On April 21,1958, near Las Vegas, Nevada, there was a mid-air collision between an airplane owned and operated by the United States of America and a passenger plane owned and operated by United Air Lines, herein referred to as United. All persons in each airplane were killed in the collision. Twenty-three actions for damages against United and the United States were filed in the United States District Court for the Southern District of California, Central Division, by the heirs or personal representatives of the persons killed in the collision.

After the twenty-three cases were at issue, the United States made a motion in the district court asking that all cases be consolidated on the issue of liability only. At a hearing upon this motion United indicated that it did not object to consolidation on the issue of liability, as long as this consolidation did not mean that the issue of damages would be tried before a different jury in the event that United was found to be liable. An order was submitted by the United States providing for the ' consolidation, but this proposed order was silent concerning whether the same jury would determine the issue of damages if that issue should be reached. United then filed its own motion, asking that in the event the cases were consolidated for any purpose they be consolidated for trial on all issues before the same jury. After a further hearing the district court signed an order which provided inter alia as follows:

Included in the court’s order was the following statement:

After obtaining permission to do so, United timely appealed to this court from the above order.

Jurisdiction in the district court against United is based upon diversity of citizenship, 28 U.S.C.A. § 1332 , and against the United States of America upon the Federal Tort Claims Act, 28 U.S.C.A. § 1346 (b). Jurisdiction in this court is based upon 28 U.S.C.A. § 1292 (b).

The appellees contend that the order of the district court is proper under rule 42(b) of the Fed.Rules Civ.Proc., 28 U.S.C.A. which reads as follows:

The appellant points out that there are no express words in this rule permitting separate trials before separate juries on separate issues, and asserts that the procedure the rule contemplates is the completion of the trial upon a particular issue prior to the trial of another issue by the same trier of fact. It then contends that if the rule is given the interpretation advocated by the appellees, it is violative of the Seventh Amendment to the Constitution of the United States. Appellant contends that the right to a trial by jury as guaranteed by the Seventh Amendment has been held to mean “the right to trial by jury as it existed by common law at the time of the adoption of the Seventh Amendment” and cites Dimick v. Schiedt, 1935, 293 U.S. 474 , 55 S.Ct. 296 , 79 L.Ed. 603 , as authority for its position. It asserts that the procedure of having trials of separate issues in the same case by separate juries was not known to the common law.

We have been cited no case by either appellant or appellees which either approves or disapproves the exact procedure provided for in the order of the district court. Each party refers to Gasoline Products Co., Inc. v. Champlin Refining Co., 1931, 283 U.S. 494 , 51 S.Ct. 513 , 75 L.Ed. 1188 , contending that either the language or the holding of that case lends support to his contention. In that case, after a trial in the district court of a contract action, the Court of Appeals for the First Circuit, 39 F.2d 521 , reversed the judgment because of errors in the charge of the trial court with respect to the measure of damages on the counterclaim. But in reversing, the court restricted the new trial to the determination of damages only. The Supreme Court granted certiorari to review the single question of whether the court of appeals erred in thus limiting the new trial. The Court discussed the provisions of the Seventh Amendment and stated:

After discussing modification of this rule in certain states, the Court said:

The Court, however, then went on to consider the facts of the particular case, and stated:

A consideration of the issues in the instant cases reveals a similar situation. An examination of the claims made in each of the twenty-three complaints shows the following facts. Each complaint alleges that both United and the United States of America were negligent. In five of the cases United is charged with recklessness in addition to the usual charge of negligence and carelessness. In three of the cases the plaintiffs demand exemplary damages. In eight of the cases sections of the Nevada Revised Statutes that provide for exemplary damages are set out in the complaints. All of the other cases refer to one or the other of the Nevada statutes which have the exemplary damage provisions. In each of the answers filed by United the ownership and operation of the plane and the collision and the death of the decedent in question is admitted. In all except one it was admitted that the decedent was a passenger for hire. All denied the allegations of negligence, carelessness, recklessness, wantonness, or willfulness.

It is apparent that where parties are asking for exemplary damages which depend upon the degree of culpability of the defendant, they are required to establish by their evidence their contentions as to the degree of negligence. Likewise, the defendant is entitled to show all of the facts surrounding the collision in order to establish, if he can, first, that there was no negligence and second, that even if there was negligence there was no willfulness or wantonness or extreme recklessness.

We do not say that in no circumstances can a separate jury determine the issue of damages after another jury has determined the issue of liability, for we do not reach that question in this case. As was said in a recent case from the Seventh Circuit, “Whether a party is deprived of a jury trial as contemplated by the Seventh Amendment when some of the issues are submitted to one jury and other issues to a second jury, is a more difficult question to resolve.” Hosie v. Chicago & Northwestern Ry., 7 Cir., 1960, 282 F.2d 639, 642 . We do hold that under the circumstances presented by this appeal the issues of liability and damages, exemplary or normal, are not so distinct and separable that a separate trial of the damage issues may be had without injustice. The question of damages is so interwoven with that of liability that the former cannot be submitted to the jury independently of the latter without confusion and uncertainty which would amount to a denial of a fair trial. Gasoline Products Co., Inc. v. Champlin Refining Co., supra.

The order of the district court is reversed.

. “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” . 283 U.S. at page 497, 51 S.Ct. at page 514. . 283 U.S. at page 498, 51 S.Ct. at page 514. . Id. at pago 499, 51 S.Ct. at page 515. . Ibid. . Id. at page 500, 51 S.Ct. at page 515. . In one action -where there is a mere allegation of negligence counsel apparently believes that exemplary damages may •be recovered because they are demanded in the prayer without any allegation as to United’s conduct other than negligence and carelessness.