Nollenberger v. United Air Lines, Inc.

216 F. Supp. 734, 7 Fed. R. Serv. 2d 922, 1963 U.S. Dist. LEXIS 8059
CourtDistrict Court, S.D. California
DecidedApril 12, 1963
Docket62-1600 to 62-1602, 62-1606
StatusPublished
Cited by8 cases

This text of 216 F. Supp. 734 (Nollenberger v. United Air Lines, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nollenberger v. United Air Lines, Inc., 216 F. Supp. 734, 7 Fed. R. Serv. 2d 922, 1963 U.S. Dist. LEXIS 8059 (S.D. Cal. 1963).

Opinion

HALL, Chief Judge.

The within cases are wrongful death actions arising out of the same mid-air collision described in the Opinions dated November 14, 1962, and December 7, 1962, and found in United States v. United Air Lines, Inc., D.C., 216 F.Supp. 709, to which reference is made for more detail.

As will be seen from the above-mentioned Opinion of November 14, 1962, the Court consolidated the Nollenberger case with the Matlock, Theobald, Thompson, Klehfoth and Paris cases in the District of Nevada for joint trial to one jury on both the question of liability and damages. By the same Order, the Cross-claims of the United States against United Air Lines and the Cross-claims of United Air Lines against the United States were severed for trial from the claims of the individual plaintiffs against United Air Lines.

On December 5, 1962, the Court, after argument on motions of the plaintiffs, indicated that it would grant summary judgment, in the consolidated cases, against United Air Lines on the question of liability only, as is further seen from the above-mentioned Opinion of December 7, 1962.

Thereafter, and on December 10, 1962, counsel stipulated for a change of venue for the trial of the issue of damages, from the District of Nevada to the Southern District of California, Central Division, in the Nollenberger, Matlock, Theo-bald, Thompson, Pebles, Paris and Dar-mody eases. 1

In the Pebles and Darmody cases, pending against United Air Lines only, the parties stipulated to the amount of a judgment, reserving all rights on appeal.

The Court then proceeded to try the Paris, Nollenberger, Matlock, Theobald and Thompson cases in the Southern District of California to a single jury, in that order, receiving a verdict in each case before proceeding with the next case. 2

The matters now before the court are the motions of the plaintiffs in the Nol-lenberger, Thompson, Theobald and Mat-lock cases 3 for relief under the provi *737 sions of F.R.Civ.P., rule 49(b) 4 which was utilized for the purpose of submitting special interrogatories and a general verdict to the jury in each of those four cases.

There is also before the Court the Motion of defendant United Air Lines to strike the affidavit of Chapin which plaintiffs filed in support of their motions.

The plaintiffs (except Paris) originally filed a motion for new trial only, on the following grounds:

(1) Insufficiency of the evidence to justify the judgment;

(2) Inadequate damages contrary to the evidence; and

(3) Inconsistency of the general verdict with the special verdict.

Thereafter, at the conclusion of the trial of all five of the cases, the plaintiffs renewed their motion on the same grounds in the Nollenberger, Matlock, Theobald and Thompson cases, but moved, in the alternate, for one of three procedures:

(1) That the Court submit additional interrogatories to the jury;

(2) That the Court calculate the general damages from the answers to the special interrogatories and enter judgment for such sum; or

(3) That the Court grant a new trial.

By the express terms of Rule 49(b), F.R.Civ.P., where the special findings of fact in response to special interrogatories are consistent with each other but one or more is inconsistent with the general verdict, “the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial.”

The procedures authorized by the rule are not new. Examples of the use of such procedures before the promulgation of the Federal Rules of Civil Procedure in 1938, and while the Conformity Act was in effect, are found in: Prentice v. Zane’s Administrator (1850), 8 How. [49 U.S.] 470-483, 12 L.Ed. 1160; Graham v. Bayne (1855) 18 How. [59 U.S.] 60, 63, 15 L.Ed. 265; United States v. Pinover (D.C., 1880) 3 F. 305; Spokane & I. E. R. Co. v. Campbell (C.C.A.9, 1914) 217 F. 518, aff’d 241 U.S. 497, 36 S.Ct. 683, 60 L.Ed. 1125; United States v. McPhee (C.C.A.9, 1929) 31 F.2d 243.

There can be no question of the constitutionality of the rule or in following any one of the alternate procedures set out by it in view of Walker v. New Mexico & So. Pacific R. R. Co., (1897) 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837, which held that a statute of the then Territory of New Mexico containing similar provisions did not contravene the Seventh Amendment to the United States Constitution. The Court, inter alia, stated, at page 597, 17 S.Ct. at page 422: “It would certainly startle the profession to be told that such statutes contravene a constitutional requirement of the inviolability of jury trials.”

*738 As stated by the Court of Appeals of the Ninth Circuit in Pacific Greyhound Lines v. Zane et al. (1947) 160 F.2d 731-737, Rule 49, F.R.Civ.P., was “designed to encourage and facilitate the use of the special verdict, or, in the alternative, the general verdict accompanied by the jury’s answers to interrogatories as to issues of fact.”

In short, the rule is designed to take some of the mystery out of general verdicts where, in case after case, neither counsel for either side nor the Court have been' able to reconcile the verdict with the evidence. That was the purpose of the use of interrogatories in these cases'.

The first task of the Court is to determine whether or not the Findings of Fact in the answers, given by the jury to the special interrogatories, are consistent with each other and whether one or more, if consistent with each other, are inconsistent with the general verdict fixing the total sum of damages to the plaintiffs resulting from the death of the decedent. And in doing so, Gallick v. Baltimore & Ohio R. R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), “it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: ‘Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.’ Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798. We therefore must attempt to reconcile the jury’s findings, by exegesis if necessary, as in Arnold v. Panhandle & S. F. R. Co.,

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