The opinion of the court was delivered by: RAYFIEL
The above-entitled actions were brought to recover damages for the wrongful death of the plaintiff's intestate. The suit against the United States of America was commenced under the Federal Tort Claims Act, Title 28 U.S.Code, § 2674, and under section 1346(b) of said title. The complaint herein alleges that the decedent, a member of the Aviation Writers Association, had been invited to ride as a guest on a demonstration flight of a plane known as a Lockheed F-94-B jet all weather interceptor, owned and controlled by the defendant, and operated during the course of his office and employment by one Lt. Col. Robert D. Curtiss, an officer of the United States Air Force; that due to the carelessness and negligence of the defendant, its agents, servants and employees, in the operation and maintenance of the plane, and in its failure to keep it in a proper and airworthy condition, certain parts of the plane broke, causing it to plunge into the waters of Long Island Sound, as a result of which the decedent sustained the injuries from which he died on June 15, 1951.
The complaint in the action against Lockheed Aircraft Corporation alleges, inter alia, that the defendant manufactured the aforementioned plane and sold it to the United States Air Force. After repeating, in substance, the allegations contained in the aforementioned complaint respecting the invitation to the decedent, the flight, the crash and his resultant death, the complaint avers that the said plane was an inherently dangerous instrumentality, due to the fact that the ejection mechanism of the seat occupied by the decedent was defective, in that it failed to eject him; and that the defendant Lockheed was careless and negligent in the manufacture, testing and inspection of the plane, by reason whereof the decedent sustained fatal injuries.
The Government denied the allegations of negligence and, as an affirmative defense, pleaded that the decedent, in consideration of the invitation to participate in the flight, executed and delivered to it an instrument under the terms of which he released the defendant from all claims on account of death or injury resulting from said flight. The defendant Lockheed likewise denied the allegations of negligence and pleaded, as an affirmative defense, that the decedent by executing the aforementioned 'release', assumed all the risks incident to the flight, and absolved Lockheed from any and all liability.
On July 27, 1955, an order was entered herein directing that the above-entitled actions be tried jointly.
Thereafter the Government moved under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for summary judgment in its favor, basing its right thereto on the aforementioned purported release. On November 7, 1955, Chief Judge Inch made an order denying the motion, and directing that a separate prior trial be held of the issues relating to the separate defense of 'release' raised by the Government. On December 27, 1955, pursuant to the oral application of the attorneys for Lockheed, made under Rule 42 of the Federal Rules of Civil Procedure, Judge Galston made an order directing that there be a joint trial solely of the issues raised by the defense of 'release' in the answers in both actions.
The trial was held on January 4, 1956. No oral evidence was presented. The Government introduced in evidence two documents. One (Exhibit No. 1) is the aforementioned purported release. It reads as follows:
'Release 'Mitchel AFB, New York 'June 15th 51 '(Date)
'Know All Men By These Presents:
'Whereas, I William S. Friedman, (Full Name) am about to take a flight or flights as a passenger in a certain air force aircraft on June 15, 1951: (Date or Dates) and whereas I am doing so entirely upon my own initiative, risk, and responsibility; now, therefore, in consideration of the permission extended to me through its' officers and agents by the United States to take such flight or flights, I do hereby, for myself, my heirs and executors and administrators, remise, release and forever discharge the Government of the United States and all of its' officers, agents and employees, acting officially or otherwise, for any and all claims, demands, actions, or causes of action, on account of my death or on (any) (account) of any any that may occur from any cause during said flight or flights or continuances thereof, as well as all ground and flight operations incident thereto.
"William S. Friedman
"Hugh A. Day,
Major "Alice Friedman
(Name of person to
be notified in
(Witness) "34-15 -12th St.
(Address of same)'
(Brackets around words 'any' and 'account' and underscoring of phrase 'of any any' added.)
The other (Exh. No. 2) is a document called Army Regulation No. 95-20, Air Force Regulation No. 76-6, which became effective on August 23, 1949. The pertinent parts of the regulation are sections 8, 8(a) and 11, which read as follows:
'8. Delegation of authority. -- The transportation of individuals in the categories indicated in a and b below is determined to be on matters of concern to the armed forces, and the following commanders are authorized to permit these individuals to travel in military aircraft on a non-reimbursable basis:
'a. Accredited representatives of informational media (i.e., press, radio, news, etc.) on assignments to cover National Military Establishment activities. (In addition, these representatives may be furnished transportation in the event of spot news stories of transcendent national interest for which commercial or charter facilities cannot be obtained.)
'11. Release from claim for injury or death. -- Personnel specified in paragraphs 4K, 5c, and 8a will be required to sign the release form specified below, unless otherwise exempted when physically or mentally unable or in ...