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ROGOW v. UNITED STATES

May 25, 1959

Mildred Gottlieb ROGOW, as Executrix of the Last Will and Testament of Leon Rogow, deceased, also known as Lee Rogow, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: KAUFMAN

The plaintiff, Mildred Rogow, widow of Leon Rogow, and executrix of his last will and testament, brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., to recover for the wrongful death of her husband. The case was tried to me without a jury.

Mr. Rogow, a free lance writer, was killed instantly when on September 13, 1955, an Air Force B-25 bomber, on which he was a passenger, crashed near Mitchel Air Force Base, Long Island, New York. The twin-engined aircraft had left Mitchel Field four minutes before the crash on a flight to Wright-Patterson Air Force Base, Dayton, Ohio. A few moments after take-off the pilot reported that 'we got one bad engine here.' He stated that he was feathering *fn1" his right engine and returning to base.

The plane's left engine failed to maintain sufficient power to keep the B-25 aloft and the craft dove into the ground, killing all aboard. *fn2"

 It is plaintiff's contention that her husband's death was caused by the negligence of Air Force personnel in maintaining and/or operating the plane. *fn3"

 The Release

 The plaintiff is met at the outset with the government's contention that her claim is barred by a release *fn4" signed by Mr. Rogow just before he embarked on the flight. This document purports to absolve the defendant from liability for its own negligence.

 Initially, we must examine Rogow's relationship with the Air Force, and the circumstances which led to his being aboard the aircraft, in order to determine the validity of the release.

 At the time of his death, Mr. Rogow was engaged in gathering material for the preparation by him of a script for a documentary Air Force recruiting film dealing with various phases of Air Force training. The plan for such a recruiting film was conceived by the Air Force officers charged with the responsibility for recruiting. (Tr. 56.) In accordance with its usual procedures in the production of such a film, the Air Force's need was communicated to the advertising agency of Ruthrauff & Ryan, who were the prime contractors for projects of this kind. The agency, in turn, obtained the services of Mr. Rogow, as script writer, through United World Films, Inc., a firm specializing in commercial film production. (Tr. 110.) Discussions were then held between Rogow and Air Force officers concerning the most effective method of carrying out the project. It was decided that in order for him to properly prepare the script, it was essential for Rogow to visit various Air Force training centers to obtain familiarity with and an understanding of the subject matter of the proposed film (Tr. 20.) At the suggestion of the Air Force, it was agreed that most of these trips from base to base would be made by military aircraft. *fn5" Also at the suggestion of the Air Force, the first stop on Mr. Rogow's itinerary was to have been Wright-Patterson Air Force Base, where he was to have conferred with the officers responsible for the Air Forces' recruiting program. (Tr. 22, 40.) From Dayton he was to proceed to other bases by military aircraft. The original schedule called for Mr. Rogow to leave for Dayton on September 12th by commercial airline. Pursuant to the arrangement among the defendant, th prime contractor and the decedent, the defendant would have reimbursed him for his travel charges.

 At the suggestion of Lt. Col. Coenen, an executive officer of the Air Force, these plans for commercial air travel were changed and Mr. Rogow instead embarked on the illfated Air Force flight. (Tr. 26, 42 et seq.) *fn6" The change involved no monetary saving for decedent since the government was already obligated to reimburse him through its prime contractor for his travel charges. (Tr. 37-38.)

 At his last meeting with the Air Force officers before the flight, Mr. Rogow was informed that he would be required to sign a release. The release was actually presented to Rogow and signed by him shortly before embarkation. This document purports to release the defendant, its officers and employees from any liability for death or injury resulting from the flight. *fn7"

 The Validity of the Release

 The government's contention that this release bars any recovery was considered by another judge of this court on defendant's motion for summary judgment. At that time, the plaintiff urged that the release was unenforceable because it was against the public policy of New York State. Plaintiff urged that the New York courts had consistently refused to give effect to releases of this kind where the injured plaintiff had not received a gratuitous benefit from the defendant, such as a free pass. Defendant has stated (p. 29 Defendant's Trial Memo) that this motion was denied in an oral decision 'on the ground that on the release matter a question of fact existed with respect to the 'gratuitous' nature of the services provided decedent by the Air Force in making available to him a military flight * * *.'

 The defendant contends that the services provided by the Air Force were gratuitous. Defendant also vigorously disputes the correctness of the ruling that the gratuitous nature of the ride is crucial to the validity of the release. It is defendant's position that the release is valid regardless of whether or not the flight was a gratuitous benefit conferred by the Air Force. An examination of the New York authorities applicable to this area of the law demonstrates that defendant is in error. It is true that releases have been upheld where the defendant had conferred a gratuitous benefit on the plaintiff either in the form of a free pass or a reduced fare ticket. See e.g. Anderson v. Erie Railroad Co., 1918, 223 N.Y. 277, 119 N.E. 557; Montalbano v. New York Cent. Railroad Co., 4th Dept.1944, 267 App.Div. 617, 47 N.Y.S.2d 877. But the courts have emphasized that a crucial question in such cases is whether or not the transportation was provided gratuitously. The release here involved is clearly against the public policy of New York unless the plane ride can be characterized as a gift from the Air Force to Mr. Rogow.

 Agreements purporting to release a party from liability are not favored by the New York courts. In Johnson v. Fargo, 4th Dept.1904, 98 App.Div. 436, 90 N.Y.S. 725, at page 730, affirmed 1906, 184 N.Y. 379, 77 N.E. 388, 7 L.R.A., N.S., 537, such a release was found to be against public policy, the Court stating:

 'The general principle that contracts breaking down common-law liability and relieving persons from just penalties for their negligent and improper conduct are not to be favored. * * *' Cf. Boll v. Sharp & Dohme, Inc., 1st Dept.1953, 281 App.Div. 568, 121 N.Y.S.2d 20, affirmed 1954, 307 N.Y. 646, 120 N.E.2d 836; Kearns v. City of Buffalo, 1952, 202 Misc. 619, 111 N.Y.S.2d 778, 781.

 The rationale behind the numerous decisions invalidating releases of the kind involved here is based upon the policy of encouraging the exercise of care. The courts seek, also, to protect individuals from the effects of agreements which are rarely considered by the signer with the thoughtfulness and care appropriate to the catastrophic consequences which may result to him and his family. Where the plaintiff has either paid full fare for his passage or where a pass has been issued as part of a contract of employment, releases have not been upheld. Thus, in Montalbano, supra, 47 N.Y.S.2d at page 880, the court said:

 'If the pass issued to him was part of his contract of employment, and not a mere gratuity, the defendant could not relieve itself from negligence by so providing in the pass. Section 64, Article 3, Railroad Law. If his pass a mere gratuity, the reverse would be true.'

 Similarly in Kroehling v. City of New York, 2d Dept.1946, 270 App.Div. 909, 61 N.Y.S.2d 474, at page 475, it was said:

 'Upon the trial defendant conceded that the accident was due to its negligence but claimed immunity from liability by virtue of the provisions of the pass. The Trial Court submitted to the jury, as a question of fact, whether the pass was received by the plaintiff as a mere gratuity or as a part of his contract of employment. The jury found in favor of the plaintiff * * *. The case was properly submitted to the jury * * *.'

 Again in Anderson v. Erie Railroad Co. supra, it was stated by the court:

 'It is not necessary to the validity and effectiveness of the contract of release that the passenger be carried free of all charge, but it is sufficient that a valid reduction of fare satisfactory to the passenger be agreed upon.' 3rd Dept.1916, 171 App.Div. 687, 157 N.Y.S. 740, at page 744, affirmed 1918, 223 N.Y. 277, 119 N.E. 557.

 In Vroom v. New York Cent. & H.R.R. Co., 4th Dept.1909, 129 App.Div. 858, 115 N.Y.S. 1063, 1065, affirmed 1910, 197 N.Y. 588, 91 N.E. 1121, the release was found to be unenforceable, the court saying:

 'But, even if that relation did not exist at the time of the accident, we think under the circumstances of this case it could well be found that the pass was not a mere gratuity, but a part of the contract of employment, entitling the deceased to transportation to and from his work.'

 Conklin v. Canadian-Colonial Airways, Inc., 1935, 266 N.Y. 244, 248, 194 N.E. 692, 693, is even closer in point. There the plaintiff's decedent had been killed in the crash of an airliner. The defendant attempted to assert the validity of a release citing such cases as Anderson v. Erie ...


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