Richards v. United States

PETITIONER:Richards
RESPONDENT:United States
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 59
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 369 US 1 (1962)
ARGUED: Nov 15, 1961
DECIDED: Feb 26, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – November 15, 1961 in Richards v. United States

Earl Warren:

Number 59, Suzanne Thomas Richards, etcetera, Petitioners, versus United States.

Mr. Rucker.

Truman B. Rucker:

Mr. Chief Justice and may it please the Court.

This case involves an interpretation of the Federal Tort Claim Act and the particular area of collision is between the Government on one hand and the American Airlines takes a slightly different position and that we represent the people here, is with reference to Section 1346 (b).

It’s really a very narrow point, a very narrow issue and it is simply where the negligent act of the Government occurs, in this instance, in the State of Oklahoma the accident and injury or in this instance the death occurred in the State of Missouri which law applies.

Felix Frankfurter:

Maybe narrow but it’s pertinent, isn’t it?

Truman B. Rucker:

Yes, sir.

I think it is and if in my argument, Mr. Justice Frankfurter, I followed too closely the argument of the Government in the Union Trust case, it’s only because of the fact that they were more persuasive than we have been today in maintaining their position in that case and the fact that we consider their position in that case quite logical and a common sense interpretation of the meaning of the statute.

In 1955 and as I say, I’ll make this very brief, an American Airlines plane crashed in the State of Missouri, killing everyone aboard.

Now, I only want to mention this because I want to get away from it.

In other words, it’s not here involved.

During a period of time of a year or so, the American Airlines settled with or had hindered into court as I understand it, the amount of their responsibility to the widows and the dependants whom we are here representing.

Charles E. Whittaker:

Under the Missouri law —

Truman B. Rucker:

Yes, sir.

Charles E. Whittaker:

— which is $15,000.

Truman B. Rucker:

Yes, sir, that is correct.

Charles E. Whittaker:

But there’s no limit in the Oklahoma law.

Truman B. Rucker:

Yes, that is correct.

Charles E. Whittaker:

Am I right?

Truman B. Rucker:

Now, within the time limitation set by the Federal Tort Claim Act, there were lawsuits filed in the District Court, United States District Court for the Northern District of Oklahoma, alleging that under the Oklahoma Wrongful Death Act that the people that we represented were entitled to damages against the Government, we made no records to the law of Missouri, against the Government because of an alleged and for this argument admitted, negligent act of the Government in the State of Oklahoma.

Now, as I say, I only mentioned American Airlines because I want to get away from it.

It’s not here involved in this appeal.

The Government interplead the American Airlines and we’ve gone along up to the Circuit Court.

Charles E. Whittaker:

I wonder if you don’t have to (Inaudible) involved.

Suppose that there was a joint liability, the American Airlines and the Government, the Government would be liable only under the circumstances and the same law as the private party, isn’t that true?

Truman B. Rucker:

With this very notable exception which was decided in the Union Trust case and which really gets to the crux of the argument because it reads, the Section reads where the United States, if a private person, would be liable to the claimant in accordance with the law or the place where the act or omission occurred and our problem here, as Mr. Justice Frankfurter said, is basically to determine what those words, if anything, mean.

And we are adopting the argument of the Government in the Union Trust case, we’re adopting the dissent of Chief Judge Murrah in our Circuit case, in which substantially he takes the position that if they intended to bring into meaning the conflict of rules law and they meant to restrict it to the liability of a private person.

They could have very well put a period after that, and therefore, all of the conflicts of rule-law would have come in to effect.

The district judge sustained the decision of the, I will call them the defendants, first that Oklahoma Wrongful Death Act did not have an extraterritorial provision and second assuming that we did have any rights that they had received or had been tendered the $15,000 and for that prior practical reason had been extinguished.

We appealed it to the Circuit Court of Appeals and the majority of the Circuit Court did not adopt one phase of the Government’s argument which appears in the second — in the concluding paragraph, in which they take the position that since under the Oklahoma Wrongful Death Act, there is no extra — extraterritorial provision.

Truman B. Rucker:

Then in effect, the people that we represent have no remedy against the Government because under those circumstances, a private person would not have.

The majority rejected that and in substance more or less amended our complaint and said, “We will then look to the Missouri law because if a private person under Oklahoma law had been involved in an accident in Missouri, in which they’ve caused the death of a person and proper service could have been obtained on them in Oklahoma then the law of Missouri would have applied.”

Now, Chief Judge Murrah, in his dissent took the position which gets, as I say Mr. Justice Whittaker, it gets to the crux of the matter.

It says they are liable, that’s true, as a private person, but in accordance with the law of the place where the negligent act or omission occurred.

Now, what does that mean?

Does that mean we’re going to take into consideration the ordinary conflicts of law rule?

The majority of our Tenth Circuit said this, “And this court is committed to the rule that where wrongful death occurs in one state and an action for damages is instituted in another, the law of the state in which the wrongful death occurred, not that in which the action was instituted, controls in respect the maximum amount of damages that can be recovered,” with that we would agree.

Charles E. Whittaker:

That’s not your question.

Truman B. Rucker:

If that — that’s just exactly the point Judge and we — for some reason, for which I assume our inability that you must confess our lack of success up to this point and that’s the reason I’m following — ultimately, we’ll follow the Government’s argument in the Union Trust case, for some reason, we have been unable to get pass the mental block of — when the act is read, where the United States, if a private person would be liable to the claimant and for some reason, we can’t get by that.

In other words, we can’t keep the district judge, learned though he may be and the majority, though, we were able or at least Judge Murrah felt differently to place an interpretation.

In other words, basically we’re down to this.

I may not be quite logical, but I’m at least trying to follow this idea down.

The Federal Tort Claim Act was for many, many years under consideration by the Government.

If I get my months wrong, it’s not too important but I think that basically it seems to me it was passed in the 79th Congress and in the 77th which held the last hearings on it.

And there was after these years of study, placed along towards the very last, this phrase in accordance with the law of the place where the act or omission occurred.

Now, that gets down to this.

What if anything does that mean?

We can only believe that Congress, at all the times I assume, I know at least in this instance, had the benefit of the largest and probably the finest law firm in the country.

We must assume that they, as well as Congress, was aware of the general conflicts rule.

John M. Harlan II:

Is there any indication in the legislative history that the phrase that you rely on so heavily here, the Congress was advertent to this what you call the conflicts of laws probably?

Truman B. Rucker:

There are two things, of course one which is unfavorable and one which is favorable.

One which is testimony of Mr. Shea in which he referred to the locale where the damage occurred, however, it’s interesting that in the written memorandum and we operate on the third, it won’t be right to write it more carefully than one who speaks, more particularly, he spoke right after this particular phrase was placed on and after to the claimant.

So as to that, I think that our argument could be a bit more sounder, but be that as it may the — we must assume that the Congress and the Attorney General’s office were aware of the general conflicts of law rule first and they were likewise aware as Chief Justice Murrah pointed out that there are few if any states that have an extraterritorial clause in the Wrongful Death Act.

Felix Frankfurter:

Do you think — do you think it helps analyzing or understanding the problem when we talk about extraterritorial effects?

Do you think that really helps to elucidate the problem?

Truman B. Rucker:

Well, it is of course involved here.

Felix Frankfurter:

I know that is involved.

Truman B. Rucker:

Well, of course, Mr. Justice Frankfurter if —

Felix Frankfurter:

I know it’s used in these cases but —

Truman B. Rucker:

Well, I would be —

Felix Frankfurter:

(Voice Overlap) it confuses me instead of helping me.

Truman B. Rucker:

Well, I think that —

Felix Frankfurter:

The statute doesn’t say anything about extraterritorial.

Truman B. Rucker:

No, sir, and it likewise confuses me.

Now, the point I make is that when Congress placed in this law giving this remedy, they intended that the law of Oklahoma was going to apply.

Potter Stewart:

Now, does that mean all the law of Oklahoma or just some of it?

Truman B. Rucker:

Well, in other words that means the law of Oklahoma except the general conflicts rule.

Felix Frankfurter:

So where do you get that —

Potter Stewart:

Why — why do you accept that?

Truman B. Rucker:

Because of this fact.

We must assume that Congress was aware of the general conflicts rule and if they intended the general conflicts rule to come into play, then they could have very easily said, where the United States if a private person would be liable to the claim because then they’re putting the United States in the position of a private person.

In other words, that’s all that need to be said.

We must remember this.

Now, basically — unfortunately for the Government, fortunately for them in the Union Trust case, this Act not only gives remedy, but basically it has a great number of limitations if I may say so.

In other words, the United States Government just didn’t turn people loose.

This, we believe, is one of the limitations, one of the conditions and as to apply —

Felix Frankfurter:

That is because — because Congress didn’t write out and say, it would be liable to say in accordance of the law of the place where the acts or omission occurred, but not to the extent that the laws of the place deals with conflicts of the law problems.

You say this is an implied limitation.

Truman B. Rucker:

It is —

Felix Frankfurter:

Isn’t that right?

Truman B. Rucker:

Yes.

Felix Frankfurter:

That’s our argument.

Truman B. Rucker:

(Voice Overlap) condition or limitation.

Felix Frankfurter:

But wasn’t the — wasn’t the central — the central rationale, the long driving force behind that was originally became to Federal Tort Act, that it’s fundamentally immoral with the United States as an employer not to be subject to the kind of responsibility for which a comparable employer in the same state is liable.

Truman B. Rucker:

Yes.

Felix Frankfurter:

Isn’t that the heart of that statute?

Truman B. Rucker:

Yes sir.

Yes, with — with certain limitation —

Felix Frankfurter:

In other words —

Truman B. Rucker:

— and conditions.

Felix Frankfurter:

— Uncle Sam was less liable than the ordinary employer.

Truman B. Rucker:

Yes.

Felix Frankfurter:

That’s an exemption.

Truman B. Rucker:

Alright, let’s just name some of them.

I’ll just take the number.

It’s needless for me to tell you but at least one of the greatest to my mind was that they eliminate the trial of a jury.

They say that we’re not liable for cost, for interest under certain circumstances not liable for assault not liable for battery and not liable for number of things.

In other words, they wish to place conditions on that.

I — and if there be some question as to why which has been raised in the past as to why they decide they want the law of the state where the negligent act or omission occurred to govern.

The Government in the Union Trust case and their memorandum filed in this Court in opposition to the writ has probably stated better than I.

More — moreover adherence to the liberal mandate and natural meaning of the clause has the sensible advantage of adopting the law of the State, (a) in which the federal employee is located and it’s controlled by his superiors; (b) which determines the applicable standard of care governing the federal employee; (c) which fixes the rights and privileges of the actor and (d) which results in greater simplicity and certainty.

Now, whether they are now of course take the position and if it will be well argued that it would be more simple to do it the other way and follow the law of where the accident occurred, we can only assume this is more logical and more accurate as this was the position of the department which was advisory to Congress at the time that this phrase was placed on this Act.

John M. Harlan II:

Well, the Government says — agrees it is that the law of the place should govern.

They say, they want all the law applied, you say (Voice Overlap) should apply.

Truman B. Rucker:

Yes.

In other words, their — I think if I may at this time which is more or less in answer to your question, although it maybe a somewhat lengthy one but to try to answer that question.

I think we should — first let me — before I get to it if I may because — before I get into this other point why my time may have expired, we have, and as to whether or not this Court has spoken in the Dalehite case and still I’m not answering your question in and I hope you don’t think I’m avoiding it.

I’m really putting it off, but as to the interpretation of this particular clause which was added on to after the claimant.

In the Dalehite case, though it’d be an extent a — and dissent, it was said the law which by statute determines the Government’s liability is that of the place where the negligent act or omission occurred.

This fertilizer was manufactured in our way in Missouri then shipped to Texas and speculation is to where the negligence occurred is unnecessary since each of these jurisdictions recognize the general proposition that a manufacturer is liable for defects in his products which could have been avoided by ordinary care.

So then at least we could say that some members of this Court started off with the premise that the law by which the statute determines the Government’s liability is that where the place of the negligent act or omission occurred.

Now, we have two or three other cases, the Hess case which was reversed on other grounds, the only reference that is made to it at this Court, where the Ninth Circuit disagreed with the Union Trust case.

And they said this case does not involve — this Court said, “This case does not involve the question that would be presented if wrongful conduct occurring within the territory of one political entity caused injury or death within a different political entity and see the Union Trust or the Eastern Air Lines case which is rather closely intermingled.

Potter Stewart:

Hess came from the Supreme Court of Oregon?

Truman B. Rucker:

Yes, sir.

Potter Stewart:

Not the Ninth Circuit.

Truman B. Rucker:

I beg your pardon, you’re right.

The — the Marshall case which I was thinking about did come from the Ninth Circuit which came awfully close to the same point, but as the Government pointed out in their brief and as we agree in that particular instance, there was a question of this ammonia, a terrible explosive being mislabeled in Utah and shipped to Idaho and which law would apply and the fact that the omission to use care occurred in Idaho as well as Utah.

So basically, we’re down to what might be called a conflict as between the Tenth Circuit with Chief Judge Murrah dissenting and the Court of Appeals of the District of Columbia with Justice Miller dissenting.

I — now, let me just outline the facts as to so-called Eastern Air Lines and Union Trust case, which I think will probably bring me up to the noon hour and then I will try to at that time answer the question that has been propounded — the best I can.

Truman B. Rucker:

The Eastern Air Lines or the Union Trust case was simply this.

The Union Trust case was an executor of the man who was killed on an Eastern Air Lines plane.

The plane crashed in the District of Columbia.

There was a suit instituted against Eastern Airlines and against the United States Government, alleging negligence on the part of both.

It developed that the negligence of the Government was in the State of Virginia, which by Oklahoma had no extraterritorial clause in their Death Act, but which like Missouri and this is the only difference between the cases as we have seen them, Virginia had the limitation which helped the Government and Missouri in this instance has the limitation which helped the Government.

In the District of Columbia, there was no limit as to Death action.

A judgment was rendered in the amount of $50,000 against both.

Without going up or down with Eastern Air Lines, except — let me say this, that the Eastern Air Lines, it seems to me that it was reversed with the ultimate analysis, they finally paid the $50,000 and the judgment was rendered against them in that amount because there was no death limitation in the District of Columbia and there is where their negligence and where the damage and the injury occurred in the District of Columbia.

As far as the Government is concerned, although it was conceded that the accident, injury, the death occurred in the District of Columbia, the act or — the negligent act or commission occurred in the State of Virginia.

So then there was raised squarely at this point.

In other words, what if anything, do these words mean that were placed on 1346 (b) which were used in other places, in accordance with the law of the place where the act or omission occurred.

In other words, it’s difficult for me I assumed maybe those more learned than I can answer them to get away from the argument or opinion of Judge Murrah when he says “Why?”

In other words, by nearly stopping there and putting a period where the United States, if a private person would be liable to the claimant, then you don’t have the conditions, you don’t have the limitations.

You are, as far as this particular part of the law is concerned, placing the Government in the position of a private person.

But although it was — as Justice — Mr. Justice Frankfurter said the basic intent of the Act took place in the position of a private person, yet that is not what they did because they put on it limitations and they put on it conditions and this is one of them.

Now, as I say, we are willing to accept the “why” as advanced for the Government in the Eastern Air Lines or rather the Union Trust case operating on the theory as I do, that they — as advisory to Congress probably knew more about it than anybody else.

Whether that is more logical or more sensible approach for somebody to determine other than myself, but at least that was placed there and can’t we assume it was placed there for a reason?

In other words this Court said —

Earl Warren:

We’ll recess now Mr. —

Truman B. Rucker:

After the District Court of — the District of Columbia had rendered this judgment for $50,000 against the Government, the Government appealed to the Court, which has to do with our conflicts of law problem.

And in the brief which we have largely copied, they say that the trial judge having found that the collision occurred in the District of Columbia applied the district law in measuring the Government’s liability.

In doing so, he purported to follow the general conflicts rule which in most instances disregards the place of the negligent act or omission and instead uses the place for the harmful force takes effect upon the body.

This appeal, nevertheless, permits no occasion for examining into the difficult problem, and I want to get into this business which I really don’t understand too well except it is a serious problem of the application of the general rule nor does the case have to be remanded for additional factual findings because Congress has foreclosed the matter by prescribing a different rule in the Act.

The Act requires application of the place “where the act or omission occurred, this provision is clear and without ambiguity.”

Then as to the reasons which they had previously given as to why the Government is in a better position because of this where they would have control of the employee, the act and so forth.

They say, “The act and omissions to the federal employees having and occurred in Virginia, the law of that State must be applied under the Virginia law applicable as to the date of the accident, they’re limited to $15,000.”

The Court of Appeals with one judge dissenting, held, they, the majority, hold that Congress does provide an explicit terms for the Government’s liability to be measured under the law of the place where its negligent employees after omission occurred and therefore the Act requires the law to be applied in this case.

Potter Stewart:

Where were you reading from earlier, the Government’s brief?

Truman B. Rucker:

First, the Government’s brief and this second was page —

Potter Stewart:

— from the opinion of the law.

Truman B. Rucker:

— 80 of 221 F.2d.

John M. Harlan II:

(Inaudible)

Truman B. Rucker:

In this instance sir —

John M. Harlan II:

(Inaudible)

Truman B. Rucker:

Our Eastern — the fact as I say briefly, the Government’s negligent act occurred in Virginia.

The act — negligent act and the collision occurred in the District of Columbia.

So the liability of the Eastern Air Lines was fixed under the laws of the District of Columbia and the Government, were able to persuade this Court that their liability was placed upon the — it was fixed by the laws of Virginia.

Now, the precise question was raised by the Attorneys representing the deceased in the petition for rehearing where he says, “Even if the majority adhered to the liberal interpretation of the Tort Claims Act requiring that Virginia must govern the extent of the Government’s liability,” it is the entire law, entire Virginia law, including its conflicts rule which must be applied.

The Virginia conflicts rule requires Virginia to recognize the law of the place where the collision occurred, hence, the District of Columbia law must be applied.

Now, the Government, in response to that petition for rehearing says, “In construing the statute, we must start with the presumption that the ordinary meaning of the word used in the act expresses the intent of Congress.”

This is from the Government’s brief again which I say we’ve largely copied.

Here, the ordinary meaning dictates a rule which differs from the general conflicts rule.

Then, again on page 15, they say, which gets to the crux of the matter in which we adopt and which we have in our brief, appellees argued that if Virginia law is applicable then its conflicts rule must be accepted.

And that they say would refer us to the place of injury which appellees assume as the District of Columbia, the argument if accepted would in effect increase the renvoi doctrine which has little support in this country side.

In any event, here again the explicit language of the Tort Claims Act given its ordinary meaning precludes abandoning the law of the place where the act or omission occurred.

The act’s point of reference is the internal law of that State, not its conflicts rule, which may carry us to the law of another state, which in turn may invoke the law still another state, coming to rest family in a situs other than the place where the act or omission occurred.

The losing party, the Attorneys for the deceased in their attempt to get into this Court, raised the precise question, we have that it would alter the long established conflict of rules law, applying the law of the District of Columbia and the Government in their successful response, not only cite the reasons which — and actually adopt because they’re favorable but I think there’s a logical person that we can adopt when they say that they want these things determined, where they know the law of that state and where the actor is and where they have control of them, we must operate on the assumption that the Attorney General’s office had some purpose in saying that was included.

Felix Frankfurter:

You regard the Department of Justice as infallible?

Truman B. Rucker:

Well, in this particular instance, if Your Honor please, they are — may I say to — back home, we’d say they’re somewhat ingenious.

Felix Frankfurter:

Like other lawyers, they try to win a case.

Truman B. Rucker:

Yes, sir.

Felix Frankfurter:

As long as conscience doesn’t stand in the way?

Truman B. Rucker:

Well, I guess so Judge, but as I say, I can only adopt their argument for two reasons.

First, I think its sound; they were in on this bill.

They knew more about the legislative history than anybody in the world when he’s arguing this Union Trust case.

We operate on the assumption.

They’re honest which we know they aren’t.

Felix Frankfurter:

Mr. Rucker, one of the great English judges of the 19th Century, who introduces measures for the Government, of course, in the House of Lords, they said the man who grabs the measure is about the worst person to tell you subsequently what he intended.

Truman B. Rucker:

Well, I will — I follow that in this case but in the Union Trust case Judge, I would disagree because I consider them to be honest and when they knew the meaning of this phrase which they were responsible and had something to do at least given the Government legal — I mean the Congress legal advice, they certainly knew what he was doing at that time and certainly knew what he’s doing when they took the position that they did.

Hugo L. Black:

And besides they’re on your side.

Truman B. Rucker:

Sir?

Hugo L. Black:

And besides of all that, they’re on your side at this time, aren’t they at that point?

Truman B. Rucker:

Yes, sir.

I mean to me as Judge — in response to Judge Frankfurter, I — I didn’t want to really say what I thought [Laughter] but how — well, I don’t know.

It probably explains it.

Charles E. Whittaker:

Well —

Truman B. Rucker:

But basically, we’re down to this Judge with seriousness.

In other words, here in — their memorandum, in our position to the writ, they say here, the ordinary meaning of the clause dictates a rule which differs from the general conflicts rule and I think that is the sensible construction of the Act.

Now, excuse me if I interrupted you.

I am not sure that —

Charles E. Whittaker:

What you’re really saying is conceding the honesty they had the change of heart between the time they wrote in the Union Trust case and in this case.

Truman B. Rucker:

Judge, let me say this, Mr. Chief — I mean Mr. Justice, may I say this in all seriousness?

As a lawyer who studies these opinions, if this accident would have occurred in Oklahoma and the negligence of the Government would have occurred in Missouri.

Charles E. Whittaker:

Now, you mean that —

Truman B. Rucker:

Yes.

Charles E. Whittaker:

— not the death but the negligence had occurred in Missouri.

Truman B. Rucker:

Yes.

Charles E. Whittaker:

Alright.

Truman B. Rucker:

Then we would have an identical situation.

Charles E. Whittaker:

Well, I wouldn’t — we would —

Truman B. Rucker:

As we had in the Union Trust.

In other words, the accident occurring in Oklahoma, there has no death limitation, the negligent act of the Government in Missouri.

Charles E. Whittaker:

Well, if the negligence here had happened in Missouri, the same state as in which the death occurred, there would be that.

Truman B. Rucker:

Yes, sir.

Charles E. Whittaker:

No doubt with that, the Missouri Act would control.

Truman B. Rucker:

Yes, sir.

Charles E. Whittaker:

But we have this question because the negligence occurred in Oklahoma and its effect was brought about in Missouri.

Truman B. Rucker:

Yes, sir.

Charles E. Whittaker:

Now, you sue in Oklahoma.

Truman B. Rucker:

Yes sir.

Charles E. Whittaker:

And you are required under this Act to rely upon the law of the place where the act or omission occurred.

Truman B. Rucker:

Yes sir.

Charles E. Whittaker:

That you say was Oklahoma.

Truman B. Rucker:

Yes sir.

That’s all we allege.

Charles E. Whittaker:

Yes.

Now —

Truman B. Rucker:

Because that’s where it all was.

Charles E. Whittaker:

Now, Oklahoma says giving effect, I mean the Tenth Circuit, giving effect to this Act, this language of this Act, we apply the Oklahoma law, but we apply all of the Oklahoma law, not just part of it and the Oklahoma rule of conflicts requires us to apply the limitations of the death statute of Missouri, but we apply it not as Missouri law but as Oklahoma law under our rule of conflicts, isn’t that what they say?

Truman B. Rucker:

Yes, sir.

And here is the answer to it.

In other words, if it was the intension of Congress that we would have the normal conflicts of rule of law then it would have been completely unnecessary to have added these words, which are a condition or a liability or restriction.

Now, you asked me earlier if I recall about history and there’s one thing I wanted to point out with reference to that.

They had originally in the Act which is indicative of their thinking, if such be necessary, any claim arising in a foreign country in behalf of an alien.

It was deleted with this phrase claims arising in a foreign country have been exempted from cost resolution whether or not the claimant is an alien.

Since liability is to be determined by the law of the situs of the wrongful act or omission, it is wise to restrict the bill to claims arising in this country because here in other words, if we did not, if the general conflicts of rule law was in full force in effect then you could have a negligent act in this country and an accident in another country and the end result, you would have a situation that that Government didn’t want or you could assume that the situs of the negligent act was in a foreign country and therefore, the Government would have been exposed to the Act — to the law of some foreign country.

Felix Frankfurter:

Mr. Rucker, may I put this —

Truman B. Rucker:

Yes sir.

Felix Frankfurter:

— may I put the other converse case.

Suppose the negligent act or wrongful act or omission had taken place in Missouri —

Truman B. Rucker:

Yes, sir.

Felix Frankfurter:

And the death had occurred in Oklahoma and Missouri law was such a situation but Oklahoma law is with reference to ordinary litigants (Inaudible) to place of death and Oklahoma law is much more favorable than Missouri law, I take it you would feel bound not to take that client’s case and say that Oklahoma law governs because it’s — Oklahoma rule govern because it’s part of Missouri law.

I take it in view of what you say here that lawyers are bound by whatever view they’ve taken in the courts in all subsequent conduct, is that right?

Truman B. Rucker:

Well, if I can understand Your Honor’s question, I’ll answer it as fairly as I can.

Felix Frankfurter:

I want to leave no doubt about it.

Truman B. Rucker:

Yes, sir.

Felix Frankfurter:

The negligent act or omission is in Missouri and the death in Oklahoma.

Missouri law is that where death occurs for wrongful act in Missouri, you look for the — for the determination of legal rights, the state of the law — state of the place of death which was Oklahoma and (Inaudible) case and I ask further that Oklahoma law is much more favorable in the damage to the basis of recovery.

Do you feel you couldn’t fairly represent a client?

Truman B. Rucker:

Oh, yes, yes.

Felix Frankfurter:

But you’d be enforcing Missouri law.

Truman B. Rucker:

But here, that would involve a situation other than Federal Tort Claims Act.

Felix Frankfurter:

I’m assuming the Government.

Truman B. Rucker:

Yes, sir.

Felix Frankfurter:

The Government.

I’m assuming the same situation somebody in the guiding tower or whatever you call it, was negligent in (Inaudible)

Truman B. Rucker:

Well, yes, sir.

Felix Frankfurter:

And I’m supposing everything the same except the states relationship reversed.

Truman B. Rucker:

Well, then I see that we would have no choice under the reading of this act.

It’s not what I would like — or not like to do but under the reading of the Act and —

Felix Frankfurter:

But the reading of the Act has to be construed namely whether you’d merely take Missouri law in both negligence and death occurred in Missouri or Missouri law if negligence began in Missouri but the consequences resulting death in Oklahoma and Missouri says the reverse of what Oklahoma says.

Truman B. Rucker:

Of course, that’s the same situation we had in Union Trust.

In other words, I feel that — that under the — the reading of the Act, the natural meaning of the words and history of the Act as well as the interpretation of the Act put upon by the Court of Appeals for the District of Columbia that where the act or the negligent act of the Government occurs in Missouri that that is the law that governs and — and —

Felix Frankfurter:

And so you would — so you would tell your client that you restricted to the penurious basis of recovery of Missouri although Missouri says, “Since your client has died in Oklahoma, you have the benefit of a more favorable, a more generous Oklahoma law.”

Truman B. Rucker:

Yes.

Felix Frankfurter:

You would that?

Truman B. Rucker:

I –

Felix Frankfurter:

I hope not.

Truman B. Rucker:

If — if I was being intellectually honest and in following what I determine the law and —

Felix Frankfurter:

I think no lawyers did that except for partisan purposes.

Truman B. Rucker:

Well —

Charles E. Whittaker:

Mr. Rucker.

May I ask you, please?

Isn’t — is it true that if the Government is liable as with tort for failing to make American Airlines comply with the safety regulations in Oklahoma, would not American Airlines also be liable for that breach of safety regulations?

Truman B. Rucker:

Yes.

Charles E. Whittaker:

Alright, now does not this Tort Claims Act require the same judgment against the Government as it would against the private party?

Truman B. Rucker:

Yes, sir, to a point.

Charles E. Whittaker:

Alright.

Now —

Truman B. Rucker:

— here — excuse me.

Charles E. Whittaker:

If I may go just one step further.

They are sued jointly —

Truman B. Rucker:

Yes sir.

Charles E. Whittaker:

— in Oklahoma for this very thing, this death in Missouri for negligence occurring in Oklahoma.

Truman B. Rucker:

Yes sir.

Charles E. Whittaker:

What law then would Oklahoma apply to American Airlines?

Truman B. Rucker:

Alright sir, now, I think that is an appropriate illustration and I will answer to the best I can.

In other words, if Congress had stopped when they said private person then you would have no problem as between the Government and American Airlines because under the law of Oklahoma, a private person, the general conflicts of rule law come into force and effect.

Basically, that’s what we have to determine.

So, you would have the law of Oklahoma and no jury, if I may say so, and few other things.

Let me say that the injured or the deceased representatives don’t get against the Government.

Charles E. Whittaker:

Yes, we’re talking about what law applies?

Truman B. Rucker:

Yes, alright, the law of Oklahoma as far as the Government is concerned, the law of Missouri as far as the Government is concerned, the identical situation, except in reverse, that you had in the Union Trust case.

In other words, you have for example a trial, a jury determining the issues as far as American Airlines is concerned, the Judge determining the issues as far as the United States Government is concerned, the law of Oklahoma would apply to the United States Government and the general conflicts of rule law coming into effect would apply to the American Airlines.

Now, as I’ve said —

Charles E. Whittaker:

Then you’d have a different result, would you, as to one over the other?

Truman B. Rucker:

You did in Union Trust.

In other words, you had — in Union Trust, they were able to recover 50,000 against the Eastern Air Lines and 15 against the Government or it was 50 and reduced to 50.

Hugo L. Black:

It’s rather difficult to get to anyone rule (Inaudible).

Suppose the negligence of — besides here negligence of a (Inaudible) and the negligence of the power when it got over into Missouri, both of them contributed —

Truman B. Rucker:

Yes.

Hugo L. Black:

— what law was governed.

Truman B. Rucker:

Yes sir.

Mr. Justice Black —

Hugo L. Black:

What was governed (Voice Overlap)

Truman B. Rucker:

— as you say, when you’re in to the hypothetical — it was — after answering this, I would like to save the time which I apparently —

Hugo L. Black:

That’s alright.

I will not — you need not to answer.

Truman B. Rucker:

Alright, thank you very much.

Hugo L. Black:

I can’t read the complication — the illustration — complications we have at this point.

Earl Warren:

Mr. Medalie.

Richard J. Medalie :

Mr. Chief Justice, if it please the Court.

The issue in the present case is a constantly recurring issue which in any case under the Federal Tort Claims Act in which the act or omission takes place in one state and the injury leading to death in another.

(Inaudible) at the present time, there are close to 100 cases now pending out of recent air crashes in which this issue has been presented.

It’s for this reason that the Government’s interest today is more than a pecuniary one.

We are interested in arriving at a satisfactory solution and propounding a reasonable and workable rule by which our liability may be determined under that Act in cases of multistate tort.

Now, as the petitioners have stated — the Government and petitioners are in agreement that Section 1346 (b) states in clear and unequivocal terms that the liability of the United States shall be determined in accordance with the law of the place where the act or omission occurred.

We defer, however, as to what the content of that law shall be unless the Government says that we should refer to the whole law of the place where the act or omission occurred including the conflict of laws principles.

In this case, it would be the court law of Oklahoma.

Petitioners on the other hand would have this Court interpret 1346 (b) as referring to the internal law of Oklahoma.

And American Airlines, our fellow respondents, although agreeing with the Government make — makes an alternative argument that 1346 (b) should be interpreted to refer to the law of the place of the injury.

I’d like to turn to each one of these positions in turn.

The Government believes that its interpretation of 1346 (b) as referring to the whole law, not only complies with the spontaneous and literal meaning of the language employed in that Act, but it also complies with the purposes of the Act as embodied in Section 2674 which states that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances.

Thus, since a private individual being sued in a District Court pursuant to diversity jurisdiction, since his liability would be determined according the whole law of the State in which that Court is sitting including the conflict of laws principles, according to the rule laid down by this Court in Klaxon v. Stentor so too the Government would have the Tort Claims Act, Sections 1346 (b) and 2674 requiring the Court to look to the whole law of that place where the Act occurred including the conflicts of laws principles when the liability of the Government is to be determined under the Federal Tort Claims Act.

It is our contention that these Sections, Section 2674 and 1346 (b) far from being exceptions to one another, not as far for having 1346 (b) as an exception to 2674, it is our contention that these two Sections should be read together in pair material that they should be given equal effect.

In fact, just on an ordinary statutory interpretation, ordinary rule of construction when two sections of a statute refer to the same subject matter, they should be given equal effect unless they are completely contradictory.

And indeed, the Government’s position shows quite clearly that these two can be read together so that one may evolve a reasonable rule to govern the liability of the United States.

Further, when this — when the 1946 Act was passed, these two sections, these two provisions, now embodied in 1346 (b) and 2674 were included within the same section of the Federal Tort Claims Act which was then Title IV of the Legislative Reorganization Act of 1946.

And each was preceded by the proviso that it was to be subject to provisions of this Act.

In fact, the two provisions had been included in the same section with the same proviso in many of the bills which preceded the passage of the Federal Tort Claims Act and in fact, even when these two provisions were put into separate sections after the revision of the judicial code in 40 (a), nevertheless, they were still preceded by language saying that they were to be subject to provisions of this Act.

And therefore, for this reason, we believe that two should be read together in harmony so that the liability of the United States would be determined in accordance with the law of the place where the act occurred in the same manner and to the same extent as a private individual under like circumstances.

In contrast, petitioner would have this Court interpret 1346 (b) as referring to the internal law of the State where the act occurred.

The fact, under our interpretation, of course, it would violate the clear requirements of 2674.

Indeed, petitioners themselves at page 25 of their brief, admit that under their interpretation, the liability of the United States would not be the same as a private individual in like circumstances.

It would not be in the same manner and to the same extent.

And in fact, in the court below, Chief Judge Murrah, when he stated that the — he would have had the United States be held liable under the Federal Tort Claims Act, under the law of Oklahoma.

He stated at page 45 of the record that the Government would be held liable even though a private person would not be liable according to Oklahoma law under the same circumstances.

Petitioners, however, say that when this Act was passed in 1946, we must assume that Congress was cognizant of the normal conflicts of laws rules which referred to the law of the place of the injury as well as being cognizant of the minority rule which — which referred to the law of the place of the Act.

And that when it embodied in Section 1346 (b), this clear and unambiguous language law of the place of the act or omission, it in effect selected the minority rule, the minority conflicts rule.

Well of course, the problem with this interpretation is, first of all, that the section does not say in accordance with the internal law.

Richard J. Medalie :

It only says in accordance with the law of the place.

Moreover, there is no indication in the entire 28 years of legislative history of the Federal Tort Claims Act that Congress even gave a second thought to the problems of conflict of laws.

It may well be that they were cognizant of conflict of laws rules, but with respect to the Federal Tort Claims Act, they never consider — they concerned themselves.

Charles E. Whittaker:

Well if they were, Mr. Medalie.

Richard J. Medalie :

Yes.

Charles E. Whittaker:

What are the — what if they were not.

What are the presumptions here?

Did they not use a phrase that is broad enough to comprehend and embrace the rule of conflicts when they said — well, the law of the place where the act or omission takes place, does that mean some or all the law of that place?

Richard J. Medalie :

Well, Government interprets it to mean the whole law.

It — it’s quite true that it might — it may very well encompass a particular choice of conflict of laws just as it might encompass an embracing of the whole law and then looking to the States for its own conflicts of law, but we must interpret, that would seem, this Section not in vacuum but in context of the whole Act.

I think, for example, that petitioners might have had a better case had Section 1346 (b) been the only provision in this Federal Tort Claims Act dealing with liability of the Unites States.

When, however, we concern — we look to Section 2674 which says that the United States must be liable in the same manner and to the same extent as a private individual under like circumstances, I can only draw the conclusion that Congress then meant what it said and that when one analyzes how a private individual is held liable whenever he’s brought into court and when one realizes that a court in effect looks to the whole law and to determine where the ultimate substantive law reference will be, I can only conclude that Congress also intended that the liability of the United States should be determined in the same manner and to that same extent as a private individual and this is our essential position here.

Indeed, one of the problems in this case is that — is this — the use of the language.

In fact, this Court in the Dalehite case which we cite at page 16 of our brief, pointed out that uppermost in the collective mind of Congress was the ordinary common law tort and that the — and that the example which was constantly reiterated was that of negligence from the driving of a motor vehicle.

And when one considers what happens when a motor vehicle has a collision, one realizes that the act — the accident, the injury, the death all occur in a single jurisdiction.

Therefore, there is no conflict of laws provision.

It is for this reason that we believe that Congress did not really intend or rather it didn’t even consider that 1346 (b) would, in effect, be an indication of a choice of conflicts of law.

The — what Congress was interested in and it is, I think, clear from what it did in the 76th Congress, which we discuss at page 14 of our brief, Congress was interested in establishing principles of tort liability which would not be based on a uniform federal system of tort liability, but rather that it would have courts look to the laws of the State, look to the local law, look to the state law in order to determine liability in the same manner and to the same extent as a private individual.

Felix Frankfurter:

Mr. Medalie —

Richard J. Medalie :

Yes.

Felix Frankfurter:

— throughout the years that this legislation was being urged on Congress except for committees that the board just fighting, et cetera —

Richard J. Medalie :

Yes, sir.

Felix Frankfurter:

— et cetera, et cetera, was there ever a thought of having an independent tort law in which the Government would be responsible over the idea throughout that the Government has been employer on the same basis of the local employer?

Richard J. Medalie :

No.

In the original — some of the early tort claims bills, there were — there was a thought that a system of compensation for personal injury and death would be set up and administered by an Employees’ Compensation Commission.

This would have been a uniform system of liability.

Felix Frankfurter:

That was very early.

Richard J. Medalie :

The very early, yes.

In the 76th Congress, first session, for the first time in Senate 2619, H.R. 7236, which we discuss at page 14, Congress decided that the — that the Government could be brought before the District Courts or the Court of Claims in order to have its liability determined.

Once it did that, it began to change its approach.

Richard J. Medalie :

It then began to look to what local law was.

For example, in — in those first bills, they still had certain elements of the negligence, specifically provided for in the particular section, but later on, namely in the 77th Congress, first session and certainly in the second section, Congress established a means by which the District Courts will have exclusive jurisdiction.

And it said and we quote — and I quote from page 16 of our brief that in vesting exclusive jurisdiction in the District Courts, Congress did it because the District Courts sits in only one State and is familiar with the local laws and decisions that are made pertinent to the determination of tort claims against the United States.

From this, again, I can only draw the conclusion that Congress’ interest was to look to local and state law.

And when one looks to local and state law, one has to take into effect or take into consideration the problem — the actual conflict of law provisions.

Therefore, when a multistate court occurs as it did in this case, little comfort can really be gotten from the — any hypothesis or speculation as to what Congress must have thought or what Congress must have considered when it passed the Tort Claims Act.

The only thing one can do is ask what Congress actually did in the situation.

It’s clear that Congress did not consider conflicts of law but how does the Act operate when we have a — an accident which involves a multistate tort?

Well, in the first place, as we mentioned before, you look to the law of the place of the Act and you look into the same manner and to the same extent as a private individual under like circumstances.

And when those two provisions are read together, the only conclusion can be that the whole law of the State where the act or omission occurred is the only law which can govern the liability of United States under the Federal Tort Claims Act.

Charles E. Whittaker:

That would mean in your view that — in answer to the question that I asked Mr. Rucker that if American Airlines and the Government were sued jointly, the same result, the same judgment —

Richard J. Medalie :

Precisely this.

As a matter of fact, much has been discussed about the Union Trust case and it might be interesting to see just what did happen in Union Trust because the Government has never really recovered from the confusion which Union Trust let us.

Virginia — the Eastern Air Lines was held liable in accordance with the law of the District of Columbia in which there was no maximum liability — limitation.

United States, on the other hand, was held liable according to the internal law of Virginia which there was this maximum limitation of $15,000.

Moreover, and rather interestingly, the District of Columbia law only satisfied and only gave recovery for pecuniary loss to the — to the particular beneficiaries of the decedents whereas the Virginia law gave recovery for loss of deceased cares as well as pecuniary loss.

Loss of his attention in society as well as some which may be deemed, fair and just as solatium to the beneficiaries for the sorrow and mental anguish caused by the death so that when it finally came time for the United States and Eastern Air Lines to sit down and workout a compromise as to how would we split the costs of our liability, we found that in certain instances, Eastern Air Lines, even though being held liable under the District of Columbia law would actually not have to pay a cent because the beneficiaries were not — did not have any pecuniary loss.

They were distantly removed from the deceased and therefore did not have to rely on the deceased for any pecuniary loss whereas the Government would have had to pay up to the $15,000 limit of Virginia since Virginia’s law covered so many other factors.

It is I think at this point that the Government began to reassess its basic position, not on the basis of whether the Government may win more or lose more in a particular case, but rather what can be the most flexible and reasonable and workable rule in the situation.

And then sitting down and going over the legislative history again, and tying to make sense out of the Federal Tort Claims Act, we arrived at a conclusion that it really should be according to the whole law of the place where the act or omission occurred in order to at least have a standardized rule so that time and time again when these situations occur in which there would be — there was multistate torts, we wouldn’t get into these very difficult questions of how we measure liability according to different acts — according to different states.

In fact, one other problem may be mentioned here, at the present time there are —

Potter Stewart:

Would that — would this really avoid the kind of trouble that you very interestingly just told us about that you ran into in Eastern Air Lines case.

What if in that very case the facts had been reversed — the states have been reserved, the jurisdiction so that the Government’s negligent act occurred in the District of Columbia and the Airlines’ negligence and the injuries occurred in Virginia?

Richard J. Medalie :

That’s right.

Well, we would (Voice Overlap) no.

There would have been a problem under our present rule because when the Eastern Air Lines and the United States were sued as joint tortfeasors.

They would — their liability would have been determined according to — well, Eastern Air Lines liability would be determined according to the whole law of state where the Court was sitting and the Government would have determined according to the whole law of the place of the act which in turn would have in most instances refer to the law of the place of the injury so that the measure of liability would have been the law of the place of injury and we would have had a feasible solution to the problem.

In other words, each — each defendant in that case, United States and Eastern Air Lines would have had the same type of liability.

Take for example this — this particular problem and it has risen for example in the Staten Island crash that occurred some time ago.

There are now 24 suits pending in that case.

Richard J. Medalie :

Two suits have been brought in the District of Columbia, 16 in the Eastern District of New York, six in the Southern District and one in Southern District of California.

The negligent — the crash occurred in New York, the accident occurred in New York.

Negligence in the suits in District Columbia are alleged in both New York and in the District of Columbia.

Negligence in the New York cases are alleged not only in New York, but also in New Jersey where there were a radio contact with the plane as well as every single State in which the plane had passed over and had ground to radio communication before the crash occurred, so that we have at least a half a dozen if not more states in which there’s an allegation that negligence occurred in these states.

Now, supposing it is determined that indeed the negligence did occur in each of these states, how do we arrive at the rule?

Shall we choose New York’s rule or should — if we use the interpretation of petitioner, should we use New York’s rule or should we use New Jersey’s or perhaps California‘s or Iowa’s?

But the thing that is the same in each one of these — in the laws of each one of these states is that they have a conflict of laws rule which refers most of the time to the law of the place of the injury so that we may take these half a dozen states, not have to decide where the most negligence occurred, but in fact, refer to the law of the place of the injury and therefore have a satisfactory solution.

Felix Frankfurter:

But in any event — in any event, if you have — if the locale of the negligent act is in a different state, then you have no problem with confusion for this harmony so far as the federal statute is concerned.

Richard J. Medalie :

No, that —

Felix Frankfurter:

Because the federal statute makes the equation between the Government and a private employer in the same territory.

Richard J. Medalie :

Precisely the point, that’s right.

That’s why we tend so much importance to that phrase, the phraseology in Section 2674.

Potter Stewart:

There are some of the states, are they not or I am mistaken which under their own wrongful death statutes provide that if death has occurred — death is inflicted somewhere else by negligence — by negligent act occurring within the State then the law of the home state should prevail.

Are there any such statutes?

Richard J. Medalie :

Well, certain elements (Voice Overlap).

Well, for example, take the case of Wells v. Simonds Abrasive Company.

Remember when the accident took place in Alabama and under the Alabama wrongful death statute, you have a two-year statute of limitations, but the — but the actual forum was Pennsylvania Federal District Court.

When Pennsylvania referred to the whole law of Oklahoma — whole law of Pennsylvania to determine what liability should be, discovered that Pennsylvania would have applied its own statute of limitations which was only one year and therefore it dismissed the case.

And this Court stated that this was perfectly legitimate because it was not a violation of full faith and credit cost to give effect to its own statute under certain circumstances.

And indeed, you have other problems such as burden of proof may evolve on either the plaintiff or defendant depending on the State with respect to contributory negligence.

So, the Government isn’t saying that we are establishing a perfect interpretation.

I think that the very essence of our federalism is that we have such a variety of solutions to the different states that it would be impossible to well out of this a single, all inclusive formula.

I think Dean Griswold in his discussion in the article renvoi revisited said that the states are not like a checkerboard which a black states and white states each which a perfect conflict of laws rule.

The thing — what we’re trying to do and I think the thing that we’re — we think would be the best interpretation is at least to try and arrive at the most practicable solution to this problem so that in — in the majority of instances, in most cases, we could have a satisfactory solution.

There’s no question that at the present time, there isn’t a satisfactory solution especially with some states going off in different directions or some courts saying that you should look into the internal law of one State or the other or look into the whole law one State or the other.

Potter Stewart:

I don’t — I — I certainly agree with what you’ve just implied that the desirable thing is to have these questions settled.

Richard J. Medalie :

Yes.

Potter Stewart:

There seemed three points of view at least.

Richard J. Medalie :

That’s right.

Potter Stewart:

But I don’t quite understand why just in the abstract quite apart from the —

Richard J. Medalie :

Yes.

Potter Stewart:

— matter in this lawsuit.

Why in the abstract, one of these three rules is philosophically or symmetrically or jurisprudentially superior to the other two as contrasted with the desirability of — of making the rule whatever it is certain?

Richard J. Medalie :

Well, I think that — well, I think this — this raises two questions.

One question is whether we philosophically think that one rule is better than the other and the other question is whether Congress when passing the statute ever considered what was better or what — or in effect what Congress actually wanted to do in this case and it seems to me that Congress at least was clear on one point namely that the liability should be similar when the United States is an employer and when the private employer —

Felix Frankfurter:

When you say similar, that’s a loose term for me in reading the statute.

Richard J. Medalie :

Well, I’ve seen that —

Felix Frankfurter:

(Voice Overlap) the one thing you could say is that Congress didn’t want the United States to be liable when the private owner isn’t or vice versa, the United States to go free when the private owner has to pay.

Richard J. Medalie :

Well, that’s right.

Felix Frankfurter:

I should think it as one thing clear about the whole pressure and momentum in history of this legislation, that’s clear.

Richard J. Medalie :

That’s right.

What I was doing was addressing myself to the problem raised by Mr. Justice Stewart that even though Congress wanted this, it may happen that the laws of the particular states are different so that regardless of which rule we accept, you will have a disparity in recovery.

Felix Frankfurter:

Well, in the language of the — of the statute doesn’t leave us free —

Richard J. Medalie :

No.

Felix Frankfurter:

— to exercise our preference, does it?

Richard J. Medalie :

In our view, it doesn’t.

Potter Stewart:

Well, some fairly respectable judges have deferred about this.

Richard J. Medalie :

That’s — that’s quite true.

That’s quite true.

For example, American Airlines says that in its alternative argument that we — we should refer to the law of the place of the injury because this is the normal conflict of laws rule and in fact, in some instances, I suppose it would solve the problem that you, Mr. Justice Stewart raise.

Charles E. Whittaker:

The only trouble with that is it would require us to rewrite the statute.

Richard J. Medalie :

That’s right.

The only trouble is that it doesn’t comply with the literal language of the statute.

And moreover, one other problem, in those cases in which a State would give effect to its own internal law when deciding and determining the private liability of a person, the inflexible rule which the American Airlines proposes would put us in a situation in which the United States’ liability would be determined by the law of the place of the injury so that — then the liability of the United States would not be in the same manner and to the same extent as a private individual under like circumstances.

I think what the Government really is trying to say, what I am trying to say is that our interpretation at least gives us a more flexible rule, a rule which will be governed solely by what the local and state law — how the local and state law determines liability and that if perchance the — there should be changes in the local and state law, if perchance they switch from one reference to the law of the place of the injury and in certain instances may refer to the law of the place of the act so too the federal rule will follow those changes and so that the United States liability will be in most instances coextensive with the liability of the private individual.

Felix Frankfurter:

Mr. Medalie.

Richard J. Medalie :

Yes.

Felix Frankfurter:

I don’t mean to suggest that there is no problem of statutory construction.

Richard J. Medalie :

No.

Felix Frankfurter:

I did mean to suggest that we’re confined within what Congress has told us and not our own philosophic preferences and they’re particularly confined by the underlying basis of this legislation.

Richard J. Medalie :

I agree wholeheartedly.

Felix Frankfurter:

And I can — I say again that I should imagine Congress would be startled to be told that in the same Court, in the District Court, one sitting with the jury and one sitting not with the jury, a different law applies under the Federal Tort Act as against the relevant federal — state law to be enforced depending on what the Government or a private person.

I think one can be awfully dogmatic about that.

Potter Stewart:

Well, except to the case like defamation then the law will be quite different, wouldn’t it?

Richard J. Medalie :

Yes, but that’s because there is a specific exception in Section 2680.

Felix Frankfurter:

That’s because the statute doesn’t deal with it.

Richard J. Medalie :

That’s right.

Felix Frankfurter:

And it causes the doubt.

Richard J. Medalie :

That’s right.

Felix Frankfurter:

But as to the torts with which it does deal, the thing you can be completely dogmatic about is that Congress didn’t mean to impose a liability from which the private employer is free or withdraw liability to which the private employer is subjected.

Richard J. Medalie :

Yes.

The Government is in wholehearted agreement with that statement.

Felix Frankfurter:

That made no rule for flexibility.

Richard J. Medalie :

That’s right.

So, the practical — now turning from theory to practice at this particular time, the practical effect of the Government’s position is that we would refer to the whole law of the State of Oklahoma in determining the liability of the United States.

Now, Oklahoma does not have a conflict of law — conflict of laws principle which says that the state courts will look to the internal law of that State in determining the liability of a private individual in cases in which the act occurs in that State but the injury occurs in the other.

The Oklahoma wrongful death statute is only operative when the injury occurs within the borders of Oklahoma.

The conflict of laws rule which is operative in Oklahoma is one which refers to the law of the place of the injury.

And that law would be the Missouri wrongful death statute and the — and this would govern the liability of the United States, but since that statute has a $15,000 limitation and since — since each one of the petitioners has received $15,000 from American Airlines in full settlement of its claim be — under the Missouri wrongful death statute, we conclude that the — and we believe that the District Court was correct in dismissing the complaint for failure to state a claim upon which relief could be granted.

Charles E. Whittaker:

(Inaudible) please.

Richard J. Medalie :

Yes sir.

Charles E. Whittaker:

You said that each of these parties settled with American Airlines in full and received $15,000.

Richard J. Medalie :

That’s right.

Charles E. Whittaker:

Did that extinguish the whole cause of action?

Is this a moot case?

Richard J. Medalie :

Well, I — it’s a moot case as far as the Government is concerned under the Missouri wrongful death statute or — well, by way of the whole law of Oklahoma.

Perhaps what you’re driving at Mr. Justice Whittaker is the problem of release of one — of all joint —

Charles E. Whittaker:

Did it expressly reserve the cause of action against the Government in the release assigned?

Richard J. Medalie :

I believe in some instances they did and some instances they didn’t, but the fact is that Missouri goes — Missouri law and Oklahoma law are one on this problem that when you release one tortfeasor, you nevertheless have a claim against the other tortfeasor so that —

Charles E. Whittaker:

(Inaudible)

Richard J. Medalie :

Yes?

Charles E. Whittaker:

(Inaudible)

Richard J. Medalie :

Oh, I’m sorry.

They have to — I’m sorry, they have to include it specifically in the release.

Charles E. Whittaker:

(Inaudible)

Richard J. Medalie :

That’s right.

Under Oklahoma law, they do not have to include it within the release — what they do have to do is if they want to release all tortfeasors, they must include that within the release, but regardless of that, the question here is not, what is the effectiveness of the release.

The question here is, how the plaintiffs may — or the question is may the plaintiffs, may the petitioners recover under the Missouri wrongful death statute to which there’s a reference by way of Oklahoma law?

And because there is this $15,000 limitation, that precludes the question because there is no more recovery under any other law in this particular case.

Felix Frankfurter:

But not if your — if the petitioner is right.

Richard J. Medalie :

Not —

Felix Frankfurter:

And if the petitioner is right, I should think —

Richard J. Medalie :

Quite true.

Felix Frankfurter:

— Oklahoma release to apply.

Richard J. Medalie :

Quite true.

Felix Frankfurter:

He can — he can appeal to that.

Richard J. Medalie :

I should think so.

Felix Frankfurter:

So that we got more problems (Voice Overlap)

Richard J. Medalie :

Well, we do have more —

Felix Frankfurter:

You’re not going for finding out what the release law of every state are.

Richard J. Medalie :

That’s right.

The — if this Court accepts petitioner’s interpretation of 1346 (b) then, of course, there is a possibility of more recovery because at least — and American Airlines will clarify this, at least in regard to several of the petitioners, there was no release of the Government in this case.

That’s precisely why they brought the Act — they brought their cause of action, their claims in Oklahoma and a suit for $300,000, sued the United States for $300,000 each.

But under the normal rule, if this Court were to accept our rule, our interpretation of the Act, that would preclude the matter and there would be no recovery in the present case and in those — in that instance, the District Court was correct in dismissing the complaint and that, therefore, the judgment of the court below should be affirmed.

Earl Warren:

Mr. Patterson.

W. B. Patterson:

Mr. Chief Justice, members of the Court.

Let me start out by this question you just asked.

It’s our impression that the law of Oklahoma and the law of the State of Missouri are identical and that is a release of one joint tortfeasor or one tortfeasor releases all tortfeasors unless it’s specifically excluded from the release.

Charles E. Whittaker:

(Inaudible)

W. B. Patterson:

That’s right.

W. B. Patterson:

We contend, of course, there has been satisfaction.

We don’t think that is the precise problem before this Court in this instance, but it certainly — well, I am sort of — in representing my client in an anomalous position here.

I — I don’t want my client to have pay $15,000 or $300,000 when we’ve already paid and discharged our liability under the State of Missouri.

I think, as has been suggested here, that the (Inaudible) problem in the Federal Tort Claims Act was to waive the Government’s immunity where they theretofore had an immunity and make them liable just like a private individual would be under the same circumstances.

I think that is the clear purpose of the Act.

Our position in this regard, we do not question the position of the Government.

We think their position is logical and we think if you stick to the tenant advanced by petitioners here that you must look at the strict language and follow that, then the position of the Government is the only position which the Court logically takes.

In other words, if you look to this phrase where the act or omission occurred and say now that is clear, it’s unequivocal, we won’t look any further, we won’t look to any other phrase in the act, we’ll just pick out that one phrase and we must do this.

But then, by the same token of words to say the liability is the same as that of a private individual under the law of the place, you wouldn’t under that rule of strict interpretation write in the internal law or the substantive law.

You would look to the entire law under your rule of strict construction.

Felix Frankfurter:

But why do you say strict construction?

This Court had to face this problem in Klaxon and we decided under the year Erie-Tompkins Rule, we have to decide there what is the law of the State and the law of the State is the body of the law of the State.

W. B. Patterson:

That’s true, Your Honor.

Well I — I mean —

Felix Frankfurter:

I’m not suggesting that — that all the scholars think and agreed to the wisdom of that decision —

W. B. Patterson:

Well, we — we’re certain at all —

Felix Frankfurter:

There it is and we’ve acted on it.

It settled law I assume so far as anything is settled and applied again and again the rest of the country, the states have adjusted themselves to it, federal courts, there wasn’t any thought.

The argument was made in Klaxon that that’s alright for — the phrases weren’t used as my memory serves me, internal law as against the law that — that takes into account of existence of other states, that’s what extraterritoriality means.

But they really get to the notion that there are two kinds of state law.

W. B. Patterson:

Well, that’s precisely what I was trying to say.

Maybe, I wasn’t saying it very good but that’s exactly what — what —

Felix Frankfurter:

As I understand you, you are shearing off from there —

W. B. Patterson:

No.

When I say that when they said law, they may at law and they didn’t mean to divide it to half into groups of the internal law or extraterritorial law.

When we say the law, well we mean the ordinance is in the case laws and the statutes would mean the law.

Felix Frankfurter:

And that which — and that which they absorb is there — what maybe the pronouncement of another state to which they wouldn’t have to yield but in fact do.

W. B. Patterson:

That’s right.

That’s precisely our position.

Now, as I say, we have no quarrel or whatever —

Potter Stewart:

MWell, that’s precisely the Government’s position and — and you’re saying you have no quarrel with it.

W. B. Patterson:

That’s right.

Potter Stewart:

But you have an alternative position?

W. B. Patterson:

I have an alternative position because I say I want to present my clients from having stayed here and as my (Inaudible) have been here, I have no altruistic motives really in that regard. [Laughter]

My alternative position, I think, is equally as logical.

In fact, it may clear a little difference to me in which the Court accepts the result will be the same.

But my alternative position is when you say that the Government that shall be liable to the same extent as a private individual would be, when you read that language, the only way you can do that is to send them to the place where the injury occurred because —

(Inaudible)

W. B. Patterson:

— where their injury or the death occurred.

American Airline is sued in the courts of Oklahoma for this very act.

The Oklahoma courts would have interpreted the rights of American under the Missouri statute because the deaths occurred in Missouri.

(Inaudible)

W. B. Patterson:

Let me discuss that just a moment, by just reading from some questions asked before the Congressional Committee.

I — it’s our theory that Congress wasn’t dealing with the conflicts problem.

They were designated that instead of having a local law and — and still having a body of federal law, we are going to have to apply the local laws and that is the distinction they were making by the use of the phrase, act or omission.

Now, here is the question —

(Inaudible) by the local law?

W. B. Patterson:

That’s right.

And as I say, I’m not questioning the Government’s position if you want to take that additional step.

You get to the same place if you accept either of these rules of constructions.

What you have said originally, you’re going to determine it by the law of the place where the death occurred or while you say you’re going to look to the conflicts rule which in turn will send you there.

You get to the same spot in this case and I think almost every case Judge.

I believe that — I believe —

Felix Frankfurter:

I don’t follow that.

If Oklahoma — if Missouri where the — where the act or omission occurred, where the negligence occurred had a rule that you — that it doesn’t care about Oklahoma —

W. B. Patterson:

But they don’t Judge.

But they don’t.

Felix Frankfurter:

But suppose they did?

W. B. Patterson:

Well —

Felix Frankfurter:

Then you would —

W. B. Patterson:

Would you expose that and if that’s true then we wouldn’t raise this result, but I think you’ll find the rule in 48 or 49 states to be just exactly the same.

Felix Frankfurter:

But that means — are you telling me, I’m asking you —

W. B. Patterson:

Yes.

Felix Frankfurter:

— that the law of the 48 — this is governed by a lot of statutory enactments in relation to this, aren’t they?

W. B. Patterson:

With reflect — with respect to the conflicts problem Your Honor?

Felix Frankfurter:

Well, the problems are tied up which you bundle up on the conflicts.

I don’t mean the general conflict law that the — that the basis of liabilities where the — the locality of the occurrence of the complaint of negligence, that’s the general rule, isn’t it?

W. B. Patterson:

No, sir.

I think the general rule and almost the universal rule is that the liability as determined by the law of the place where the injury occurred where the tort became a tort.

I think that is an almost universal rule, for instance, a death in the State of Missouri, it applies to Missouri law no matter what state court tries.

Felix Frankfurter:

You’re instructing me.

That’s the law —

W. B. Patterson:

Yes sir.

Felix Frankfurter:

— and I’ve learned something.

I suppose that the general law was that — that the cause of action arises where the injury — where the — where the negligence takes place and then variations on that because of the significance of death.

W. B. Patterson:

Your Honor, I think you are in error in that thinking —

Felix Frankfurter:

Well, you’ve looked into this thing much more recently than I have.

W. B. Patterson:

I think —

Felix Frankfurter:

And if you’re telling that there’s no legislation on this subject, you’re also telling me something I didn’t know.

W. B. Patterson:

I know —

Felix Frankfurter:

I thought you could tell me a lot of things I don’t know.

Charles E. Whittaker:

(Inaudible)

W. B. Patterson:

That in effect is what I do but it is not what I’m saying that you should do.

What I am saying is that Congress never intended the word act or omission to have a thing in the world to do with this particular problem.

Let me — let me read you Judge —

Charles E. Whittaker:

(Inaudible)

W. B. Patterson:

Yes, alright.

Judge, let me read you this — this one.

Here’s from the hearing on page 9 in this thing, “Where does the claimant file a suit?

The suit is to be brought in the District Court in several districts where the claimant resides — either where the claimant resides or in the locale of the injury or death.”

W. B. Patterson:

Now, that is in the hearings before Congress on that thing.

Charles E. Whittaker:

(Inaudible)

W. B. Patterson:

That’s true.

But I —

Charles E. Whittaker:

(Inaudible)

W. B. Patterson:

That — that’s true, Your Honor.

You are certainly right about it but I say that this does lend some credence to the argument.

That —

Felix Frankfurter:

Mr. Patterson, I agree with you entirely that Congress never concerned itself with this problem.

And the reason that I agree with you, with some familiarity with the legislative history of this business, is that they didn’t have to bother about it because they wanted to put the Government of the United States with reference to those categories of torts for which the Government was to held liable on the same footing as a private employer.

So, when they said — what they did say about the same manner and extent in the law of the place, they dealt with all the problems that were before them from the theory — on the basis of the theory from which this is the language that concludes the present time as my Brother Whittaker says germinated, is that right?

W. B. Patterson:

That’s right, Your Honor.

And —

Felix Frankfurter:

So, they never — all these lawyers thought all problems was in their mind because they didn’t have to be.

W. B. Patterson:

That — that is true, Your Honor.

And I agree with it thoroughly and I say that the only way that you can give effect to that is to make the Government liable in the same manner as a private individual would be.

Potter Stewart:

But that would have to meet out of the statutes some words that are now in it, wouldn’t it?

W. B. Patterson:

That’s correct, Your Honor.

They are in there for — I don’t think (Voice Overlap) but they’re in there.

Potter Stewart:

Yes.

W. B. Patterson:

But to me if —

William J. Brennan, Jr.:

Well, how do you ignore them?

I don’t quite follow.

W. B. Patterson:

I ignore them by saying that they say that the Government is to be liable to the same extent as a private individual would be.

To place — and I think that is what they meant to do, is to make the Government liable just like a private individual.

William J. Brennan, Jr.:

I know but it would carry that out just to (Voice Overlap)

W. B. Patterson:

Alright, a private — a private individual would be liable not for negligence under the place where it occurred or where the accident occurred.

William J. Brennan, Jr.:

I follow all that, but this all comes down so that we have to ignore these set of words.

W. B. Patterson:

Yes, you would.

Well, you wouldn’t have to ignore which you’d have to say that they had a different meaning from what they are (Inaudible) place of death.

William J. Brennan, Jr.:

You put them in lower case and not in (Voice Overlap)

W. B. Patterson:

In other words, Your Honor, I sort of believe what you can say or what I tell you that sort of argument but it’s not quite yet at large and when you reached the same result in any event.

Felix Frankfurter:

Mr. Patterson, enlighten me on this point.

If this suit was brought in Oklahoma, with this injury under a diversity of citizenship case, go on from there under litigation.

What — what would the District Court with the jury before him, what would be the governing principles of law?

W. B. Patterson:

Against the American Airlines?

Felix Frankfurter:

Yes.

In an Oklaho — suppose it was brought there, leave out the question of release and settlement in Missouri, let’s begin to assume in the — they assume they’ve got jurisdiction over you et cetera, et cetera and they satisfy the diversity of the requirement.

Go on from there.

W. B. Patterson:

You’re expecting over American Airlines alone?

Felix Frankfurter:

That’s right.

W. B. Patterson:

They would apply that law of the place — of the place where the death has occurred and the law of Missouri would be applicable as to American Airlines.

William O. Douglas:

Unless the — a federal act could supply a different standing.

W. B. Patterson:

Yes sir, but federal act doesn’t apply to American Airlines.

Tort Claims Act applies throughout the Government as I understand.

Felix Frankfurter:

Well then in — in this case — and in this case, if you are representing the Government, you would — you’d say the same thing because you would apply — and this case wouldn’t make any difference because the local law, the law of — if one reads the way the Government reads the section, the law of the place would be Oklahoma and Oklahoma would refer you to Missouri so you’d get the same result.

W. B. Patterson:

Same result.

Felix Frankfurter:

In this case.

W. B. Patterson:

In this case, that’s right.

And I think you’ll get that same result, Your Honor in about 48 or 49 (Voice Overlap)

John M. Harlan II:

Well, just a minute, you wouldn’t do that with the diversity rule surely because the Government would be — the Government’s liability would be based on diversity.

Felix Frankfurter:

No, no, you get it through (Voice Overlap)

John M. Harlan II:

You get it through the local law.

W. B. Patterson:

(Voice Overlap) I’m sorry if I did, that was —

Felix Frankfurter:

No, no, you didn’t.

No.

All I’m saying — I’ll put to you first the diversity and you — you stated what you said and (Voice Overlap)

W. B. Patterson:

The jurisdiction (Inaudible) gets me on diversity.

Felix Frankfurter:

Yes.

And if the Government (Voice Overlap) under the Federal Tort Act would reach the same result because that’s Oklahoma law if you read it the way the Government reads it.

W. B. Patterson:

That’s right.

Felix Frankfurter:

And what you’re saying is that as to 48 states should get the same result.

W. B. Patterson:

I think I’m probably correct in that.

Now, there has been some —

Felix Frankfurter:

And some —

W. B. Patterson:

— languages in some of their opinions where they say that minority view exists.

I — I just don’t find any of those cases that sustain any minority of view.

So — and as I say —

Potter Stewart:

But the point is — the point is that the under the common law, wherever the negligent act or omission occurred, wherever that occurred, you apply the law of the jurisdiction where the injury or death occurred is that right?

W. B. Patterson:

Or it became answerable where there was a tort.

There is no tort.

Potter Stewart:

In those cases, the — the jurisdiction is the same place.

W. B. Patterson:

That’s right.

Potter Stewart:

And this difference only arises where the negligent act occurs in one jurisdiction and the resulting injury or death in another jurisdiction.

W. B. Patterson:

That’s right.

Now, a great deal of talk has been here about the Eastern Air Lines case and in that connection I’m sure Your Honors are familiar that we don’t know what the majority of the Court held in the Eastern Air Lines case.

The dissenting judge —

William O. Douglas:

Well, they said that the — they thought that the federal act raised a different — a separate standard of liability.

W. B. Patterson:

No, they didn’t say that, Your Honor.

They held that.

They didn’t say anything.

The dissenting judge wrote the opinion in the Eastern Air Lines case.

William O. Douglas:

That’s right.

W. B. Patterson:

And he said that my brother has been indicated so and so and then he went on (Inaudible) they weren’t right.

So, as to what the majority of the Court in the Eastern Air Lines case, I actually thought by reason of taking it from the opinion, we can’t do that because there is no —

William O. Douglas:

Your — your view is substantially that of Judge Miller, I gather.

W. B. Patterson:

Oh, yes.

It is substantially that as Judge Miller.

It is exactly said by Judge Miller who wrote the opinion in the Eastern case.

The counsel has talked about certain limitations and conditions on the part of the Government, imposed by the Federal Tort Claims Act.

W. B. Patterson:

Well, certainly, there are these limitations or conditions.

But how in the world that the words ‘act or omission’ constitute a limitation or a restriction or how could it take anything from the Government or give it to a private indivi — I just — I cannot myself follow the logic in there.

In a particular case, if you interpret it the way they want to do it, it might be to the benefit of the plaintiff in one case and the Government in another.

In another state it might not be that this will be dependent on where he was.

So, I cannot see that those words place law of the place where the act or omission occurred, constitute any restriction or limitation on the Government’s liability.

They simply say that regarding — as the Government liable just like a private individual and we’re going to do that by applying the law of the State where the act or omission occurred.

I think that’s all.

Truman B. Rucker:

Few minutes I have left Mr. —

Earl Warren:

Yes, Mr. Rucker.

Truman B. Rucker:

— Chief Justice Warren, and may it please the Court.

The effect of the reasoning which they are trying to argue and enforce here is that the end result is that the law of the State where the accident occurred is going to be applied.

Now, whether you did or as it has been suggested by a rewording of the statute or otherwise, they are getting the same result when they bring into play the conflicts of law rule of the State of Oklahoma.

In other words, it is making meaningless these words “where the act or omission occurred”.

Now, then we get to involved in this situation as has been suggested that if these suits were commenced in Missouri, the Missouri law under their reasoning would look to the law of Oklahoma where the negligent act occurred.

And Oklahoma conflicts rule would apply the law of Missouri as to the place where the accident and death occurred.

Then we’re in to the renvoi theory and doctrine and that it was obviously the intent of Congress to avoid this statute of conflicts on conflicts which you do not have in the case of a normal private individual.

Basically, we’re down to the feeling in the statement as it was expressed in this Steal-in case that we should make Congress to respect of not assuming likely that it indulges in inconsistencies of speech which makes the English language meaningless.

In all respects, the Government didn’t expose themselves to the liability of a private individual and in the most basic or the fact, they did not give them the right of a trial to jury and eliminated many of the other rights that you have as individuals.

So, basically, if you follow their reason by applying the Oklahoma conflicts of law rule, then you’re for practical purposes, eliminating the words “the act or omission occurred” because you’re right back there.

We respectfully submit that the words were put in there for some reason and that it was a good reason and for that reason, they should be given full force and attack.

Thank you.