407 F2d 849 Hall v. United States

407 F.2d 849

Gene Owens HALL, Sr., et ux., Appellants,
UNITED STATES of America, Appellee.

No. 22253.

United States Court of Appeals Ninth Circuit.

February 25, 1969.

H. L. McChesney, (argued) of Goldman & McChesney, Missoula, Mont., for appellants.

Robert O'Leary, (argued), Asst. U. S. Atty., Moody Brickett, U. S. Atty., Butte, Mont., for appellee.

Before MADDEN,* Judge of the United States Court of Claims, and BROWNING and DUNIWAY, Circuit Judges.


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On the night of July 24, 1963, a car driven by appellant Gene Hall collided with an Air Force tractor-trailer on Montana Highway 20. Mr. Hall sued for damages under the Federal Torts Claims Act, 28 U.S.C.A. § 1346(b), claiming negligence on the part of the Air Force driver. His wife sought damages for loss of consortium.


The district court found that the Air Force driver was negligent in obstructing the highway, but not wantonly or grossly so; and that Mr. Hall was negligent in driving at 45 to 50 miles an hour when his "visibility was limited either by defective lights or a failure to look." Mr. Hall was therefore denied recovery. Mrs. Hall's claim was also denied because, under the court's view of Montana law, the contributory negligence of the husband barred recovery by the wife for loss of consortium.


Appellants challenge the district court's findings of fact. After considering the record as a whole, we are satisfied that the findings are not "clearly erroneous." Fed.R.Civ.P. 52(a).


Mrs. Hall also contends that the district court erred in its interpretation of the Montana law as to whether a wife's claim for loss of consortium is barred by the husband's contributory negligence. A district court is better able than we to predict the way in which the courts of the state in which it sits would decide such a question of state law. We therefore accept the district court's determination unless it appears to us to be clearly wrong. Owens v. White, 380 F.2d 310, 315 (9th Cir. 1967); Minnesota Mut. Life Ins. Co. v. Lawson, 377 F.2d 525 (9th Cir. 1967). In this case it does not.





Honorable J. Warren Madden, sitting by designation