Milliсent K. MATLAND, Executrix of the Estate of Carl G. Matland, Deceased, Appellant
v.
UNITED STATES of America, Defendant and Third-Party Plaintiff,
v.
UNITED AIRLINES AND TRANS WORLD AIRLINES, INC., Third-Party Defendant.
No. 13296.
United States Court of Appeals Third Circuit.
Argued December 5, 1960.
Decided January 10, 1961.
Ella Graubart, Pittsburgh, Pa., for appellant.
Herbert E. Morris, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Hubert I. Teitelbaum, U. S. Atty., Pittsburgh, Pa., Alan S. Rоsenthal, Attorney, Department of Justice, Washington, D. C., on the brief), for appellees.
Before BIGGS, Chief Judge, and GOODRICH and FORMAN, Circuit Judges.
GOODRICH, Circuit Judge.
This appeal has to do with the effect of a release in a Federal Tort Claims case. Two aircraft collided over the Grand Canyon in Arizona on June 30, 1956. One of the passengers who met his death in this collision was Carl G. Matland, 39 years old, a research physicist for Westinghouse Electric Corporation, married and the father of two small children. The Executrix settled the claim against the airlines for a consideration of $75,000 on behalf of the widow and the children. The release stated that for the consideration paid "I do hereby release and forever discharge [United Air Lines, Inc. and Trans World Air Lines, Inc. and their employees] from any and all actions, causes of аctions, claims and demands for, upon or by reason of any damage, loss or injury, which heretofore have been or which hereafter may be sustained by me in consequence of an accidеnt which occurred on or about June 30, 1956, Grand Canyon, Arizona * * *."
The plaintiff now seeks recovery against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b). Her claim is that the accident was caused by the nеgligence of employees of the United States at Salt Lake City and Los Angeles in giving directions and failing to give warning to the two airliners whose crash caused this tragedy. The claim is met by the defense that the release given by plaintiff discharged all causes of action arising out of this accident. That the common law rule was that the release of one tortfeasor released all others frоm claims arising out of the same transaction is too well settled to be doubted. It is stated without qualification in the Restatement of Torts1 and was reiterated by this Court in Dura Electric Lamp Co. v. Westinghouse Eleсtric Corp., 3 Cir., 1957,
To escape the consequences of the rule applied to this claim the plaintiff urges that the Federal Tort Claims Act creates a new federally created right and that, therefore, the common law rule as to the effect of the release need not apply. The analogy of claims under the F.E.L.A., 45 U.S.C.A. § 51 et seq., is made and strongly urged to apply to this case. Thе trouble with the argument is that it states the law incorrectly. There is some dispute among the authorities as to whether the effect of the Federal Tort Claims Act was to create a federal right or simply to waive the sovereign's immunity. In a Second Circuit opinion it was stated that "We think it created a new federal right." Fitzgerald v. Pan American World Airways, 2 Cir., 1956,
Having reached the conclusion that state law is to be applied, we are now faced with the issue of which state's law to apply. There is no unanimity of opinion among the federal courts on this question. The District of Columbia Circuit has held that the statute means what the language provides, namely, the place of the negligent act оr omission controls without regard to the place of injury. Eastern Air Lines v. Union Trust Co.,
We must now turn to the law of the states possibly to be looked to, namely, Arizona, California and Utah. We find that at the time of the accident these states all followed the cоmmon-law rule.8
As we examine the law of the several states, we do so bearing in mind plaintiff's present contention that there was no negligence on the part of the operators of the airрlanes so that the rules pertaining to joint tortfeasors are inapplicable. This contention is, of course, inconsistent with the previous claim made for which $75,000 was collected from the airlinеs.
Arizona applies the common-law rule.9 In addition, the Supreme Court of Arizona has indicated that unless the court or the legislature has made a contrary pronouncement, the Restatement will be generally followed in that state.10 The Restatement rule does not rely upon any technical notion of what constitutes a joint tortfeasor.11 Since the plaintiff asserted the liability of the airlines in a former suit, we think the Supreme Court of Arizona would apply the Restatement rule in this case despite plaintiff's present denial of liability on the part of the airlines.
At the time of the accident California also applied the commоn-law rule.12 Moreover, the California courts had also held that the releasor is estopped to deny the liability of a releasee.13
Utah also applies the common-law rule14 and has rejected arguments relating to the lack of liаbility of the releasee.15 Thus we must conclude that under any applicable law the release of the airlines operated to release the United States.
One final point. The plaintiff claims that it was not intended that this settlement should have the effect the defendant now contends for. That point was met and discussed in the Dura Electric case.16 We have nothing to add now to what was said in that opinion.
The judgment will be affirmed.
Notes:
Notes
Restatement, Torts § 885(1) (1939), provides:
"(1) A valid release of one tortfeasor from liability for a harm, given by the injured person, discharges all others liable for the same harm, unless the parties to the release agree that the release shall not discharge the others and, if the release is embodied in a document, unless such agreement appears in the document."
Pa.Stat.Ann., tit. 12, § 2085
See, e.g., Prosser, Torts 243-246 (1955)
The statute provides "where the United States, if a private person, would be liable * * *." 28 U.S.C. § 1346(b)
See also, Rushford v. United States, 2 Cir., 1953,
Three petitions for certiorari were filed in this case. The issue concerning the meaning of this statutory language was raised in No. 297, 24 U.S.L.Week 3100 (U.S. Oct. 11, 1955)
The Supreme Court cited this case in a recent case when it stated the problem without answering it. Hess v. United States, 1960,
Compare our opinion in Knecht v. United States, 3 Cir., 1957,
California has since changed its law by legislative enactment. The statute now provides:
"Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort —
"(a) It shall not discharge any other such tortfeasor from liability unless its terms so provide * * *" Calif.Civ. Proc. § 877.
This statute has no application to the present case because it became effective "as to causes of action accruing on or after January 1, 1958." Calif.Civ.Proc. § 880. This accident occurred in June 1956, and thе release was executed in June 1957.
Smith v. Pinner, 1948,
"This court has consistently held that it will generally follow the Restatement of Law unless a different rule has been pronounced by the court in prior decisions or by legislаtive enactment." Rodriquez v. Terry, 1955,
See Restatement, Torts § 885, commentc (1939).
Pellett v. Sonotone Corp., 1945,
Other California cases have involved the problem of whether the alleged tortfeasors were "joint" and the court has answered it by finding that the duties and violation therеof by one of the parties differed from that of the other. Lamoreux v. San Diego & Arizona Eastern Ry. Co., 1957,
Compare the language of the Restatement in note 1 supra.
Tompkins v. Clay-Street Hill R. Co., 1884,
United States v. First Sec. Bank of Utah, 10 Cir., 1953,
Green v. Lang Co., Inc., 1949,
Dura Electric Lamp Co. v. Westinghouse Electric Corp., 3 Cir., 1957,