ;

* * * *

Opinion of Court of Appeals

CNITED STATES COURT OF* APPEALS

For tHE District oF CoLUMBIA CIRCUIT

'No. 159716

KONINKLIJKE LUCHTVAART MAATSCH APPL N.V. KLM

Roya DutcH Atixes HoLianp, et al.,

Appellants,

e.

GERTRUDE OweN Tuten, individually aud as Exeeu-

trix under the will of William Gordon Tuller,

deceased, et al...

Appellees.

APPEAL FROM THE UNITED States Districr Courr

For THE District or CoLUuMBIA

r

Decided June 23, 1961

Mr. William J. Junkerman for appellants.

Mr. Mardaugh Stuart Madden for appellees.

Before: Mr. Justice Reep, retired,* and Wiper

K. Minter. Chief Judge. and Brrcer, Circuit Judge.

Beurcer, Cireait Judge: This is an appeal from a

$350,000 judgment for the appellees in an action for

* Sitting by designation pursuant to 28 UIS.C. § 294 (a),

2.

-~

te

wrongful death. The decedent, Wiliam Gordon Tul-

ler, Was a passenger ona flight of NKoninkijke Lueht-

Vaart Maatschappij N.V. ELM Royal Duteh Airlines

Holland, (KLM), from Amsterdam to New York

Which crashed approximately one minute after take-

off from its intermediate stop at Shannon, Treland.

The plane crashed in the tidewaters of the Shannon

River some T7000 feet from the end of the airport

runway. As the wheels of the plane left the ground,

the control tower radioed its precise take-off time but

the acknowledgment required to complete the take-

off procedure was not forthcoming from the plane.

Receiving no response, the tower made repeated at-

tempts to make radio contact, without success, SuA-

BENA (Societe Anonyme Belge d’Exploitation De

La Navigation Aeriennc), KLM‘s agent and fight

representative at Shannon, had a radio capable of

monitoring such messages. On this occasion the moni-

tor was turned off immediately after the tower sent

its part of the take-off message without awaiting the

plane's response. As a consequence SABENA offi-

ais were not aware for some time of the failure ‘of

the KLM flight to answer, When the tower eventually

notified SABENA of the loss of radio contact, S.A-

BENA did not advise Aer Lingus, NLM‘s operational

representative, although it was SABENA‘s duty un-

der its contract to inform Aer Lingus of probable

Interruptions of service or retarded progress of the

flight ‘tas soon as possible.” In the XILM plane three

‘adio microphones were available to the flight crew,

the pilot, co-pilot and radio officer, and each micro-

phone was tuned to the tower frequency. Notwith-

standing this, no distress message was transmitted

either when the plane began to descend or after the

crash. When the plane ‘shuddered’* in a stall the

radio officer primarily charged with radio COMMEUML-

cations was thrown from his seat because he had

failed to fasten his seat belt as required by operating

regulations,

After the crash in shallow water, the erew evacu-

ated most of the passengers to two rubber dinghies,

Which were moved along the side of the plane by

means of ropes fastened to the fuselage. Tuller and

another passenger made their exe ape through a rear

window and stood on the tail of the airplane without

life preservers. When their shouts were heard by

the members of the erew in the second dinghy. the

crew attempted to maneuver the dingliv around the

Wing. Finding the tow line too short. the Vecast off the

line and attempted to paddle the dinghy to the tail,

but their efforts were unsuccessful due te tide and

wind and the inadequate size of the paddles. Addi-

tional ropes were available in the eorkpit but were

not used. The ship's officers made no effort to de-

termine the condition of the passengers on the tail of

the plane or to ascertain whether the Vo ohad life vests.

For over four hours Tuller and his COMMON ree

mained on the tail in a rising tide. Near dawn. in-

formation of the erash and its location finally reached

the tower, and a launch was dis spatcehed to the erash

scene. Just as the launch approached. with the water

by then chest high, Tuller lost his footing and slipped

Into the water; his body was later recovered. His

companion was rescued,

A booklet inserted 1m the back of each seat of the

plane stated that life vests could be found in one of

three locations in KLM planes. but at no time Was the

matter of life vests brought to the attention of the

passengers nor had they been told the specitie location

of the vests in this airplane or how they should be

fastened or inflated.

The jury owas instructed that under the Warsaw

Convention, Whieh the court ruled governed the lia-

bility of the airlines, the damages were to be Timited

to S300 unless the defendants were @uilty of “wilful

tisconduet.” In whieh case the s8500) hint did not

control! ‘Phe jury returned a verdiet for the plaimtitf

In the aniount of F000,

The appeal presents these issties :

(1) Was there suffierent evidenee of ‘twilfurl miis-

eonduet” te go to the jury?

(2) Was there error in the reception in evidence of

(ad oan trish order pertaining te instruetion on

use and jecation of life: vests,

(bh) pages of a AIM manual relatiag to diteh-

Ing procedures,

(¢) the contract between KLM and SABENA,

(al) a statement made by the radio operator at

a hearing before Trish authorities some

twelve hours after the erash?

(3) Was there reversible error in the failure of

the trial judge, absent request or objection. to clarify

The Warsaw Convention provides :

"CL: The carrier shalt net be entitled te avail liimself of the

provisions of this convention witteh exciude or hinit) his la:

bility. if the damage is cated by his wilful misconduct or by

such default on his part as. in aecerdanee with the law of the

court to Whiel the case is sabiitted. is considered to be

equivalent to wilful misconduer "Warsaw Convention, Art.

25. 49 Stat. FOZ 154.

the impact of KEM. negheenee on SABENA‘. die

bility ?

(4) Was there suffielent eviddenee Te oS The

damage aware?

Bieids Mee of Woi/ ta! Misconduct

At the close of the ease appellants moved te disimas-

The complaint for all aniounts iy exenss Ob SN OO cnt

for a direeted verdiet in faver of appellee. for ssion

for want of evidence of wilful ldseondtietl Utreder thre:

Tertus of the Warsaw Convention. li copstderine

Whether the appellants were. as thes elastin. entitled. te.

the relref they seuedit by their tuetion We gre. af

course, obliged te take that view of the evideree past

favorable to appellees and give then: the benefit of ali

inferences whieh might reasonably be drawn from: the

evidence, (running \. Cools eo UM. Be, 94 1d).

Qua motion for a directed wii, " * *

ix Well settled that the evidenee tiaast be eolst ried

Inost faverably te the plaintiff: te this ened be is

entitled te the full effeer of every lewitiniate iy

ference therefrom. Tf Won the evidemen. se eon

sidered. reasonable men might differ. the ease

should goote the jury: if en the other hand. ne

reasonable ian could revel a overdiet in faver of

the plaimtiff. the qetion should be eranted.

Jackson \. Capita! Trausit Co... 69 App die ‘a a

5, 3 Fl AM, ST (PR eet. dd Te

(LS. Onb 6 19395, quoted in Neadall vy. Chore Prop

ertics, Luc 98 US App Ihe. 37s, 884. 2G Bet

605. O79 Ws 61996),

*o,*

ool

The jury was instructed that ‘twilful misconduct is

the intentional performance of an act with knowledge

that the 20.0. aet will probably result) ino injury or

damage, or... In some manner as to imply reekless

disregard of the consequences of its performance: and

likewise, it also means . 2. failure to aet’’ im such

circumstances, This was substantially the charge ap-

proved by this court in chaweertcan Atrlines, Tne. v.

Uden, ST USAppne. 307, 186 F.2d 520 (1949),

where we also suggested that wilful miseonduet means

‘a deliberate purpose not te discharge some duty

hecessary to safety.” 7doat Sil, 1s6 Bid at 535.

The phrase “twilftil misconduct’? occasioned comsid-

erable discussion in the dratting of the Warsaw Con-

vention in W929. Liability. was limited to 125,000

French franes (then approximately §12.500—and now

approximately F300) for i single passenger unless

Article 25 of the Convention applied. See note 1,

supra. The United States was nota participant but

In the discussions relating to the meaning of the

French word ‘dol’ used in the text of Article 25 the

English delegate said ‘tL wish it to be noted on the

record that as a result of the explanations we trans-

late these words as ‘wilful misconduct.” a well-under-

>

stood expression in our law."

“We have in our eountry the expression “wilftl miiseconcditet

ioeovers not only acts accomplished with deliberation. but alse

WeoTS OT CUrebessness. Winner t regard ot The eonsecuences. " Proces-

Verbausx PE Conferenee Pnternatvonaie de Drom Prive Nerien, 4-12

Octobre D290. Varsovie. po 40-42. published by the Ministry of

borcstoa Akarrs of Potand. 000 The declaration of adherenee to

the Convention as advise by the Senate was accompanied by an

iuviish transiation whieh used the words ‘owilftl maseenditet te

trausiate “doh EM Stat Sea CT9sd This was the Enelish

translation before the Serate for consileration. 7S Cong. Ree

Those ogy

The alleged wilftul miisconduer of the appediants an

this case resolves itself inte four elements: ob) failure

fo properly dustruct passengers of the loeatien of life

Vests and dn their use: (2) failire te broadeast an

emergeney nessage; Co) fadlire te take steps te pre

Vide for the safety of Tuller atter his peril wes

known: (4) failare of SABENA te be aware of the

loss of radio commtunecation with the plane ated te

IITate protipt searel anid resene operations,

(1) “The evidence showed that Taller was alive within

seconds before the resene lamnel reached the airplane,

but that he lost his footing. fell inte the water. ane

Was dost. Since the parties stipulated that Tuller was

hot injured in the erash. the Jury could: reasonably

have inferred that if Tuller dad heen wearing a lite

vest his life could have been saved. Significantly. the

erew mentbers, who knew tite location of life vests.

realized the need and promptly put them on,

There was testimony that ue arnoiteements or in

structions concerning life vests were ide te pas-

sengers before take-olfs or during tlieht. ane the Pit

senger Who stood with Tuller on the teil testified that

he did) not) krew Where the life: vests were located,

The descriptive booklets Inserted di the baek oof eaeely

seat stated that the life vests could be found in one

of three places. but at ne time were the passengers

Informed where they could be found in this pactientar

areraft. Regulations of tie Trish Government de tet

require life vest dastructions unless a flight is more

than SO tumintes travel from: land. Phis flight was

always within SO naiuites flight trom dane provided ji

miuintained nortial flying speed— and remained air

howrne, Whiel of course ait did bet.

lh view of the gravity of the hart: whieh: would fol

Be

low an emergency landing on water on a night fligh:

Which contemplated landings and take-offs at at least

two airports near the sea, the jury could reasonably

find that the failure of WLM to establish and execute

procedures to instruct passengers as to the location

and use of life vests was a conseious and wilful otais-

sion to perform a positive duty and coustituted reck-

less disregard of the consequences, We are not bound

by the limits of the Irish Government's regulations as

to when life vest Instruetious should be given to fulfill

the duty of care owed to passengers. Cf. Hlorobin vy.

British Airways Corp. (1952) 2 ALELR. 1016, 1019

(Q.B.).

(2) A distress message could have heen sent merely

by uttering the universal distress signal in the words

“King Yoke Mayday" or even **Mavday."" | Immedi-

ately before take-off the radio officer was at his desk

In the plane with a microphone before him tuned to

the tower frequency. But during the descent he was

thrown to the floor beeause he had failed to take his

seat and fasten his seat belt. The KLM operations

manual required all personnel to have a ‘tcouscious

anticipation prior to take off of possible failure.” and

to send a distress message as soon as an emergeney

% Regulations of the Trish Government alse

required publie transport aireraft to notify appro-

priate authorities “by the quickest means available’

of any aceident involving the aireraft. The plane was

equipped with radio microphones at three positions ;

the pilot's, the co-pilot’s and the radio operator's.

AVvOSe,

3 The KLM operating manual, pave 36. states:

“Surface stations and ships should be tiformed of the exist-

eee OF an emergeney as soon as it arises. This should be

done even ii odtoas met certain thet the airplane will have to be

ditehed. Tt ois easy enotgh to eaneel the call after the emer:

ore*nneeN Is GOVeET., is

i

Here there was a brief period. even if OMT Sereneds,

as to Whieh a jury could reasonably tind that the

behavior of the plane gave noties of a possthle eraséi

and time suffieient to utter the distress signal. Pur-

thermore, there was ne a temipt Too send a message.

after the crash: there was evidence that the elect rien!

SVateni Was so organized that the plane's radio world

operate from independent power after the main igni-

Hon switch was thrown te aveid eNXplosion and tire.

lic addition there was a portable emergeney radio

operable by hand erauk in the rear of the plane.

Had a message been sent the control tower by any

of the available means. the authorities would have beer

Immediately aware of the erash and resene equipment

coud have been dispatehed promptly rather than some

four hours later, Accordingly, the Jury Was warranted

In concluding that KIM ‘s agents. in failing te senda

distress message, conunitted wilful Hilseconeliet,

(oO) After the first dinghy was tilled with Putsseq-

gers, the captain iustrueted the erewneen in clare te

take if to shore, The captain and radio offieer mare a

final cheek for passengers in the eahin and then

hoarded the secore dinghy. Shouts were heard from

the passengers on the tail and the erewmen atteniptes

foomaneuver the dinghy around the wine with the

ropes attached to the fuselaewe. Finding the a

short, and fearing to take the dinghy over the sharp

edge of the wing. they released. the rope and tried te

paddle the dinghy. But the round rubber vesse|

Would not respond te their smi! paddles ane instead

drifted with the tide toward the shore. ‘The ChOWIEN

had no experience in the uss of the dinghies except in

a large swimming pool,

40

The crew owas aware that it) was possible te

maneuver the dinghy by ropes attached to the fuselage

because they had) previously maneuvered it to. the

main door in’ that) fashion. Moreover, additional

lengths of rope sufficient to reach the tail were avail-

able in the cockpit. Various alternatives were plainly

available: one of the erew could have swum to the

tail of the plane with the rope and pulled the dinghy

to the men or vice versa, as had been done with respect

to moving the dinghy in earlier maneuvering. No

effort was made to put a erew member on top of the

cabin by use of ropes thrown, or carried by a swimmer,

to the opposite wing engines. Had this been done the

tail passengers might well have been guided over the

top of the cabin to the dinghy. The jury could reasou-

ably find that under these cirenmstances the failure

to take available steps to provide for Tuller's safety

Was a conscious omission made with reckless disregard

of the consequences when it was known he was in a

position of peril, There is no suggestion that the de-

parture of the second dinghy without making some

effort to provide for Tuller’s safety was necessary to

protect the lives of the occupants of that dinghy.

(4) As agent for KLM. SABENA was charged by

contract? with cheeking the progress of the flight and

TSABENS contracted to render... services to the Carrier's

KLM's| flight operating within the area of responsibility lat

Shannon] as described in’ Paragraph 30 of this Annex thereby

maintaining close tiaison with the operational representative | Ner

Lingus} designated by the Carrier so as to coordinate his require

ments.

* ? > *

Maintain contact with all flights within bis area of respousi-

bility Metin advanced or retarded progress as compared with

Hizht plan and inform the operational representative iNer Lingus!

designated by the Carrier"

* * ° ~

“Tn the event oof an emergeney. take action Necessary tor the

1]

notifying Aer Lingus, the operations! representative

Of KLM. in the ease of retarded procress of the thelr,

However, as ao result of the ~Witelmygg off of the

SABENA monitor radio without waiting for comale

Hon of the take-off message and before it was kiows

Whether the airplane had failed te respond tovet tier

With the absence of SABENA eliplovers trom tl.

office at subsequent periods, Aer Lingus was net oe

fied of the loss of commuiieation for several diowurs,

nor was the NLM station manager so notitied.>

While the control tower personnel had broad cuties

With respect to contaet with the plane anid didl in taet

remain aware oof the plane's failure te respon,

SABENA as KMS agent had -‘routreet duties as

hoted in the margin, But SABENA was SCOTMINLLLY

satisfied with the loss of contact with the KIM plirtie

at the critical moments of take-off. landings and take-

offs being the most hazardous of their operations. Ti

View of this it is less surprising that the tower per.

sonnel did not pursue the matter averessively, ‘The

Vital importance of commiiiieation between Pitot ane

control tower is suggested by the severe wovernmental

savetions for failure to perform: required aets of come

safety of the flight being euided by the instraetions in the pele.

Vant Operations Manuatl. 2

* * * s

“Report the complete facts of any aneilent of a Mieht Oberation.

nature Whieh eattses delay oroaterrantion of a fiehit te the ae

Tons departivent of the Carrier

z * = . *

“Ensure that probable or known interruptions to scheditbes fe:

Nicht operationai reasons . 0.0. are eiven as seon as possible te the

operational representatives despenated by the Carrier

> Tiere was evidence that it was the established prac bee that at

radio Wessave Was Hot rewarded as complete ait ache edie Ih.

the recipient. ‘The tower corti? to Peerttest gehrowbe depen t oo

Its tkeeotl pessace

a

muwMeation The seareh and reseue organization of

the Shannon airport did not have its own planes. As

KLM's operational representative, Aer Lingus was

the local facility capable of instituting a search. In

recognition of this, the contract between KILM and

SABENA. as we have noted, required SABENA to

advise Aer Lingus Mnmediately of any facts related

to an interruption of service, and to keep Aer Lingus

informed of the movements of the aircraft. Some

forty-cight minutes after take-off, a SABENA agent

learned from the control tower that radio contact

With the plane had ceased shortly after take-off,

Nevertheless, Aer Lingus was not notified of this fact

for another hour and thirty minutes, Finally aware

of Joss of contact and the plane's failure to report a

safe and completed take-off SABENA as KLM'‘s

representative had a duty to “take action hneessary for

the safety of the flight’’ and press every available

Inquiry and to initiate through Aer Lingus emergency

surtace craft investigation in the area of the known

take-off pattern.

Mere no real effort was made to check on the ‘miss-

Ing’ plane until nearly two bours after take-off when

the tower sighted flares in the take-off pattern of the -

KEM plane. Even then no surface craft were dis-

patched. Later another plane in routine flight sighted

the erashed ship in the growing light of dawn and

finally surface craft: were dispatehed. SABENA‘

failure to inform Aer Lingus of the loss of COMMU

cation with the plane it was responsible for, plainly

delayed emergeney search and resene action Which,

had it been initiated in these eireumstanees even as

tiveh as five minutes carlier, could have prevented

Tuiler’s death. The defaults of SABENA as K ILM‘

ground agent were couseious omissions of perfornianee

{)

Of positive duties relatine directly te the safety of

PMISSCH@erS,

We hold that as to each of the categories of allege!

Wilf) misconduct of KEM there Was sulietent evi-

dence from whieh a Jury eould rewsonably find thet

KLM was enilty of wilful Iscomduet as that terin his

heen Interpreted DS this court under the Warsaw Con-

Vention; we hold also that) tiere Was suffelent evi-

dence from which a Jury could reasonably find that

SABENA was guilty of wilful Insconduet as that

term has been interpreted by this court under the

Warsaw Convention. There js also evidenee from

Which a jury could reasonably tind that as to eneh

category of wilful Miusconduet the negligence in qlles-

Hom coutributed proximately to Tuller’s death,

Wleged Errors in the Reception of Bride nce

(1) fetsh order us to hifi rests. Appellants’ objec.

fons go solely to the Iterpretation put upon this

order by appellees’ counsel in argument te the jury,

The applicability of the order was a fair subjeet of

comment Hb argument and there is ye substantial basis

for disturbing the verdiet on this round,

(2) ALM manual, Pages of a KIM bnathitiaal relat-

Ing to the duties of the radio operator when there is a

“ditehing of the airplane Were Getnitted over oly joe.

tion, The ground of the objection was that the tania]

applied only te planned aid controlled CHET HEN

landing on water amd not te an InVeluntary erash

landing, As a result of questions by the appellees’

eounsel, anid questions hy the trial Jinlee after im

pedehment of the witness by a Prior deposition. a

suMeiont foundation was laid foe the adinission of this

$4

manual in evidence. The radio operator finally ad-

mitted that if a erash occurred it was the duty of the

crew to carry out as mmuy as pessible of the plamned

ditching procedures,

(3) ALM-SABENA contract. [tis urged as error

that the contract between NLM and SABENA was

not construed by the trial court and was the subject of

argument in appellees’ saimation. Appellants did

hot request specific instructions on the meaning of the

contract and made no objection after the charge; they

are precluded from raising this objection now. FrEp.

KR. (wv. 7. ot.

(4) Radio operator's statement. Appellees took the

deposition of the NLM radio operator, Oudshorn,

after his employment with NLM was terminated. Tn

the deposition, which was received as part of the ap-

pellees’ case in chief. the radio operator stated that

he did not send a distress message before the plane

crashed because there was not sufficient time to do se.

He was then asked if he had made a statement to the

Inspector of Accidents at the Shannon airport some

hours after the erash. The witness admitted making

statements at the hearing in question, which he said

was attended by ‘tone of our chief flight engineers of

KLM... one of the people of the Duteh CAA’ and

others. At this point appellees offered and the court

received over objection a transcript of the radio op-

erator’s statement at the hearing before the Tispector

of Necidents. Appellants objected to the proffered

transeript of Oudshern’s statement on the ground that

“itis not partof the res gestae,” thus indicating thet

the statement was challenged as hearsay. After argu-

ment the Distriet Court after first indicating that he

45

regarded it ats peau of the res vestine, then reconsidered

aid ruled that

The statement refers to the accident. otherwise

there would be ue purpose in having the statement

made. Tt was made oo. 0 at Shatmen on the same

(488) day of the accident and in response te the

particnlar question as te why he didua’t send the

Hiessaeve,

TL thank it is aeanissible and TP owill let it in.

The pertinent: part oof the statement made by

Oudshorn at that time was

We were tried at frequenes of TIS.7. the tower

frequeney, and TP honestly minst sav that TP did net

think when it happened. to take the imierophone

and tell people there was something wrong on the

plane. To eould tell vou that would never happen.

You first think ef your shin, and then of the

microphone, That was my feeling, because it hap-

pened so fast. ¢Rmiphasis added.)

The trial judge did not trv te limit the effeer of this

statement inany wav. Realistieatly it could net have

heen admitted merely for purpeses of impeachment iy

the caretuustanees shown here.® The eho dlenwed) <tate-

Appellants” contention that the arpe loos quaproperty ripeatehed

thetr owes Witness, Odttedsbiorny. is cconstese peter!

brief bey the atonement that

ith atgopeediatits cw

“The forecotmy statement was aethalis nota eoutracietion

Of OMidsteern s Cestimiorns thet the gectetemt bappenredd soe tiast

Tinat there Was net tine tes swotede the Preepibenbe des Inoorder te

seme out atbessave and that be did et think of dere soo The

Statement made seme D2 hours after the aeertent that at the

tine of am atrpiane crash ome thanks of mess ski before

thinking of a dterophonme. Was ne tere thin a qoerital reaetion

at the time it was wiven at bad te probatoce value other than

Toeostin tip passin. bias ane pregudiee om the partoof the jus

ul that isenaeths the way plas” conmpsed is dit’

46

ment must be viewed as an important piece of sub-

stantive evidence on the issue of wilful misconduct.

As such it disclosed an awareness of the existing risks

and had a direct bearing on whether there was reck-

less disregard of the dangers to which the plane and

Its passengers were exposed,

Appellants argue that the challenged statement does

not fall within any of the exceptions to the hearsay

rule, pointing out particularly that the hearing at

Which it was made occurred 8 to 10 hours after the

crash. We agree that the utterance was too remote in

point of time from the event to sustain its admission

as part of the res ¢oiae. However spontaneous in the

context of the hearing, it does not meet the standards

of res gestae, in relation to the accident.

Appellees contend that) Oudshorn's post-accident

statement is admissible because it was made while he

was an employee of KLM and was his explanation of

his performance of duties within the scope of his

employment. From this they urge that the utterance

ix lmputable to KLM. In answer to this appellants

contend that the radio operator was not a KLM em-

plovee when the deposition was taken or when the

testimony was read into evidence at trial, and that the

radio operator had no duty or authority to make

declarations binding on KLM at the hearing of the

Inspector of Accidents.

The radio operator was a KLM employee wher he

uttered the challenged statement. It is) true that

members of the flight crew of an airline are hired

primarily to work for the airline, not to speak for it.

3ut in this context, having in mind the publie nature

of the duties of a common carrier and the duties of

erew members toward common carrier passengers, it

Was as mnueh a part of the crew's duties to account to

4d,

public authority for the Hainer dn Whieh those duties

Were discharged as it would be te account or report to

the employer, Whether KLM acquiesced in the in-

quiny. or whether it had no choiee im the iatter is net

entirely clear from the recom): however the reeerd

discloses that a KLM representative was present at

the hearing and that Oudshorn's statements were re-

corded without objection,

Many writers on evidence? have urged that reject-

Ing carly post-aceident statements of an em plovee

While receiving the emplovee'’s considered statements

in the courtroom perhaps several vears after the event

ix to give preference to the weaker over the stronger

evidence. Had Oudshorn made substantially the same

utterance within the hearing of a passenger as he

emerged from the cabin of the plane we would per

mut the passenger to testify to what was said as part

of the res gestae; vet the passenger's testimony might

well come three or four vears after the event and. be

dependent Upon tis recollection of the words uttered,

That. surely, is not more reliable than Oudshorn's

statement, against his interest, uttered and recorded

some eight hours after the resene, ina formu! process

of reporting to the Trish Government concerning the

OFCUPPOLEE, |

Apparently with this in mind the proposed Model

Code of Evidence rule S08¢a) admits the cmplovee's

statement if the declaration coneeried matter within

the scope’ of the deelaraut’s employment. See alse

Slifka veo Johnson, Wi) Fed 467 (2d ey. eed.

denied, 332. CS. T58 (1947) 2 Martin vy. Savage Trach

Linc, 121 FL Supp. 447 CD.DLC. 19540. Oudshorn's

statement clearly concerned aiiatter within the scope

*Sce MeCon mien. Evipusen. 2 2thoat ober

4S

of the radio operator's cniployment, sinee his come

pliance with undisputed safety regulations was 1

question.§ Had he been at his assigned post with his

microphone at hand and his instruments tuned to the

tower frequency, as they were, he could have uttered

the **Mavday'' distress signal in a fraction of a sec

ond. His explanation of his failure te do this was

within the scope of his duties.

Since reliability is the basie test for the admission

of any hearsay statement, the interest of the one who

utters it and the one to be charged is always im-

portant. That this statement is adverse to the in-

terest of KLM is plain. The statement was also

adverse to Oudshorn’s personal iterests in that it

entailed the possible loss of his employment. impair-

ment of his future emploviment opportunities, pos-

sible civil liability for Tuller’s death, and even the

8 Oudshorn testified :

"Q. Did every member of the flight crew have a seat with a

seat belt? A. That’s right,

"Q. What is the purpose of seat belts?) A. Well, in ease of

an aceideui, or in sudden stop or acceleration, that you are

not thrown out of vour chair.

"Q. And vou ean continue your duties? A. That's right,

“QQ. Tf vou are not thrown out of your chair! A. That's

as.

“Q. Is there any regulation requiring that these seat belts

be fastened at any particular time? AL Yes, during take off

and landing they are supposed to be fastened.

"GQ. When vou say ‘during take off. how adel time does

that encompass during take off?) A. Well, that means from

When vou start off blocks qutil the Captan gives the comune

to switel off the sien * Fasten seat belts” ©

* x * oa

"Q Didk vou feer at the the vou felt this shudder. and

When vou Were threwn out of your seat, (4665 that the plane

Was come teerash? Did vou have that sensation. that you

Were eolne to erash A. T. persenaily, had that) sersation

when T felt this unusual shudder. and going down, that) this

Was acerash. My personal opinion was that it was that.

4!)

possibility of criminal sanetions. We think that such

a recorded statement meets any reasonable test of

reHability. The offielal nature of the inquiry which

elicited the statement, the independent) recording of

the statement, the source of the utterance, and the

interest of the utterer all combine to give the state-

ment the earmarks of reliability absent in Paliner v,

Hoffman, BIS US. 109 (1943). Sureive it cannot be

said. as to the employee who uttered it or the em |

plover who is charged with it, that its “*prinicry

utility is in litigating. 2.0.7 Tdsat D4. See Pelectis

Vv. TWA, US7 Be2d 12, 130 (2d Cin. cart. denied, O41

cS. Bat ( a7).

The Seeond Cireuit) considered the appleation of

the federal shop book rule, 28 ULS.C. » Tez «19s )

to a similar situation in Pelelis vi TWA, sepa,

There reports of an airline accident iivestigation eon-

ducted by the airline for its own purposes were held

admissible. Noting that the challenged material was

not favorable to the airline’s interests, that court gave

the interest factor signifieant weight in determining

“their earmarks of reliability’? and in distinguishing

Palmer Vv. Hoffman, supra, We need net reach the

question whether the challenged statement here is ad-

missible under the federal shop beok rile in ight of

our holding that it is admissible on other gromnds.

We emphasize that we are not here confronted: with

the problem of the admissibility of opinion evidence,

See New York Life lus. Co. Vv. Taylor, 19 US. App.

D.C, 66, 147 Fed 297 (1944): Washington Coca-Cola

Bottling Works, Luc vy. Tawney, 98 CS. Appee. Tod,

M33 Bd 353 01956). Am added distinguishing fae-

tor is that KEM had) fuil opportunity. to eross-ex-

wnihe Oudshorn when the deposition was taken for

the purposes of this case.

We are not unaware of the traditional argument;

Wich can be advanced that exelusion of post-aceulent

statements of this type may have value in that it

tends to encourage free and full disclosure of informa-

tion, See McCormick, Evimence 0 78, at) 160-61

(Wo4). Dut the problem is one of balancing eom-

peting considerations and oon balanee we think the

ends of justice are beiter served by receiving such

statements when found to be reliable.

We hold that the statement made by Oudshorn, the

KLM radio operator. as part of the authorized inquiry

Into the causes of the crash and relating to his duties

and acts within the seope of dus employment was

properly admitted in evidence,

Alleged Errors tia lustruetious

Appellants’ brief does uot assert any errors in the

trial court's dustructions to the jury. Plowever, it. is

contended that the trial judge preeluded exceptions

to the charge. and that error oecurred in the charge

With respect to the lability of SABENA. Appel-

lants’ supplemental memorandum sugeests that) the

trial court failed to dustruet correctly on the lability

of SABINA Gn that the jury was told that a finding

of wilful miseonduet by cither or both defendants

would bring them te the issue of proximate cause.

Atone pott did the court tustruet the jury that if the

wilful daiseonduet were committed solely by KIM.

the principal SABENA, the agent. could not be held

lable. © No ostel instruction was requested and ne

objeerion Was taker te the charge in this respect, Tt

shotld be noted that KEM and SABENA were rep-

resented by the same counsel, although obviously at

this point their iaterests imevitably diverged. Rule

oO) of the ich, ite ie, 7”. recites Thoget ipatice A

taken te errors di the elaree Php cottage Ten obser, qcnnegs

On appeal Some eourts have taken Live View oth

“the splat error’ rule ines et be utileced i eau

ippeals to obtain a review of jsteuetions e:cen or

refused, where the @round was moto raised ino the trial

court.” Bertrand vo Southern Pae. in. Va? FS

O69, 972 (Oth Cir, WGO). cert. denied, thd > WG;

(1957 5,

Of course, Hf the triad eourt im foet prevented the

Objection From: being made. ai ivirine ease for the

application of the tpl error’? rile world be pre

sented. We have examined the portions of the record

reed on by appellants to show that the District Judge

IN Somme Way inipeded or prevented the recording of

a timely objection. We are satistied that appellants

had full and uninhibited opportunity to objeet to the

charge concerning the liability of SABENA if thes

desired but failed to do oso. The triat of this enise

Was Jong and expensive and the contentions iunder-

seore the need) for stret commlianes with the rude

Which treats as waived that to whieh we timely objer

Then is tacde,

The claimed error in the seape of appellees aren.

Ment to the jury does not merit eormrent,

Dit inieuepe N

The jury returned a verdiet of Sa50.0000 for the

appellees, Phe evidenee on the damnee issue showed

aolife expeetanes of Solo vears. Thiller esrned a

salary of approxtmeteds S27.000 Gr SYOOO a vere

after taxes as viees president tn eharge of eneieerine

ato Melpar. a division of Woestinghouse Airbrake.?

Besides his widow, Tuller was survived by two «fil

dren then aged four and eight respectively: |

The award of $350,000 is attacked as so excessive

that it shonld have been set asides by the District

Court. We pointed out in Malett ve Brinsou, 97 ULS.,

Apple’. Te, 14. 229 Fed 2a. Sy (it), evel.

denied, 300 US. 10714 61956). ‘that the rule in the

Federal courts is that an appellate court may reverse,

if at all. for excessiveness of verdict only where the

verdict is so grossly excessive or monstrous as to dem-

onstrate clearly that the trial court chas abused its

discretion in permitting it to stand.’ See ctffelder

ve New York, Cod StL. B., 339 U.S. 96, 101 (1950).

On the whole record we cannot say that the aetion

of the District Judge who tried* the ease and) heard

the post-trial motions constitutes an abuse of dis-

eretion or that appellate action with respect to dani

ages is required,

Affirmed.

The appellees tendered: bet othe Duastrirer Court re pected pred.

Verve! evieleadice purport as tuo shea that Tattler s Dhieronnne wottied

Ierease over the fail span of fife expectamey. Steh eviderer was

revevant amd showutd have heen reeemed Ge Commor vo Urirted

“ates, 368 FS acs «2a Cir. Hot.