Petition for Writ of Certiorari — Lincoln National Life Insurance v. Roosth
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: Otic Supreme Court, U.S,
; STU, FILED |
| DEC 26. 1982
a ae e bre
IN THE
‘
*. -
Supreme Court of the United States
OCTOBER TERM, 1962
no. 694 '
=
~~
NorrHeast AIRLINES, INC.,
Potitione r,
—against—
Marityn W. PEARSON, as Administratrix of the Goods,
Chattels and Credits of JoHNn S. PEARSON, deceased,
Son Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ee
=
e Wu1iaM J. JUNKERMAN
Counsel for Petitioner
Sv Broad Street,
New York 4, N.Y.
INDEX
o . &:
-
a PAGE
——§|§|titmions to Opinions Below 2. ......--...555- cee cae
Basis of Jurisdiction .............---- Corey: hy ree 2
Questions: Presented ..6....5. 606. e eee eee tenes ee
Constitutional Provisions. ast Statutes Involved .... :
eee ae Se eee MRR Po Os Read aN KS )
Reasous for Granting, the ert vatiserians a.
The question presenicd is a novel one, involving
issues of Constitutional law which have hever
been passed upom. by this Court, and to which
(until now) the answer had been assumed to be
_direetly contrary to the answer given by the court
ce See ee See eee PE re ee iD
The question presented is an Important ane which
has been or will be presented in every case where
one stiie is required to apply the laws of another
Oe PPO TET ETRE CARE OL Tey eeT TET ake, » Is
The decision below hus resolved contlicts between
the policies of two states, and between the poltey
of the United States Constitution and the local
policy of New York, in a manner which cannot be
supported .. 5.55555: Dna CE ERE EMCRU AS RUN SD I
Samplei@ .... 6. css 8) PET TOL ERE TE eee eae = 49
t
>» e il ¢
fe a
Appendix A- ” Ssisar—
Distret Court Opinion Denying Limitations and .
Ihivected Verdict for Plaintiff. (199 F. Supp.
ms nays EE ee OE EE TOE Te OE eR TET. \-1
District Coutt Opinion Denying Motion for Jddg-
ment MOV. or for NeW Trial (201 F. Sup).
45). “oy oe ee ee ee a oe ee ee ne bee oe eee Ok A -De
Opinion of Original Panel of Court of Appeals
(S00. F.2d 132) ......: etaanns amet eae a [A-9
Dissenting Opinion of Original Panel of Court of
Appeals ..... ere ee Bre MiG ro rer Pee eee \-20.
Opinion of Court of Appeals En Bane oo. ...... \-43
Dissenting Opinion of Court of Appeal& En. .
Bane ..... Pat ite a eon eee MES ey eer er \-63 7
/ - os | % . e
/ Appendix B “ o
New York Court ef Appeals ®pinion in, Ailberg
: v. Northeast Atrlines, 9 N.Y 2d 34 200... B-1
Concurring Opinion per Fuld, J. in Rilberg vs °
Northeast Atrlines ..... eer tery. Peelag ee
a oncurring Opinjon per Froessel, J. in Ailberg
Ti. OPERONS BCUNEE os ois es win es eee nck sus
New York Court of Appeals Opinion in Daren-
port v. Webb, 11 .N.¥.2d 302 :....... ica ..B-21
Concurring -and Dissenting Opinions in) Daren. - <
UE MMI. 2 aac cen vc bk eek t Kakieeey geen , B23.
we ‘ ”
\
("ASE
Bagleyv, Small, 92 N.H. 107, 96 A. 2d 23 (1942) 2.6. 10
Barnes v. Union Pac. Ry, Co., 199 F. Supp. 198 (D.
Dink: 2906). .. 4.55; JG pee nN PLN rey ee eee ys 10
Caldwell v. Abertiathy, 221 N.Ce 692. 98 S. Be2d 765
POUNOR ones renee cos Op errr ee 10
Cartis ve Campbell 76 i 2c: ad (ord ©] ir. 1935 iy kate 10
Davenport ve Webb, Vb N.Y.2d S82, 15 N.B.2d 902
Ry ee ee pee ee eon
* Goranson v. Kloeb, 308 F.2d 655 (6th Cir. 1963) .... 14
r >
Hughes vy. Fetter, 541 U.S, 609 (18 ~ 8 peers ee 16
Kilberaq gvortheast Airlines, Ine., 9 XN N.Y.2d 34,
BCE i Se BOG (UGGS) 6 oO. cakes 3,7, 8, 9, 10, 11,
s 78 42, 13, 14, 15, 16, 18
Maynard v. Eastern Air Lines, Ine., 178 F ed 139 (2d ¢
he, FD ao cc eck eee oh o's chs eo Perry rere ree S 10
Popkin v. Eastern Avr Lines, Tnc., 204 F. Supp. 426 —
(EB. Pa, F962) 2. on. eee cet tce ee ek eh sees 3 13
Richards v. United States, Zao Fld age (10th ¢
1960), aff'd 369 U.S. 1 (1962) ah ee eee 10, ti, ig.
Stoltz v. Burlington, 178 F.2d 014 (10th Cir. 1949) .2° 10
Tillinghast v. Maggs. § ? R.IT. 428, 111 A. 26713 (1955) 10
Trauth v Northeast Histiacs . Inc., Civ. No. 142-256
(SDNY SORES fon sa Prens ee Be ia Grit ccs eat Prue
Wellman v. Mead. 93 Vt. 322, 107 A. 396 (3909).
a sf vy a
“ a is
fl
uu NS en
3
IV
Oruer AUTHORITIES
PAGE
United States Constitution
Article IV, Section 1 ......-.-. 9 3,10, 11, 15, 16, 18, 19°
Article IV, Section 2 ..........2 eee eee renee 18
Amendment XIV, Section 1 ......---+--+555> a
— United States Statutes
SE | a ee wae 2
MME OM Ai aa ceca xat nes cs 2, 4,15, 18
* State Statutes,
Massachusetts General Laws, Ter. ed., Chapter
229, section Zo l......6-- pore ee Pee 3,5, 6, 17
Miscellaneous -
Commonwealth of Massachusetts, General Court
of 1962, Bulletin of Committee Work and Busi-
ness of the Legislature, (Final Ed., 1962 Sess.) 17
Mass. Judicial Council, 37th Report (1961) sy ae
eo a
State of New York,
% Ass. Int. 3512, Pr: No. 8 |) a ae 16
Bon. test. 1997 (ABG1):- ow cen ce cee ce ewes 16
Ass. Int. 372, Pr. No. 372 (1962) .....---.55; 16
Sen. Int. 51, Pr. No. 51 (1962) ....-..---555: 16
The New York Times, November 9, 1962 ........ ~ 45
, INTHE... ; |
Supreme Court of the United States
| OCTOBER TERM, 1962
No.
>.
—
NorTHEAST. AIRLINES, INC.,
Petitioner,
—against—
é 5 ‘ee ae '
Martyn W. Pearson, as Administratrix of the Goues,
Chattels and Credits of Joun S. PEARSON, deceased,
“= « ‘ Respondent.:
‘%
P a
—_
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
To the Hoyorable, the Chief Justice and the Associate
Justices of the Supreme Court. of the United: -
States: © ; is ie
* The above-named petitioner respectfully prays for
issuance of a writ of certiorari to review the judg-
ment of the United States Court of Appeals for the
Second Cireuit, entered herein November 8, 1962,
affirming en bane, with three judges dissenting, the
judgment of the United States District Court for the
Southern District of New York entered on November
», 1961, after said judgment had previously been
reversed and the cause remanded on July 11, 1962, by
the original panel of the court that heard said appeal.
5 2
Citations to Opinions Below
The opinion of the District Court (AeGohey, J.)
’ denying defendant’s motion to limit recovery to
$15,000, the maximum, amount permitted under the
Massachusetts wrongful death statute (R. 98a-96a),
also printed in Appendix A hereto, infrs, p. A-1, is
reported in 199 F.Supp. 939 (S.D.N.Y. 1961).
The opinion of the District Court denying defend-
ant’s motion for judgment non obstante veredicto or
for a new trial (R. 163a-166a), also printed in Appen-
dix A hereto, infra, p. A-4, is reported " 201 F.Supp.
45 (S.D.N.Y. 1961)..
The opinion of the original panel of \the Court of
Appeals (R. 53b-85b), also printed in Appendix A _
- hereto, infra, p. A-9, is reported in 307 F.2d 131 (2d
Cir. 1962).
The opinion of-the Court of Appeals upon the re-
hearing en bance, (R. 148b-177b), is not yet officially
reported but is printed in Appendix A hereto, infra,
p. A-43. ‘ a
Basis of Jurisdiction \
The jurisdiction of this Court is invoked tinder 28
U.S.C, § 12541).
_ Questions Presented
3 \
1. Whether the Full Faith and Credit Clause of
the United States Constitution (Art. IV, see. 1) and
its implementing statute (28 U.S.C. $1738) permit a
Federal Court sitting in New York and trying a case
e
2
arising under the Wrongful Death Act of *Massachu-
setts (Mass. General Laws, Chapter 229, see, 2) ot
refuse to enfor@ those provisions of the Massachu-
setts statute relating to the measure and Hmitation of
damages. .
® Whether in ertering a judgment against the
defendant in excess of $160,000, based upon the pecu-
niary loss to the dependents, unde? the same Massa-
chusetts statute, which provided that the defendant
shall be liable in damages in the sum of not less,
than two thousand nor more than fifteen thousand del-
lars, to be asSessed with reference to the degree of:
‘culpability’ of the defendant,’ the Distriet Court has
o
not deprived the defendant of property without due
process of law.
3% 3 Bes Mas
Constitutional Provisions and Statutes Involved .
The provisions of the United States Constitution iM-
volved are: ‘
Article IV, Seetion 1:
® “Pull Faith and Credit shall be given in cach
State to the public Acts, Records, and Judicial
* The following question, while not directly presented by this
case. is also raised by the New York Court of Appeals decision in
Kilberg v. Northeast Airlines, Inc. 9 N.Y 2d 34 (1961), upon which
the decision of the Court below was based :
(3) Whether the New York, rule, whieh permits unlimited
recovery for citizens of New York suing under a ‘foreign wrens
ful death statute embodying a limitation on liabilitw, while
denying that advantage to citivens of other states suing in the
courts of New York, abridges the privileges and inamunities of
those non-citizens so discriminated against. © ~ .
2 : 4s
4 ,
Proceedings of every other State. And the Con-
gress may by general Laws prescribe the Manner
in which such Acts, Records and Proceedings
shali be proved, and the Effect thereof.”’
Article IV, Section 2:
“The citizens of each State shall be entitled to
all Privileges and Immunities of Citizens in the
several States.”’ }
Amendment XIV, Section 1:
_* * * No State shall make or enforce any law
which shall abridge the privileges or inamunities
of citizens of the United States; nor shall any
State deprive any person of life, liberty, Ar prop-
erty, without due process of law; nor deny to
any person within-its jurisdiction the equal pro-
‘tection of the laws.”’
The statutory provisions involved are:
28 US.C. 9 1738:
“The Acts of the legislature of any State, Ter-
ritory, or Possession of the United States, or .
copies thereof, shall be authenticated by affixing
the seal of such State, Territory or Possession
thereto. |
* * * *
Such Acts, reeordscand judicial proceedings or
copies thereof, so authenticated, shall have the
came full faith and credit in every court within
the United States and its Territories and Posses-
sions as they have by law or usage in the Courts
of such State, Territory or Possession from which
they are taken.” |
Massachusetts General Laws, Ter. ed., Chapter 229,
section 2:
‘‘Damages for death by negligence of common
varrier. If the proprietor of a common earrier of
passengers, except a railroad corporation or street
‘ailway or electric railroad eompany, by reason of
his or its negligence or wilful, wanton or reckless
act, or by reason of the unfitness or gross negli-
gence or carelessness, or the wilful, wanton or
reckless act, of his or its servants or agents,
causes the death of a passenger, he or it shall he
fiable in damages in the sum of-not less than two
thousand nor more than fifteen thousand dollars
to. be assessed with reference to the degree of cul-
» pability of the defendant or of lis or its servants
or agents, and recovered and distributed as pro-
vided in section one, and to the use of the persoris
and in the proportions, therein snecified.””
Statement
John S. Pearson, a resident of New York, was
killed in an airplane aecident involving an aireratt
owned and operated by Northeast Airlines, [ne.. on
Nantucket Island, Massachusetts.on Angust 15, 1955.
Mr. Pearson bought his ticket in New York.
Thereafter, his widow and adiministratrix, Marilyn
W. Pearson, commenced this action against Northeast
Airlines, Ine., in the United States District Court for
the Southern District of New York to Recover dam-
ages for the death... ,
The original complaint (aR. 4a-8a) contained seven
causes of action. ©The third, fourth, fifth and sixth
mauses were disinissed by Weinteld. J.. on defendant's
y
6’
motion (with an opinion which is reported in 180
F.Supp. 97 (S.D.N.Y. 1960)), and they are not in-
volved in the present proceeding. The second cause
of action was dismissed on defendant's motion at the
close of plaintiff’s case (R. 87a-88a), and it also is
not involved here. The seventh cause of action, for
loss of baggage and personal property, was disposed
of at the trial when the defendant's motion for a di-
rected verdict in plaintiff’s favor inthe amount of
£100 was granted (R. 90a)..
The only cause of action involved here, therefore,
is the first. In that cause of action, it was pleaded
(Para. Sixteenth, R. 6a-Ta):
“That thiso action is commenced under and
by virtue of the provisions of Chapter 229, See-
tion 2, et seq. of the Massachusetts General Law,
Ter. Ed., as they were in effeet on the 15th day
of August, 1958, and plaintiff claims the benefit
of the above referred statute.”
The Massachusetts statute, which is quoted above,
provided that for the death of a passenger caused by
the negligence or by the wilful, wanton or reckless.
act of a common carrier or its servants or agents,
“* * * it shall be liable in damages in the sum
of not less than two thousand nor more than fif-
teen: thousand dollars, to be assessed with refer-
ence to the degree of culpability of the defend-
aut or of his or its servants or agents.”
At the close of plaintiff's case and at the close of the
entire ease defendant moved to dismiss all claims
for damages for wrongful death in exeess of $15,000
and fora @irected verdict in plaintiff’s favor in the
sum of $15,000 (R. 89a-91a, 99a-100a). In denying
7 —
<
defendant’s motions, to limit the damage for wrong-
ful death to $15,000 as provided by the Massachusetts
statute. Judge MeGohey ruled that he was bound by
the dietum of the majority of the New York Court
of Appeals in the case of Kilbery vy. Northeast: Atr-
lines, Inc., 9 N.Y. 2d 34 (1961), to the effect that
the Massachtixétts limitation would not be enforced
by the New York courts against New York domil-
‘eiliaries. Judge MeGohey also ruled that the dam-
ages should be measured not by the Massachusetts
standard ‘ef ‘** * * the degree of culpability of the
defendant’? but “* * * by New York’s standard of
the pecuniary damage resulting to the beneficiaries
from the death.’’? The judge conceded that the lat-
ter point had not been considered by the New York
Court of Appeals in Kilberg, but stated that in the
light of the Ki/berg opinion, it was his epinion that
the New York courts would so rule (R. 95a).
¢
On November 16, 1961, the jury brought in a verdict
of $133,943.77 CR. 143a) and to this amount was added
the sum of $100 for loss of baggage. and $26,160.88
for prejudgment interest under, New York’s Decedent
Estate Law from Augusi 15, 1958, to November 16,
1961, making a total judgment of $160,204.65 (RR.
145a). Judge MeGohey denied defendant’s motion
for judgment non obstante veredicto or for a new
trial, in a memorandum decision and order dated
December 15, 1961 CR. 163a-166a ).
On July 11, 1962, the court below, in an opinion
written by the Honorabie Thomas W. Swan and
eoneurred in by the Honorable J. Edward Lumbard,
Chief Judge, reversed the judgment of the Dist rict
8
Court and remanded the case for entry of judgment
in favor of the plaintiff for $15,000 with prejudg-
ment interest to be computed in accordance with
Massachusetts law, from the date of the writ to the
date of the entry of judgment rather than from the
date of decedent’s death to the date of the judgment
(R. 53b, Appendix A infra, p. A-9). Subsequently,
_ plaintiff-appellee filed an ex parte petition for a
_ rehearing en bane (R. 98b) which was granted by
the court below with three judges dissenting on Sep-
tember 13, 1952 (R. 144b). On November 8, 1962,
the court handed down its decision on the rehearing
en bane in which it vacated the judgment of July 11,
21962 (R. 178b) and affirmed the judgment of the
District Court as reduced by the modification of the
interest award, with three judges dissenting (R. 180b).
Judge Kaufman wrote the majority opinion which
was coneurred in by Judges Clark, Waterman, Smith,
Hays, and Marshall. Judge Friendly wrote the dis-
senting opinion in which Chief Judge Lumbard and
Judge Moore joined (R. 148a, Appendix A infra?
p. A-43).
Reasons for Granting the Writ
The opinion of the Court of Appeals for the Second
Circuit en bane has decided questions of constitutional
law involving the Full Faith and Credit and Due
Process Clauses of the Constitution which have never
been ruled upon by this Court, and to which the an-
swers (before the decisions in this case and in the
ease of Kilberg ¥. Northeast Airlines, Inc.,9 N.Y.2d 34
(1961)) had apparently been.assumed by both bench
and bar to be directly contrary to the decision of the
oa
oO
9
Court of Appeals. The questions are of vital im-
portance to the proper administration of justice in
all cases in which the courts of one state are called
upon to apply the statutes of another state. And,
finally, they are of importance not only to the courts,
but also to the legislatures of the several states. .
The Court of Appeals has decided in this case,
over the dissents of Chief Judge Lumbard and Cir-
cuit Judges Swan, Friendly, and Moore, that neither
the Full Faith and Credit Clause nor the Due Process
Clause of the United States Constitution prevents a
state court (or a federal court sitting in the state in
a diversity action), when applying a wrongful death
statute of a sister state, fromerefusing to enforce cer-
tain integral provisions ofthe applicable statute
which are distasteful to the patiey of the forum
state. :
In so deciding, the Court of Appeals followed the
dictum of the New York Court of Appeals in Ki/berg
v. Northeast Airlines, Ine., supra (printed in Appen-
dix B infra, p. B-1), which bad been declared uncon-
stitutional by the original panel (Appendix A infra,
p. A-9). It is important to note that no question is
here involved-of. the constitutionality of applying the
New Vork Wrongful Death Statute, since the New
York court held in Ai/berg that the statute had no
extraterritorial effect (Appendix B infra, p. B-2, 3,5).
It is also important to note that the refusal of the
New York courts to apply the Massachusetts damage
‘limitation was not based on any theory that the limita-
tion is ‘procedural’ rather than substantive. In
Davenport v. Webb, 11 N.Y. 26 392 (1962), (printed
10
in Appendix B infra, p. 6-21), the New York Court
of Appeals, clarifying certain language in Ailberg,
made it clear,that the decision in that case was based
entirely on policy grounds.
The question presented is a novel one, involving issues
of Constitutional law which have never been
passed upon by this Court, and to which (until
now) the answer had been assumed to be directly
contrary to the answer given by the court below.
In the four separate opinions written in the Court
of Appeals, not one case has been vited in which this
Court, or auy other court, has sanetioned such a seg-
mentation of a statute of a sister state under the Fall
Faith and Credit Clause. <A reading of the cases
which touch upon the subjeet indicates quite clearly
that, unti! now, it had beeu assumed without question
that if a state court applies a foreign statute it must
apply the provisions of that statute relating to meas-
ure and limitation of damages.’ Even in the Ailberg
- case, which was the genesis-of the new rule-in New
York, no argument was made by any party that
New York could ignore the limitation of the Massa-
chusetts statute: the rule was suggested by the New
York Court of Appeals sua sponte in an action de-
! See for example, Richards v. United States, 285 F.2d 525 (10th
Cir.1960), aff'd 369 U.S. 1 (1962) ; Stoltz v. Burlington, 178 F.2d
514 (10th Cir.1949) ; Maynard v. Eastern Air Lines, Inc., 178 F.2d
139 (2d Cir. 1949) ; Curtis v. Campbell, 76 F.2d 84 (3rd Cir. 1935) ;
Barnes v. Union Pac. Ry. Co., 139 F.Supp. 198 (D.Utah 1956) ;
Tillinghast v. Maggs, 82 R.I. 478, 111 A 2d 718 (1955) ; Caldwell
v. Abernathy, 231 N.C. 692, 58 S.E.2d 763 (1950) ; Bagley v. Small,
92 N.H. 107, 26 A 2d 23 (1942); Wellman v. Mead, 93 Vt.322, 107
A.396 (1919).
11
scribed by one of the judges as without “warrant or
justifieation”” (Appendix B infra, B-8). Two other
judges of the same court expressed
ee
grave doubts as to the constitutionality
of the majority view in light of the decision of the
Supreme Court of the United States in //aghes
v. Fetter (341 U.S. 609) and section 1738 of title
8 of the United States Code, the implementing
statute under the full faith and credit clause of
the United States Constitution Cart. TV, 91).
which provides that full faith and credit be ae-
corded to the aets of the Legislature of any
State.” (Appendix B infra, B-20)
That the law, prier to the Ai/berg deeision, had
heen assumed to be different, is indicated by this
Couptes decision in Richards v. United States, 369
Uuss. 1 (1962). In that ease. which was tried in the
Okiahoma District Court and whieh involved an atr-
plane accident. iu Misseuri, the principal point at
issue was whether the Féderal Tort Claims Act re-
quired the application of the wrongful death act of
Missouri (where the death occurred) or of Oklahoma
(where the negligence eeccurred> and where the ease
was tried). This Court held that the Federal “Tort
CJaims Act required the application of the Missouri
Nets via the Oklahoma contlict of laws rule. just as
in this ease the New York contliet of laws rule re-
quired thé application of the Massachusetts Act. But
in Richards the Missouri $15,000 limitation was held
applicable without discussion, even thongh this Court
was at pains to point eut (369 TS. at 15) that Okla-
homa could constitutionally have applied its own Act,
whieh had no limitation.
12
‘The parallel between the Richards case and this
oben is singularly exact, because, as Judge Swan
sg out (infra, p. A-19), Oklahoma has precisely
le same constitutional prohibition against death
amage limitations as does New York, and therefore
Rhe same ‘tetrong public policy’* which was relied
/upon in Kilberg to justify the refusal of New York
| to enforce the Massachusetts limitation.
Therefore, although it may well be true that the
point was not argued before this Court in Richards,
the fact remains that in an exactly similar situation
this Court has reached a conclusion opposite to that
reached here.
It may be said that there way no showing in
Richards that Oklahoma has implemented its policy,
as New York has in Ailberg, by refusing to enforce
foreign limitations. The point was not raised in the
opinion, so°'we cannot know. But that only begs the
question. If Oklahoma had adopted the *Kilberg
rule’, would this Court have come to a different con-
elusion in Richards? Nothing in the Richards opin-
ion gives any clue to the answer. Pay
Clearly the question is an unsettled one, which, in
view of the result reached by this Court.in Richards,
should be considered and decided by this Court.
13
The question presented is an important one which has
been or will be presented in every case where one
state is required to apply the laws of another state.
There can be no doubt that the question is an im-
portant one. The Kilberg opinion, and the opinions
below in this case, all emphasize the tremendous
growth of the air transportation industry and_ the
accompanying increase in litigation involving | the
legitimate interests of several states, such as the
staie of residence of the passengers, the state of in-
corporation of the airline, the states“of_ departure and
destination, and the state of the accident?>~Lt is not
unusual—in fact, it may be said to be the normal
oceurrence—for many or all of the statutes of these
statessto be different. Thus, in many, or a majority
of, cases involving airplane accidents the forum will
he ealled upon to apply the laws of sister states. Now
those laws should be applied, and the extent of the
freedom of the forum state (if any such freedom
exists under the Full Faith and Credit Clause) to -
pick and choose the elements of those laws which it
will or will not enforce, are questions which must be
decided if the administration of justice in this area is
net to become chaotie. There are, in fact, cases now
pending in other jurisdictions in which the courts will
shortly be called upon to decide this very question.
It was raised, peripherally, in Popkin v. Eastern Atr
Lines, Inc., 204 F.Supp. 426 (ELD. Pa. 1962), where,
in fifty-five cases arising out of an airplane crash in
Massachusetts, it owas argued in opposition to a
motion for change of venue that the change would
deprive the plaintiffs of substantial rights since Penn-
14
sylvania would follow the Kilberg rule and refuse to’
enforce the Massachusetts limitation. No decision was
‘ made on that partichlar point; the Court noted the
pendency of the appeal in this case, and refused to
make **. .. a premature decision on the Constitutional
issue of the application of the full faith and credit
clause.’’ 204 F.Supp. at 435.. The cases were ordered
to be transferred, but, in an opinion filed on. Novem-
ber 19, 1962, the Court of Appeals for the Third (ir-
cuit) on plaintiffs’ petition for a writ of prohibition,
in ¢ffect reversed this decision. If the eases remain
in Pesieua. the constitutionality of the Ailbery
rule will be squarely presented to the Pennsylvania
federal courts.
~The question has also arisen, but was not decided,
in the Sixth Circuit. See Goranson v. Kloeb, 308 F.2d
655 (6th Cir. 1962).
Even on the single question of death damage limita-
tions, the problem is of vast importance. One quarter
of the states? now have such limitations, and pre-
sumably imposed such limitations for reasons of pol-
icy which were compelling to the legislatures involved.
As Judge Friendly in the dissent. below points out,
such states ‘tshould not be obliged. to speculate that
other states may take what is liked and reject what is
disliked’’ (infra, p. A-67). The decision below, how-
ever, if upheld, will require such speculation, and its
effects, therefore, will ‘be felt not only by the courts
and by the litigants, but also by the legislatures of
all of the states.
2 Colorado, Illinois, Kansas, Maine, Massachusetts, Minnesota,
Missouri, New Hampshire, Oregon, South Dakota, Virginia, West
Virginia, and Wise onsin—thirteen states in all.
The importance of the decision below is underlined
by the attention the so-called “‘Ai/berg rule’? has
received in legal periodicals. The majority copinion
(Appendix A infra, p. A-47) cites no less than nine-
teen different law reviews which have discussed or
commented on the Aidlbery decision. The decision of
the court below in this case is too recent to have, as
vet, attracted such a volume of comment; but it is of
interest to note, for example, that the decision was
considered of sufficient significance to warrant a
front-page article in The New York Times of Novem-
her 9, 1962.
‘The decision below has resolved conflicts between the
policies of two states, and between the policy of
the United States Constitution and the local policy
of New York, in a manner which cannot be sup-
ported.
The issue here, in essence, is whether one state, °
when it is called upon to enforce the statute of a
sister'state, may pick and choose among the various
provisions of that statute and ‘‘take what is liked
and reject what is disliked.’’ The majority has held
that the Full Faith and Credit Clause, and its im-
plementing statute, 28 U.S.C. § 1738, do not prevent
such picking and choosing. This result, as the dis-
senters point out, cannot be reconciléd with the pur-
pose of the Full Faith and Credit Clause, or with the
plain language pf the statute, which requires that
“Such Acts... shall have the same full faith
and credit in every court within the United
States... as they have by law or usage in the
16
courts of such State, Territory or Possession from
which they are taken.”’
Two strong conflicts of policy Were presented to the
court below. The first, the conflict ‘between the- policy
of New York against enforcing foreign death damage
_limitations and that of Massachusetts in favor of,
/
_such limitations, was resolved in favor of New -York’s .
policy. The second and more important was the con-
flict between New York’s policy and what this Court
has called **. . . the strong unifying principle em-
bodied+in the Full, Faith and Credit Clause looking
toward miaximum enforcement in each state of the
obligations ‘and rights created and recognized by the
stututes of sister states.’’ Hughes v. Fetter, 341 US.
609 (1951) at 612° This conflict, also, was resolved
by the court below in favor of the New York policy.
It is submitted that the resolution of these two
conflicts offered by the Court of Appeals was cleayly
wrong. (Granted that New York’s policy against -
death damage limitation is ‘strong, clear and old,”’
(infra, p. B-4) the implementation of that policy by
refusing to enforce foreign limitations is new—as new
af the anges ae Moreover, the New York State —
legislature despite the ‘strong, clear and old”’ policy,
/has three times rejected proposed bills which weuld
require an air carrier doing business in New York to
consent to the application of the New York statute
in all cases involving passenger deaths outside the
state? »
3 State of New York—An act to amend the Decedent Estate Law,
in relation to the applicable law in a wrougful death action predi-
cated upon an airplane accident outside the state,"’ Ass. TInt.3512,
PeNo4734 (1960); Ass.Int.1117 (1961); Ass.Int.372, Pr.No.372
(1962); Sen. Int.51, Pr. No.51 (1962),
-17
The Massachusetts policy in favor of the culpa-
bility standard and the limitation of damages, on the
_ other hand, is not only very “strong, clear and olt”’,
but it has been reaffirmed by the legislature thnge
times since 1958. 7 A ag .
In that year the statute was amended, effective in
1959, te inerease the limitation to $20,000, but) the
culpability standard and the principle of limitation
were retained. Ann.- Laws Mass. ¢. 229, §2 (Cum.
Supp. 1961), Mass, Acts 1958, &, 258, 9 1. * In 1961 ‘the
Massachusetts’ legislature provided for‘... . an in-
vestigation by the judicial council relative to remov-
ing beth maximun and minimum limitations of re-
covery in tort actions for death.’’ Mass. Aets and
Resolves, 1961, ¢. 30. The judicial council returned”
an adverse report on the bill to eliminate the limita-
tien. Mass. Judicial Council, 37th Report, 45-47
(1961) (“aecepted’? June 21, 1962). In 1962. the
statute was again amended to raise both minimum and
maximum limitations, effegtive January 1, 1963, Mass.
Acts 1962, ¢. 306. The committee which reeémmended.
the new bill to the legislature reported that it had
specifically considered and rejected two alternate
hills (H.. No. 274, H. No. 2964) which would have |
abolished the maximum limitation altogether, | See
Legislative Reeord at 583 in) ‘Commonwealth of?
Massachusetts, General Court of 1962.) Bulletin: of
* Committee Work and Business of the Legislature”
(Final Ed., 1962 Sess. ).
” -
Thus. there can be no comparisgi between the rela-
tive strengths of the two state policlys; and if the only
confliet were between those two policies, it would ap-
is *
pear that the Massachusetts policy should prevail.
There can be no contention that Massachusetts has no
‘‘contacts”’ sufficient to justify the application of its
policy: not only did the accident occur in that state,
but the defendant is a Massachusetts corporation, and
—all question of ‘‘vested rights’’ aside—it is as much
entitled to the protection of the laws of its domicile
as the plaintiff is entitled to the protection of the laws
of hers.
But that is not the only, nor the most important
contlict. The overriding consideration. here is whether
the New York policy should prevail ever the ‘strong
unifying principle’? of the Full Faith and Credit
Clause. The majority below has held that it should,
and that New York ean refuse to enforce those por-
tions of the Massachysetts statute which are not) in
accord with its local policy. The majority opinion
professed to find no conflict between that holding and
the plain language of the Full Faith and Credit
Clause, and it does not even refer to the language of
28 U.S.C. § 1738, quoted above. Petitioner submits
that there is a clear conflict, and that what the ma-
jority opinion below has im fact done is to drain all
meaning from the clause and from the statute.
Whether the problem is put in terms of a confliet
hetween the policy of the United States and the policy
of New York, or in terms simply of the meaning of
the Full Faith and Credit Clause as applied to stat-
utes, clearly -it is one which merits review by this
Court. :
4 The Kilberg dictum also raises grave questions under the Privi-
leges and Immunities Clause of the Censtitution (Art. IV, See. 2).
The several references to protecting ‘‘the traveling citizen of this
State’’ (infra, p. B-3), ‘‘our own States people’’ (infra, p. B-4),
1)
The question presented here is one fundiinental to
the philosophy of the Full Faith and Credit Clause,
and fundamental to the nature of the relationship: of
the various states and the federal government, It is
a question Which has never heen squarely presented.
to this Court, in all probability because, until now, the
answer was assumed to be contrary to what ‘the court
below has now decided. It is a question of tremendous
importance, particularly to a type of litigation which
is increasing yearly in volume and significance. It is
a question of imporeance not only to the courts and to
the litigants before them, but also to the legislatures
of the several states.
It is. in short, a question which should and indecs
must be finally decided by this Court,
a .
CONCLUSION
For the foregoing reasons, this petition for = writ
of certiorari should be granted.
Respectfully submitted,
Wintiam J. JUN KERMAN
Counsel for Pctitioner
Dovaras B. Bownine
James LE McQuiLian
Of Counsel
and to disregarding a ceiling on damoves ‘tat least to our own donii-
ciliaries’’ (infra, p. B-o>. clearly asciicate that: the advantages of
the new rule are to be denied to non-citizens, a secminely arbitrary
discrimination. Before commencement of this trial, Judge MceGohey
ruled that the Massachusetts limitation of $15,000 would be ap tied
in the consolidated case of Trauth v. Norticast Airlines, Ine., im-
volving a New Jersey domiciliary. CR. La-1va, 20a-21a).
A-1
/
District Court Opinion Denying Limitation and
Directed Verdict for Plaintiff :
(199 BF. Supp. 989]
Marinyn W. Pearson, as Administratrix of the Goods,
Chattels and Credits of John 5. Pearson, deceased
«and Marilyn W. Pearson,
Plaintiff,
. Vv.
Norrikast Amines, Ixc.,
. Defendant.
United States District Coprt
S. D. New York
Nov. 14, 1961. D\ ee
Frank G. Sterritte, Speiser, Quinn & O'Brien, New
York City, for plaintiff; F. Vil DeRosa, Wiliam F. X.
Geoghan, Jr, Grl Howard G. Law, Jr, New York City,
of counsel.
Haight, Gardner, Poor & Havens, New York City, for
defendant; William J. Junkerman, I. Anthony Zega, New
York City, of counsel.
McGoney, District Judge.
The plaintiff sues for damages for her husband's death
in the crash of the defendant's airplane on which he was
a passenger, at Nantucket, Massachusetts on August 19,
1958. The legal basis for her claim is the Massachusetts
Wrongful Death Statute.! That statute limits the amount
1 Mass.Gen.Laws Ann. ch. 999, § 2 (1958). The statute has since
been amended to raise the upper limit of recovery to $20,000. Mass.
Gen.Laws Ann. ch. 229, $2 (Sapp. 1961).
A-2
District Court Opinion Denying Limitation
and Directed Verdict for Plamtiff
recgverable in such a case to a “sum of-not less than two
thousand nor more than fifteen thousand dollars, to be
“assessed with’ reference to the degree of culpability of
the defendant or of his or its servants or agents * * °.”
Despite this, the plaintiff asks damages of $600,000 for the
allegedly wrongful death of her husband.
The plaintiff is now and at the time of her husband's
death he and she were citizens and domiciliaries of New
York. The defendant is a Massachusetts corporation.
This court’s jurisdiction rests on the diverse citizenship
of the parties.
Two questions have arisen: first, is the amount recover-
able by this plaintiff limited to $15,000? second, if it is
not, is the amount recoverable to be measured by “the
degree of culpability of the defendant” as provided in
the Massachusetts statute, or by the degree of “pecuni-
ary injuries, resulting from the decedent's death, to the
person or persons, for whose benefit the action is brought,”
as provided by the gaw of New York ?*
In this diversity Qteethis court sits as another state
court of New York? and a apply New York's coutlicts
law as announced by its highest court!
In Kilberg v. Northeast Airlines> a case arifing out of
the same crash involved here, the New York Court of
Appeals in a considered dictum expressed by the Chief
2 New York Decedent Estate Law, $152. sil
3 Guaranty Trust Co, of N.Y. v. York, 826 1.8.99, 108, 65 S.Ct.
1464, 89 L.Ed. 2079.
4 Klaxon Co. v. Stentor Electric Miz. Co, S13 US 487, 6 S.Ct.
1020.85 L.Ed. 1477. :
39 N.Y.2d 34, 211 N.Y.S 2d 133, 136, 172 N.E.2d 526, 029.
AGS
District Court Cd priitront Denoting Lemitatoan
aud Directed bebdicl for Plante
Judge and coneured in by three Assoenite Judges said:
“Por our courts to be limited by | Massachusetts’ | dan
age ceiling (af least as to our own domiliciaries ) is so
eompletely contrary to our public policy that we should
refuse to fenforee it}. It was further said) that if
Kilberg*s claim which, like this, was filed under the Massa-
chusetts statute, were amended to seek inmore than $10,000
‘t eonld “be enforced, if the proof so justifies, without re-
gard te the $15,000) fimit.” That dictum, so far as ap-
pears, has net been repudiated or moditied. 1 believe,
therefore, that it states the law which, if this swit were
pending in a New York vourt, that court would apply.
Accordingty, since TP beheve Tam required to apply at
here, Po hold that the amount recoverable by this plain-
tit ix net limited to $15,000,
The New York Court of Appeals in Wilbere did) not
consider the second question whieh has arisen here, Ac
cordingly, this court rust deternite how that court. uf
it had considered that question, woifd have answered
it. For the reasons. that follow, | think it would have
answered by saving that the damages should be meas-
ured by New York's standard of the pecuniary damages
resulting to the henetielaries from the death.
Chief Judge Desmond pointed out that since TSi4
New York's Constitution, article 1 section TS, has fer-
bidden not only abrogation of the then existing statutory
right ef action for damages for injuries resulting in
death, but also “any statutory limitations’ on the “amount
recoverable’ in such actions. The Chief Jmdge quoted
with appreval the observation of Mr. dlustice Hateh in
Medinaer N. Brooklyn Heiahts BOR. Co. 8 that “The ar-
—6uAD WP BON YS. GE 81TG Tetb|
‘
t
District Court Opinion Denying Limitation
and Directed Verdict for Plaintiff
gument which evidently controlled the convention [of
“1S804] in its action consisted of the claim that the arbitrary
limitation [of damages} was absurd and unjust, in meads-~
uring the pecuniary values of all lives to the next of
kin by the same arbitrary standard.” This is precisely
what results frem application of Massachusetts’ standard
of measuring damages, viz. the degree of the defendant's
culpability. “Peeuniary values” indeed then become alto-
gether immaterial regardiess of how great they may be
in any given case. It seems to me that having rejected,
as to New York domiciliaries, Massachusetts’), “damage
ceiling” of $15,000, New York would also reject the
Massachusetts rule for measuring damages by factors un-
related to the pecuniary loss sustained by beneficiaries.
Accordingly, I hold that the damages, if any, recoverable
by the plaintiff are to be measured by the degree of the
plaintiffs pecuniary injury.
So ordered.
4-9
District Court Opinion Denying Motion for Judgment
N.O.V. or for New Trial
a:
f201 F. \ Sepp. 45 |
Maninys W. Pearsox, as Adiministratrix of the Goods,
Chattels and Credits of John S, Pearson, deceased,
and Marilyn W. Pearson, Plaintilf,
v.
Norrukasr AiLINes, Exe.
Defendant.
United States District Court
S. D. New York.
Dee. 15, 1961.
Frank G. Sterritte, New York City, for plaintiff,
Haivht. Gardner, Poor & Havens, New York City, Wil-
liam J. Junkerman, New York City, of counsel, for
defendant.
MeGonry, Di- triet Judge.
This diversity suit, brought pursuant to the Wrongful
Death Statute of Massac Jausetts.! was tried to a jury
which on November 16, 1061, rendered a ve dict ine the
sum of $133,943.77 in favor of the plaintiff on her elaim
for damages for her husband's death. Judgment was
thereafter entered for that amount plus S26 106.88, pre-
judgment interest from August 15, 1958, the date of death.
t Mass. Gen Laws eh. 20 8 2.
Ss A-6
District Court Opriion Denying Motion for
Judgment NOV. or for New Trial
The defendant has moved “(1) for an order setting
aside the verdict of the jury in the above-entitled action
and providing for the entry of judgment im favor ot the
plaintiff in the sum of $15,000 in accordance with defend.
ant’s motion for a directed verdict at the close of the
plaintiff's case and at the close of all of the testimony
upon the ground that on the facts and the law in this
case, the sum of $15,000 is the maximum to which plain-
tiff is entitled; and in the alternative (2) for an order
granting a new trial upon the ground that the verdict is
contrary to law, contrary to the evidence, and is exces
sive; (3) for an order striking out the interest on the
verdict added by the clerk of the court covering the
period from August 15, 1958, to November 16, 1961; and
(4) for such other — further relief as to the court may
seem just and proper.”
The motion is in all respects denied.
During the trial, -this court, following the dictum of
the New York Court of Appeals in Kilberg v. North-
east Airlines, Inc.,2 ruled..(a) that the plaintiff was not
limited to a maximum recovery of $10,000 as prescribed
in the Massachusetts statute; and (b) that damages were
not to be measured by “the degree of culpability of the
defendant, "as prescribed in that statute, but by the
plaintiff's pe cuniary loss resulting from her husband's
death, as prescribed in New York’s Decedent Estate Law,
McKinney's Consol. Laws, ¢. 13, § 152. This court's rea-
sons for these rulings are set forth in its opinion filed on
November 14, 1961.43
29 N.Y.2d 34, 211 N.YLS. 2d 155, 172 N.E.2d 92
3199 F.Supp. 539.
=
p AG
District Court Opinion Denning Motion for
Judqment NOV. or for New Trial
In Kilberg, the New York Court of Appeals did not, it
ix true, discuss the questions of pre: judament interest,
However, in light of what that court did) say in that
cause, it) seems altogether likely that, if that question
had been considered, the New York Court would have
ruled that, in accordance with new York's policy as eX:
‘pressed in section 132 of the Decedent Estate Law, pre-
judgment interest on the®amount of any verdict in’ Kil-
here's favor would have to be included, in the judgment
entered thereon. Accordingly, m the instant case the
clerk was directed by this court to include in the judgment
pre-judgment interest on the amount of the verdict,
The defendant relies on three cases in support of its
contention that this court's direction to add pre-judgment
interest: Was unauthorized: Wyman v. Pan American Air-
ways? Maynard vy. Bastera Air Lines} and St. Clair v.
Eastern Air Lines. The first two ot these exses are in-
applicable here, They were decided respectively in 1944
and 1949, long before the decision in Kilbere. The third
ease cited was a wrongful death action brought pursuant
to the District of Columbia Wrongful Death Aet.? which
does not provide for the award of pre-judgment interest,
The plaintiff there, relying on the Kilberg dictum, moved,
after entry of judgment, for amendment thereof to add,
pre-judgment interest in accordance with section 132 of
4181 Mise, 963, 43 N.Y.S. 2d 420, afd (no opinion) 267 App.
Div. O47, 48 NAYS. 2d 459. atl (no opinion) 243 NY. 87s, 99
NUE. 2d 785; cert. denied BOE TUS, sad, 65 S.Ct. 102), 80 LB
1432. <
S2.Cir, 78 Fe ALR, 2d 646,
6D.CSD.N.Y., 14 BL Supp. 625,
7C.Code $8 16-1201 to 16-1205,
c <
z
AS
District Court Opinion De vying Motion fer
Judament N.OV. or for New Trial
New York's Decedent Estate Law. The judge who heard
the motion denied it. In a short opinion, after noting
that in Kilberg the Court of Appeals did not mfer to or
consider the question of pre-judgment interest, he held
the Kilberg dictum “has no bearing” on the issue raised
by the motion before him. {194 Supp. G24. |
The District of Columbia statue, unlike tthe Massachu-
setts statute, does not, get ac ilinge on the “amount of
damages which may -bé recovered for wrongful death,
Neither does it provide that damages are to be measured
by “the degree of culpability of the defendant.” On the
contrary, the damage provisions of the District of Colum-
hia statute are subs ntially the same as New York's
except that the former ‘do. not require the award of pre-
judgment -interest on the jury’s verdtet. Whether, because
of this, New York's highest court would consider the
damage provisions of tht District of Columbia statute
“so contrary to New York’s policy as to justify New York's
cowrts in refusing, to enforce them, need not be decided
here, It is sufficient to note the signifieant ditTerences
between the statutes of, the District of Columbia . and
Massachusetts. In viet of that difference, the decision in
St. Clair v. Bastern Air Lines, supra, does not seem to
me to require deniel of pre-judgment interest here.
So ordered.
&
a
AQ | 0
v
Opinion of Original Panel of Court of Appeals .
307 F.2d 181] ©
* OUNTPED STATES COURT OF APPEALS
For tim: Skcoxp Crrecrr See
No, 207-—September Term, 1961,
(.Aggrned April 11, 1962 Decided July 11, 1962.)
Docket No. 27850
~~, me
9
Maninys W. Pearsos, as Administratrix of the Goods,
, Chattels, and Credits of Joms S. Pelnsox, deceased,
. Plaintitf-Appeliee,
Nortugast Aimiines, ENc.,
Defendant-Appellant.”
s+
>
~~
tefore: Lumparp, Chief Judge, and
Swan and KacrMas, Circuit’ Judges,
.
This is an appeal by the defendant, Northeast Airhnes,
Ine, a Massachusetts corporation, from a judgment of
$160,204.65 for plaintiff, administratrix of the estate of
her deceased husband, who was killed when defendant's
plane, on which he was a passenger, crashed on Nantucket
Island, Massavhusetts. The ense was tried before Judge
MeGohey and a jury, which was instructed that the $15,000
limitation of the Massachusetts wrongful death act was
inapplicable, Judgment reversed and cause remanded,
Haran, Ganvxer, Poor & Havens, New York N. Y.,
for Appellant. William J. Junkerman and
Douglas B. Bowring, Of Counsel.
APPENDIX A
COPIES OF OPINIONS 5zELOW
“A100 *
— Opinion of Original Ponel of Court of Appeals
Prank G. Srerritrre, New. York, N. Y¥,, for Appel-
lee. Florindo M. De Rosa, Willtam L. Shumate
and Stuart M. Speiser, Of Counsel.
Swans, Circuit Judge:
This appeal involves litigation which resulted from the
crash, on August 15,1958, of appellant's airplane on Nan-
tucket Island. Mrs. Pearson as administratrix of her
deceased husband's estate brought suit in the Southern
District of New York, federal jurisdiction resting on diver-
sity of citiz@nship, she being a citizen of New York and
defendant a Massachusetts corporation. Her complaint
alleged seven causes of action,’ but there remains for
_consideration on the appeal only the cause of action based
on the Massachusetts wrongful death act, which limits
recovery to $15,000, and certain orders of the trial court
—_donying defendant's motions-(a) 40 dismiss the complaint
insofar as it sought damages for wrongful death in ex-
cess of $15,000, (hb) for a directed verdict for plaintiff in
the amount of $15,000, (c) for judgment non obstante vere
dicto in the limited amount of $15,000, and (d) for an
order striking out that portion of the judgment which
awarded plaintiff Mterest from the date of death, August
15, 1958, to the date of judgment, November 16, 1961,
amounting to $26,106.88,
In denyiy ¢ defendant's motions to limit recovery to the
maximum “permitted under the Massachusetts wrongful
— °
1 Four of the original causes of faction were dismissed by Judge
Weinfeld in a memcrandum decision publisked at 180 F.Supp. 97.
Another based on decedent's pain and suffering prior to death, was
dismissed at the close of the trial for lack of proof. The seventh
count was for loss of personal property of the decedent. As to this,
the eonrt, on defendant's motion, directed a verdict for $100, and
plaintiff has not appealed.
Mrs. Pearson also filed a libel in admiralty which was dismissed
for lack of jurisdiction at 199 F. Supp. 93s.
A-TT"
Opinion of Origaal Panel of Court of Appeals
death act2 Judge McGohey ruled that he was obliged to
apply a dictum of the New York Court of Appeals in Kil-
berg v. Northeast Airlines, Inc.. 9 N.Y. 2d 34 to the effect
thet the Massachusetts limitation would not be enforeed-
against a New York citizen suing in a New York court.4
2 Chapter 229, section 2 Massachusetts General Laws:
-
*S9 Pamages for death by necligence of common carrier. If
the proprietor of a common carrier of passengers * * * causes
the death of a passenger, he or it shall be liable in damages int
the sum of not less than two thousand nor more than, fifteen
thousand dollars, to be assessed with reference to the degree of
culpability of the defendant or of his or its servants er agents,
and recovered and distributed as provided in sevtion one, and
to the use of*tTe persons and in the proportions, therein speci-
fied.”’
3jack Kilbere sued as adininistrator of the estate of Edward J.
Kilbere, a passenger on the plane who was killed iy the same crash
‘as Mrs. Pearson's husband. The Opinion states :
tll % * -
—** Four our courts to he limited by this damage ceiling (at least
as to our own domiciliaries) is*so completely contrarg’ to eur
public policy that we should refuse to appiy that part of the
Massachusetts law * * % 7’ :
a * * * :
“We will still require plainti? to snecon the Massachusetts
statute but we refuse on public policy vrounds to enforce one of
its provisions as to damages.”
* * * od '
. , ‘
“As to whether the measure of damaves should be treated as a
procedural or a substantive matteg 1 wrondful death cases,
there is authority both ways # © Rt is open to us, therefore,
particularly in view of our own stpong public policy as to death
action damayes, te treat the measure of damages in this case as
being a procedural or remedial question controlled by our owt
State policies. ””
« * * .
“Prom all of this if follows that while plaintiff's second or cay
tract cause of actinp: is deurrable, his first count declarin®
under the Massachupetts ronetul death action is not enly
sustainable but can been creed, if the proof so justifies, without
regard to the $15,000 limit.”?
Northeast’s brief in this court states that. Mrs. Kilberg did not
amend her complaint but accepted Jess than $15,000 in settlement,
and discontinued her action.
A-12
Opinion of Original Panel of Court of Appeals
He also ruled that the damages should be measured not.
by “the degree of culpability of the defendant,” as required
by the Massachusetts statute, but “by New York’s standard -
. of the pecuniary damage resulting to the beneficiaries
from the death.” Judge MeGohey’s opinion is reported
at 199 PF. Supp. 539. Later, in denying defendant's mo-
tion to strike ie nies interest, he wrote a memoran-
dum decision*and order, dated December 15, 1961, not
reported in Federal Supplement.
- From these rulings of the trial court the defendant has
appealed. It is not contended that in refusing to enforce
the Massachusetts limitation of $15,000 Judge MeGohey
misconstrued the Aiv/berg dieiun. It is contended that
such ‘ruling Violates the full faith and credit clause and
the due process clause of the United States Constitution.
° With respect to the rulings on the measure of damages
and on prejudgment interest appellant contends that the
trial court did miseonstrue the New York law, or, if he
correctly construed it, that the New York law.is similarly
unconstitutional. For reversal of the ruling as te pre-
judgment interest retiance is also placed on a decisign
of the Appellate Division, First) Department, made sub-
sequent to Judge McGohey'’s decision of December £5,
196138 :
Appellant devotes some ten pages of its brief to critici$m
of the Kilberg dictum in the endeavor to show that it *®rep-
resents not only an ill-advised exeursion into the field of
advisory,opinions, but a misconception (at least) of the
earlier New York law and bad law in itself," and notes
that three judges of the Court of Appeals stated in
Vigorous terms that the majority had no “warrant. or
ga Davenport V. Webb VS App. Div. 42. This decision was afirmed
on June 12, 1962, 11 N. ¥. 2d ——
x
*A-13
Opinion of Original Panel of Cowrtof A ppeals
justification” for going beyond the issue decided. We
think it inappropriate for this court to discuss the wis-
dom or the soundness of the majority’s dictum, and there
is no necessity of our doing so, Consequently we pass at
onee to a discussion of the appeal.
Since federal jurisdiction rests on diversity, it is ¢lear
that Judge MeGohey was obliged to apply the law of the
State of New York, Erie R. Co. v. Tompkins, 304 U.S. G4,
including its conflict ef laws, doctrine, Alarton ¥. Stentor
Electric Mia. Co., 3¥3 U.S. 487, unless some provision of
the Constitution of the United States precludes its ape
plication, Gn the main issue, limitation of lability, ap-
pellant contends that application of the dietum violates the
full faith and eredit elause, while appellee contends that
this provision does not preelude a State from applying
its own conflict of laws rule.
A majority of the court holds, Judge Kaufman dissent-
ing, that the trial court's refusal to apply the $15,000 lim-
‘tation of the Massachusetts statute violates the Full Faith
and Credit Clange. of the Constitution. (Art. IV, see-
tion 1.)4 In denying the motion to strike out pre-judg-
ment interest, we are all agreed that the trial court erred.
The purpose of the full faith and credit clause of the
Constitution, as briefly explained in Sherrer v. Sherrer,
994 U.S, 343, 355, was to transform an aggregate of Mide-
pendent sovereign states into a nation, “If in its applica-
tion local policy must at times be required to give way,
‘such is part of the price of our federal system’ * * cated
4 Seetion 1. Full Faith and Credit shall be given in each State»
to the Publie Acts. Records, and Judicial Proceedings of every other
State, And tiie Congress may by eoneral Laws preseribe the Manner
wn which such Acts, Records and Peo: eedings shall be proved, and
the Effect thereof.’’ (See also the implementing statute, 25 U.S.
C. A. 81738.)
ke
e
ot
.
A-14
Opinion of Original Panel of Court of Appeals
[citation omiiied]. To like effect is Estin v. Estin, 354
U. S. 541, 545-546. Neither of these cases was an action
for wrongful death. The conflict between a foreign wrong-
ful death action and a statute of the forum has been con-
sidered by the Sypreme Court in three cases: Hughes v.
Fetter, 341 U. S. 609; First National Bank v._United Air
Lines, 342 U. S. 396; Wells v. Simonds Abrasive Co., 345
U. S. 514. Appellant relies upon the first two; appellee
upon the last.
In Hughes the highest court of Wisconsin affirmed the
dismissal ef an action brought under the w rongful death
statnte of Illinois on the ground that a Wisconsin statute
had been construed by its courts as.est ablishing a local
public juicy against entertaining suits brought under
wrongful death statutes of other States. This was reversed
by the Supreme Court as a violation of the full faith and
credit clause, Mr. Justice Black, who wrote the majority
opinion, stating at pagrs 611-612:
“«* * * We have recognized, however, that full faith
and eredit does not automatically compel a forum,
state to subordinate its own statutory policy to a
conflicting publie act of another state; rather it is
for this Court to choose in each casg between the
competing public policies inv olved. The élash of in-
terests in cases of this type has usually been de-
scribed as a conflict between the public policies of
two or more siates. The more basic conflict involved
in the present appeal, however, is as follows: ©@n
the one hand is the strong unifying principle em-
bodied in the Full Faith and Credit Clause looking
tward maximum enforcement in each state of the
obligations for rights] created or- recognized by the
*
c
Zz A-15
a
Opuion Asin Panel of Court of Appeals
statutes of sister states; on the other hand is the
policy of Wisconsin, as interpreted by its highest
court, against permitting Wisconsin ‘courta, to enter-
tain this wrongful death action. ;
We bold that Wisconsin's policy must give way.
That state has no real feciing of antagonism against
'
wrohgful death suits in general, © "7°" .
/
As in Hughes, the present appeal involves the same
“more basic confliet”—a conflict between “the strong uni-’
fying principle embodied in the’ Full- Faith and Credit
Clause” and the public poliey of N ow York expressed in
the Adlberg dictum, It is likewise true that New York
has no antagonism to wrongful death actions in general.
Hs antagonism is only to the limitation of liability. Its
own statute has no limitatién but the opinion recognizes
that planes rights arise under the Massachusetts sta-
tute, not the New York statute) The Supreme Court is
the final authority to choose “between the competing pub-
lic policies involved.” But on the present appeal this
court must make the choice. This court. belteves that
the “strong, unifying principle” of the fuél faith and
credit’ clause should prevalk~ p
In the First National’ Bank case the suit was brought
in’u federal district court in Hlinois, on gorunds of diver-
sity of citizenship, to recover under the Utah wrongful
denth statute for a death which oceurred in Utah. As
‘required by an Illinois statute, the trial court dismissed
the suit, and the Court of Appeals affirmed, 190 F. 2d
493. But he Supreme Court held the statute invalid under
SSee note 3. supa; also the Court of Appeals diseussion of
Kilberg in Davenport v. Webb, N.Y. 21 -—-.
4 be *
i]
A-l6
Opinion of Original Panel of Court of Appeals
the full faith and credit clause of the Constitution, — In
a concurring opinion Mr. Justice Jackson wrote at page
400:
“For the essence of the Full Faith and Credit Clause
is that certain transactions, wherever in the United
States they may be litigated, shall have the same
legal consequences as they would have in the place
where they oecurred, [Citations omitted. |
There is undoubtedly some area of freedom for
state conflicts law outside the requirements of the
Full Faith and Credit Clause. In such matters, un-
reached by constitutional law, the state rule. would
prevail in a diversity court Alaron Co. v. Stentor
Co., 313 U.S. 487. But if a transaction is so associ.
ated with one jurisdiction that the Constitution com-
pels any forum in which the transaction is litigated
to apply the law of that jurisdiction, is it not the
Constitution instead of state confliets law which de-
termines what law the federal court shall apply?”
That the answer to this question should be “yes” is the
belief of a majority of this court,
In Wells v. Simonds Abrasive Co., 345 U.S. 514, plain-
tiff’s decedent was killed in Alabama by a bursting emery
wheel alleged to have been defective. The Alabama
wrongful death act contained a “built in” two-year siat-
ute of limitiations. Within two years, but more than“one
year, after decedent's death, plaintiff sued) the manutfae-
turer of the amery wheel in a federal court in Pennsylva-
nia, jurisdiction resting on diverse citizenship. The Penn-
syivania statute of limitations was one year, and the issue
was whether the court: was compelled to give fuil faith
and credit to the two-year limitation of Alabama. The
Supreme Court held it was not. Mr. Chief Justice Vin-
AWG
Opiniou of Qriaina!l Panel of Caonrt at Apye ads
son's opinion distingnistied Haaghes and First National
Bank on the ground that in those cases “the forum laid
an uneven hand on causes of actig arising Within and
without the forum state’? whereas “Here Peunsyivania
applies ler one year limitation te all wronefil death
actions wherever they may arise.” The opinion explains
that the court “long age” had held that applying. the
statute of limitations of the forum to a foreign substan-
tive right did net deny full faith and eredit, and states
that that clause “does hot compel a state te adopt oie
particular set of rutes of conthet of laws; it merely sets
certain minimum requirements whieh each state must
observe when asked to apply the law of a sister state."
The appellant argues that the “uninimim requirements”
which New York must observe derintnd enforcement of
the Massachusetts fimitation, beeatse, as etated by Mr.
Justice Holmes in Sleter v. Meco Netienal RL Co. U4
U.S. 120, 126; “Tt seems to us unjast to allow a plaimt aly
to come here absolutely depending on the foreien law for
the foundation of is cense, ane vet te deny to the defend
ant the benefit of whatever limitations on his liability that
law would impose.” In Paris vy. Wills, W4 UL S. 461 at
454. the same Justice snid: “* * * But, as the sottee of
the obligation is the foreign law, the defendant, generally
speakimir, is entitled to the benefit: of whatever conditions
and Limitations the foreign law erentes”
Appellant argues further that there is an oabvions dis-
finetion between the Wells ease and the ense at har. In
Wells the plainti® was not deprived of all remedy; he
could sue in any state where defendant could be fonnd and
whieh has a longer statute of limitations than Pennsylva-
Gee. dissenting opinion of Mr Justice Jacksen in which Mr
Justice Black anc Mr. Justice Minton joined. 345 0S. 51%.
“A-18 i
Opinion of Original Panel of Court of Appeals
nia or follows a different conflicts rule. In our case
defendant had no choice as to the forum, If deprived of
Ate protection of the limitation imposed by the law whick,
as Kilberqg recognizes, created the liability, he will be
treated unjustly. :
A defendant is in a different position from a plaintiff
vio seeks tafenforce a cause of action conferred by the
laws of another state, as Mr. Justice Brandeis pointed out
in Bradford Electric Light Co. v. Clapper, 286 U.S. 145,
160:
“* * © A State may, on occasion, decline to enforce a
foreign cause of action, In so doing, it merely denies
a remedy, leaving unimpaired the plaintith’s substhn-
tive right, so that he is free to enforce it elsewhere.
But to refuse to gite effect toa substantive defense
under the applicable law of another States, as under
the circumstances here presented, subjects the defen-
dant to irremediable liability. This may not be dane.”
| Citations omitted. |
The Clapper ease involved, the workmen's campensation
laws of Vermont and New Hampshire. Appellant concedes
that the decision has been diluted by subsequent: cases
dealing with workmen's compensation but argues perst-
asively that nothing in the later cases gives support to the
proposition that full faith and credit must give way to a
local policy not embodied in a statute which directly gov-
erns the cause of action.? “As previously noted, Nilbera
.
7 For example, in Aloska Pac he rs Association vo Industrial Acer-
dent Comnitssion, 24 UL S. S82. at ot), it was pointed out that
“whilesimilar power to cortrol the leval consequences of a tortious
act committed elsewhere bas been demed, * * * the liability under
workmen's compensation acts is not for a tort eee” See also
Pacstic Employers Ins. Co. v. Industrial Acculent Commission, 306
Vos 493, 499; Carroll vo Lanza, 349 US. 408, 415-414.
A-19
Opinion of Original Panel of Court of Appeals
“still requires plaintiff to sue on the Massachusetts
statute’; it does not claim extraterritorial effect for the
New York wrongful death act. In our opinion the work-
men’s compensation decisions are distinguishable from
the ease at. bar. .
So also are decisions involving the federal Tort Claims
Act, Richards vy. United States, 369 U.S. 1, cited by
appellee as favorable to it, is favorable to appellant, if
it has any. relevance. No constitutional question was
there presented ; Missouri was the place of the death,
and Oklahoma, the place of the negligence. Missouri, like
Massachusetts, had a-s1o,e00 limitation on wrongful death
damages, and: Oklahoma, like New York, had a constitu.
tional limitation against such limitation. The final result
of the litigation was to apply the Missouri statute, where
the death ocengred. See Rac hards v. United States, 10
Cir, 28d FB. 2d 521, which*the Supreme Court affirmed.
There is no decision by the Supr me Court that the fail-
ure to enforce the limitation of a foreign wrongful death
vet is consistent with the full faith and credit clause of
the Constitution. A majority of this court holds it is not.
Consequently it is unnecessary to consider appellant's
other contentions,’ except the ruling as to pre- judgment
interest.
‘whe Ailberg dictum did not mention the subject of in-
terest. Judge MeGohey directed that) pre- judgment in-
perest be added because he thought it likely that if the
question had been considered, the Xew York court would
have ruled in accordance with the policy expressed in
section 182 of the Decedent Estate Law, A few days
subsequent to denial of the motion to strike out such
intetest Davenport X. Webb, 15 App. Div. 42 was de-
4
a . A-20
_ Dissenting Opinion of Original Panel of Court of Appeals
cided.8 This decision was affirmed by the Court of Appeals -
in 11 N. Y¥. 2d, . It will suffice to grote thom that
opinion the following:
“In New York, the prejudgment interest in a
¢ wrongful death action is ‘part of the damages’ (Gleb-
horn v. The Ocean Accident & Guarantee Corp. Ltd.,
244 N. Y. 166, 167), the addition of which is gov-
erned by recourse to the usual conflicts of law rules,
which we have consistently applied by not adding
interest to the judgment unless lex loci delictus
authorizes such an addition.” [Citations omitted, |
The Massachusetts statute provides for the addition of
interest from the date of the writ. Chapter 229, section 11.
The judgment is reversed and the cause remanded for
entry of judgment in conformity with this opinion,
—_---_—,
Kavrman, Circuit Judae (dissenting) :
Marilyn W. Pearson, widow and administratrix of the
estate of John S, Pearson, commenced the present action
(on behalf of the estate) against Northeast Airlines, Ine.
in a federal district court (S. D. N.Y.) to recover for the
death of her husband. “Mr. Pearson was a passenger
aboard a Northeast Airlines plane, en route from New
York, N. Y. to Nantucket Island, Massachusetts. The
plane crashed in the vicinity of Nantucket on August 19,
1958. After a 6 day trial a jury found that-the airline's
negligence was the sole and proximate cause of Mr. Pear-
son’s death; and that Northeast Airlines was liable for
8 This court came to the same conelusion as to the effect of the
Kilberg dictum. Sé. Clair v. Eastern Air Lines, Inc., 2 Cir., — F.
2d —- (April 24, 1962).
~~
A-21
Dissenting Opinion of Oriainal Pane! of Court of Appeals
the resultarg pecuniary damages sustained by Mrs, Pear
son, A judgment of $160,150,65 was entered for the plain-
ti including pre-judement interest calculated from the
day Mr. Pearson died."
‘On appeal, the airline does not assert that Judge Me-
Gohey committed any evidentiary errors which require
reversal and a new, trial, Furthermore, it does not argue
that the jury's verdiet was contrary to the weight of the
ovidence, or that its award was unjustified by plaintiil’s
proof of pecunury loss. Instead, the appeal is based pri-
marily upon the airline's assertion that Mrs, Pearson, as
a matter of law, is Himited to a recovery of $15,000.22 With
respect to this contention, the airline concedes, as it must,
that a federal trial court sitting in a diversity jurisdiction
ease is required to apply the cubstantive law of the forum
state; and that the court below correctly interpreted the
applicable state huw declared iw 1961 by New York's high-
est court in Kilberg ¥. Northeast Airlines, Inc., 9 XN. Y. 2d
og 21) NOY. S. 2d 188, a case which invelved an identical
claim against the same ‘airline under like cireumstances
(the death of one of Mr. Pearson's fellow passengers on
the ill-fated flight), Furthermore; the airline agrees that
Judwze MeGohey instrueted: the jury on this issue in ae-
cordanee with the Aulberg decision, Thus, .it Would seem
clear that if Mrs. Pearson bad’ filed her complaint in the
1The Court is in agreement that a partial reduction of the
amount of interest added to the jury ‘So verdiet is necessary. See
majority opinion, supre. Therefore, 1 shall not deal with this ques-
tion. .
2 Appellant also contests the manner in which prejudgment. in-
terest: was computed, see 0. 1. supra, and the standard used) fer
nieasuring its hability. “The latter Isstie is hot Pese ved because it
was rendered moot by the majority ce jsion, Tlowever, it ts consid.
ered in this dissent, and | have covelnded that the appellant's con:
tention on this point is without substance. See pp. 2631-32, infra
ba
A -23
Dissenting Opinion of Original Panel of Court of Appeals
New York Supreme Court, rather than across the street
in the United States District Court, the sare principles
of substantive law declared by the New York Court of
Appeals would have been applied. Consequently, it is
the airline’s position that both state and federal courts
would be acting unconstitutionally if they applied the
conflict of laws doctrine enunciated by the New York
Court of Appeals in Kilberg v. Northeast Airlines, Inc.,
supra, because that doctrine violates the federal Consti-
ion’s. Full Faith and Credit Clause3 A majority of
“YW Court agrees with the airline. I share the opinion of
the New York Court of Appeals (per Desmond, Chief
Judge) that the Kilberg rule is constitutionally sound.
Id., 9 N. Y. 2d 41-42, 211 N.Y. S. 2d 137-1388.
As I have indicated, no doubt is left as to the rules of
substantive liability which New York courts would apply
in a wrongful death action maintairfed for the death of a
New York domiciliary in a plane crash occurring, within
Massachusetts borders under the circumstances of this
case. In Kilberg the New York Court of Appeals voiced
concern about a problem which had become increasingly
important as the use of air transportation expanded, and,
for various reasons, fatal accidents become more frequent.
The court was concerned because “Modern conditions
make it unjust and andmalous to subject the traveling
citizen of this State to‘the varying laws of other States
through and over which they [sic] move.”"4 Considering
the vast air transportation network centered in New York,
the court pointed out that:
“An air traveler from New York may ina flight of
$US. Const., art. IV, $1. See also 28 ELS. €. $1738, which im-
plemeits the constitutional provision.
.
4 Aalborg Vv. Northeast Aulines, Tne. ON. Y. 2139, 211 N. YS. 2d"
1335.
3
i!
\
A 7
\\
\\
\
Dissenting Opinion of Original Panel of Court of Appeals
a few hours’ duration pass through .several ass
commonwealths. His plane may meet with disaster in
a state he never intended to Yross but into which, the
plane has flown because of \bad weather or other
unexpected developments, or lan airplane’s catastro-
phic descent may begin in gne State and end in
another. The place of injury, becomes entirely fer-
a
tuitous.” Id (italics added). i te
A y
The opinion observed thal small agen of states still
retained wrongful death statutes With provisions severely
limiting an airling’s: liability Ao its passengers for fatal
accidents caused je its Hegtigence, Thus, under the Jer
locus delicti choice of law rule ordinarily used, such lim-
tations would be applied against New York citizens when
accidents ocearred within the borders of those states, Phe
court reealled that when the men who framed the New
York Constitution in PS8s4 were urged to limig the recovery
allowed for loss of human life in that state, fund to incor
porate a provision substantially similar te the $15,000.
limit found in’ the Massachusetts statute) the prope<al
was rejected as being “absurd and unjust, in measuring
the pecuniary value of all lives, to the next of kin, by the
same arbitrary standard.” The reaction wags so, strong
that a provision which prohibited the jegislature from
enacting any such statute was adopted instead. The opin-
‘on suggested that in the 66 years since the New York
Constitution was writtea the absurdity and injustice of
fixe@ limitations enacted in other states had become “in-
creasingly apparent.” Coneluding that it was the duty of
the judiciary to efirovide protection for our own State's
people against unfair and anachronistic treatment of the
3 Massachusetts ha: sinee ame nded its how te permit a recovery Up
ty $20,000, Mass. Gen. Laws Ann. ch. 229, $2.
A-24
Dissenting Opinion of Original Panel of Court of Appeals
/
lawsuits” résulting from airplane disasters in those states,
Chief Jydge Desmond announced that heneeforth New
York eéurts would no longer apply such limitations be-
cause they were “completely contrary” to New York’s
public policy.6 Within the last few weeks, the Courtof
Appeals has again indicated distinctly and definitely that °
the principles stated in Kilberg reflect the law of New
York. See Davenport v. Webb, 11 N. Y. 2d ——- (June 12,
1962). .And the court also has stated with unmistakable
clarity that the Kilberg decision rests ‘6xelusively upon
the considerations of publie policy which I have de-
seribed.?
At the threshold of my “consideration of the constitu-
tional implications of the Aidberg decision, I pause to note
that Kilberg did not work any revolution in traditional
conflict of laws philosophy. The case involved nothing
more than a particular application of a doctrine well es-
tablished in New York and elsewhere that a state may
refuse to apply principles of substantive law “borrowed”
from other states im accordance with standard choice of
law rules, when the foreign principles conflict with some
& Kilberg v. Northeast Airlines, Inc., 9 N. Y. 2d 39, 211 N. Y. 5.
2d 1535.
7In Davenport v. Webo, supra, the plaintiffs-appellants argued
that rules concerning pre-judgment interest were * procedural ”” be-
cause they merely affected the measure of damages, so that New
York procedural law should be applied regardless of er locus delieti.
The Court of Appeals rejected this arzument as follows ;
“Plaintifis point to language in the Ailberg opinion to the
effect that ‘it is open to us * * * to treat the measure of damages
in this case as being a procedural or remedial question con-
trolled by our own state nolicies’ (4 N.Y. 2d, supra, at pp. 41-
Ww). du Aalberg the court was confronted with a question of
state public policy requiring decision. Ailberg * * * must be
held merely to express this state's strong public policy with
respect to liniitaitors ii Whoratul death actions.”’ dd. at 250
NYS. 2dbat po 172 NH. 2d at p. 904.
ASS
Dissenting Opinion at Oriqiual Panel ot Court of bpp als
fundamental public policy of vhe forum, See Stumberg,
Conflict of Laws Ws (2 ed, 1951); Coster ¥. Caster, 28
XY. 438, 442, 46 N. BK. 2d 909, of (1943); Merts v. Mert:,
O71 N.Y. 466, 473, 3. N. EB. 2d 597, 999 (1936).8 Moreover,
as revealed ina comprehensive apalysis of the “pubhe
policy” concept as it pertains to choice of law rules,
“AHL the commentators would retain the public
policy principle in conflicts to the extent that it is
erounded in basic moral conceptions or in ideas of
fundamental justice, and we agree, If the foreign
law normally applicable violates the strongest moral
convictions or appears profoundly @ijust at the
forum, the law should not he applied, The principle
can be. defended on the ground that above all, any
court's job is te aim at the just accommodation of
controversy or, perhaps, with the notion that the
decisions of courts should not ‘exhibit to the Citizens
of the state an example pernicious and detestable.’
[Greeneood v. Curtis, 6 Mass. 258 378 (1810) ].”
Paulsen ana Sovern, “Public Poli yo in the Couflict
of Leis, 56 Colum. 1. Rev, 969, 1010 (1956). ‘
Whether the: “puble policy’? doctrine has been used. in
order to avoid necessary re-evaluation of outmoded and
Inadequate choice of law rules, a criticsin suggested by
8 Messachusetts courts were amon the first Ux this coyntry to tse
the public poliey concept When forermn law was renuanant to funda-
mental tenets of that state's jurisprudence. Seo Greenwood VN.
Curtis, in the Paulsen and Sovern-aiticle quoted above. In Blan-
chard \. Russell, 13 Mass. 1. 67 1S Ys). the court said that ‘¢* * * the
judicial power will exercise avdXeretion With respect to the laws
they may he allied upen to sanction; for. if they shontd be mant-
festly unjust, or calculated to injure their oyn citizens. they ought
to be rejected.”" See [Higgins Vv. Central Mote, England & W. R. Co.,
135 Mass. 176, 29 \_ E. 354 (1892); Jackson SX. Anthony, 282 Mass.
540, 185 N. EB. deo) (1933).
A-26
Dissenting Opinion of OFigural Pane! of Court of Appeals
Professors Paulsen and Sovern, or, as Professor Cavers
has observed, whether it is used as an avenue of escape
from mechanical rules creating injustice, see Cavers, A
Critique of the Choice-of-Law Problem, 47 Harv. L. Rev.
173, 183 (1933),
“It is apparent * * * that in most cases the choice
of local rather than foreign law [because of “public
polier” | cannot he regarded simply as a matter: of
parochialism, ‘The common invocation of the public
policy argument is * * "an assertion of the forum's
right to have its law applied to the transaction be-
cause of the forum's relationship to it” Pauisen &
Sovern, op. cif, supra, at OST.
In Kilberg, the New York Court of Appeals, in essence,
made precisely that assertion. The court continued to
recognize a number of Massachusetts substantive rules
incidental to plaintiff's claim, and thereby paid lip service
to the ler locus delicti rule. But its refusal to recognize
the “entirely fortuitous” circumstance of an airplane's
fatal descent into Massachusetts territory as compelling
an application of an ‘absurd and anjast” limitation (which
would result in “anachronistic” treatment of lawsuits for
wrongful death in New York courts) is best explained as
an assertion of New York's right to apply its own “inter-
nal” law to this issue, See Panisen & Sovern, supra at
QSO-981, 792-998.
This brings us to what I coneider the fundamental error
in the holding in this case. Although the majority does not
explicitly declare that New York conld not choose to
ignore the Massachusetts wrongful death statute in its
entirety, and that New York was forbidden from applying
a form of New York “internal” law in the present case,
1 betieve its holding must lead up to that position, The
A-2%
—
Dissenting Opinion ol Origuial Panel of Court of Np ats
reference to First National Bank of Chicago N. United Aer
Lines, Inc., 342 U. 8. 396, 400 (1992), in which Justice
Jackson asked by way of rhetorical question whether the
Constitution prevents a forum state from appfring its
own law where “a transaction is so associated with one
jurisdiction” (i.e., another state), reinforces my beliet that
the majority has decided that the law of ler locus deticti
must under all cireumstanges he applied to define liability.
This conclusion is given added strength by other refter-
enees to language in opinions by Justice Holmes in two
early cases (1904)9 suggesting that foreign law, “the
source of the obligation” upon which a plaintiff “abso-
lutely” depends, must be applied in its entirety. More-
over, | would suppose that if the majority agreed that
New York could ignore Massachusetts lay in its entirety,
because (a). it chose to apply its own “internally law to a
transaction having substantial New York contacts, or
(b) because Massachusetts law is repugnant to its public
policy (which is probably another way of saying the same
thing insofar as Kilbera is concerned), it would neces-
sarily have to agree that New York eould apply Massa-
chusetts rules crcept for the obnoxious limitation on the
amount of recovery.
If this analysis of the Court’s decision is correct, the
ratio decidendi may be stated as follows: The erash of the
airplame in which Mr. Pearson was traveling created cer-
tain unalterable rights against Northeast Airlines, fixed
at the instant of the ‘disaster, and definable exclusively in
terms of then existing Massachusetts law, which may be
enforced wherever Northeast Airlines 1s found—but only
as permitted by the Massachusetts legislature.
9 Slater v. Merwan National R.R.C9..194 U.S. 120 (1904) ; Davis
«Mills, 194. U.S. 451 (1904). P
A-28
Dissenting Opmion of Original Panel of Court of Appeals
Concisely siated in this manner, the decision ism
mediately recognized as nothing more than an application
of the “vested rights” doctrine of territorial sovereignty.
This doctrine, popular among conflict of laws theorists in-
the late 19th and early 20th Century, was given color of
respectability by Jnstice Holmes in the two cases (cited
by the majority) decided almost a half century ago. But
the highly refined conceptualism: which at one time was
considered satisfactory by some authorities, has long since
ceased to command any appreciable support, and has been
discarded in modern jurisprudence." Indeed, the rejection
of the “vested rights” doctrine began as early as 1925, in
a classic opinion by Judge Learned Hand, who stated that,
.
“* * * no court cap enforce any law suit but that of
its own sovereign, and, when a suitor comes to a juris-
diction foreign to the place ef the tort, he can only
invoke an obligation recognized by that sovereign. A
foreign sovereign under civilized law imposes an obli-
gation of its own as nearly homologous as possible to
that arising in the place where the tort occurs.” (ruin-
ness Vv. Miller, 291 Fed. 769, 770 (S. D. N. Y. 1923),
aff'd, 299 Fed. 538 (2d Cir. 1924), aff'd sub nom. Hicks
= vy. Guinness, 269 U.S. 71 (1925).
The sound reasoning employed in 1923 by Judge Hand,
10 See Cavers, Comment: The Two ** Local Law’ Theories, 63
Harv. L.. Rev. 822, 823 n. 4 ( 1950) for an explanation of the ‘‘ vested
right theory and the criticism by Judge Hand and Professor Cook
which led to its rejection. ear
It is important to note that even Justice Holmes rejected the
earlier thesis, advanced by Justice Story, that foreign law actually
operates in the forum. See Story, Conflict of Laws, $23 (5 ed. 1585).
Holmes merely proposed that the liability creating event ‘* gave rise
to an obligation. an obligatiy, which, like other obligations. follows
the person, and may be enforced wherever the person may be
found.’’ Slater v. Merwan Nationat RR. Co., supra at 126.
A-29
Dissenting Opinion of Origqual Panel of Courbof Ape als
which today seems little more than a statement of the
obvious, and the manifest inconsistency and inflexibility of
the “vested rights” doctrine itself, see Cheatham, American
Theories of Conflict of Laws: Their Role and Utility, 98
Harv. L. Rev. 361, 879-385 (1945) has resulted in its virtual
abandonment. As Justice Black recently pointed out,
choice of law rifes founded on the “vested rights” doctrine
have been “repudiated by courts and commentators every-
where * * *, especially as * * * constitutional rule[s]."""
Thus, it is too late to argue that for conflict of law pur
poses, New York courts enforce Massachusetts law, or
“transitory” obligations (in the Holmes sense) arising
from it. In Kiiberg. as in the present case (in which a
federal court, with respect to the substantive law applied,
is merely another New York court), the forum “enforces
not a foreign right but a right created by its own law.”
Cook, The Logical and Legal Basis of the Conflict of Laws,
90-21 (1942). And the constitutional question is not
whether WNortheastAirlines is “unjustly” deprived of the
“protectibn” of Massachusetts law—which is not being
“enforced.” It is whether New York has sufficient inter-
est in this multistate transaction! so that it may adopt
11 Clay v. Sun Insurance Office Ltd., 363 U. S. 207, 220 (1960)
(dissent) ; see Zogg V- Penn Mutual Life Insurance Co., 276 F. 2d
a61, 865 (2d Cir. 1960): ‘(T]he Supreme Court has * * ® rejected
conceptualistic theories based upon the territoriality of vested
rights, adopting instead an approach which looks to the state *s gov-
ernmental interest in aie*** transaction.”’
12 The forum state’s interest in the multistate transaction may be
relevant not only to the state's constitutional right to apply its own
law, but to its choice of law, if it follows some version of the ‘‘sig-
nificant contacts’’ theory, see Cavers, A Critique of the Choice-of-
Law Problem, 47 Harv. L. Rev. 173 (1933) rather than mechanica:
choice cf law rules based on certain facts. In Auten v. Auten, 308
N. Y. 155, 124 N. E. 2d 99 (1954) the New York Court of Appeals
abandoned mechanical choice of law rules which depended on the
‘place of eontracting’’ or the ‘place of performance” in the area
‘>
A-30 \
Dissenting Opinion of Original Panel of Court of Appeals
a conflict of laws doctrine which utilizes legal principles
modeled on an internal statutory scheme," but created
by the state’s judiciary. As one of our leading students of
this subject has concluded on the basis of an exhaustive
review of the relevant Supreme Court cases through 1958,
“a state court’s choice of law will be upset under the Full
— ~ ———— _ ——— os
of contract law. And this court has already noted that Ai/berg may
represent ‘‘something in the nature of the Auten rule’ as applied
to tort eases. Hausman v. Buckley, 299 F. 2d 696, 704 (1962).
Rut federal courts in diversity jurisdiction must apply state
choice of law rules whether they are deemed wist or unwise. There-
fore my consideration of New York's interest in this multistate
transaction is confined to the constitutional question, although there
is necessarily an overlapping on the choice of law issue as well. A
caveat is in order: there may be sufficient ‘‘contacts”’ to give New
York the consiitutional power to apply its own law, although the
‘‘eontaects”’ are insufficient to make such action wise as a matter of
contlict of daws policy. It is true here, as in other areas of the law,
that the Constitution can permit a state to do something that is un-
wise or undesirable.
13 As the majority correctly states, the Court of Appeals in Atl-
berg did indicate that Massachusetts rules of liability were not being
discarded except for the $15,000. limitation. Moreover, since both
New York and Massachusetts authorized wrongful death suits
against common carriers, the court did not have to decide whether it
was applying the New York statute on the single issue of limitation,
or whether it was creating a common law for the ease. See Ailbery
v. Northeast Airlines, Inc., supra n. 6. However, in Davenport v.
Webb, supra, the court indicated a continuing belief that the New
York statute does not extend to accidents occurring within the geo-
graphical borders of another state. 61 Colum. L. Rev. 1497, 150°
(1961).
Although this is true, it may still be argued that in AWberg, by
striking onét the Massachusetts rules governing liability, the court
left a vacuum on the questien of limitation which could not prevent
a plaintiff from recovering it. excess of the missing $15,000. limit
A more attractive explanation is that once the court struck tre linit-
ution provision, it filled the resulting void with a rule of law allow
ing unlimited recovery, created by the court on the model of the
New York wrongful death statute. Although this may be a matter
of semantics, since the result is the same under either analysis, |
have chosenthe latter theory beeause it is more conducive to the
constitutional analysis.
A-SI
Dissenting Oparon of Origual Pane! of Court of Appeals
Faith and Credit Clause or the Due Process Clause™ only
when the state whose law is applied has no legitimate in-
terest in its application.” “Currie, The Constitution and
the Choice of Law: Governmental Interests and the dudi-
cial Function, 26 U. Chi, L. Rev. % Ta (1958). And the
validity of Professor Currie’s conelusion has been demon-
strated by a recapitulation of case law made by Chief
Justice Warren, speakingr for a unanimous court in’ the
recent case of “Richards y. United States, 369 U.S. 1
(1962) :
“Where more than one state has sufficiently sub-
stantial contact with the activity in question, the forum
state, by analysis of the interests possessed by the
14 Although the majority opinion does not discuss appellant's as
sertion that application of the Kilhberg rule in this case would
deprive it of due process of law, the close relation between that
areument and appellant's argument under the Full Faith and
Credit Clause leaves no doubt that if considered, the majority would
find a due process violation as well ‘*The areas in which these twe
clauses operate are not coterminous ® * * Yet ° ® ° the degree of
overlap is large © © ® because the essential principle underlying the
aperation of both clauses is the same; neither interferes with choice
of law except when the law applied is that of a state having ne
legitimate interest in the application of its policy to the ease at
hand.’’ Currie, op. cit. supra at 415. See Watson ¥. Emplouers
Liability Assurance Corp., Ltd., 348 U.S. 66 (1954); Weintraub,
Due Process and Full Faith & Credit Limitations ina State's Chores
of Law, 44 lowa L. Rev. 449 (1959).
rifting as I do that apiplication of Kilberg to this’case does not
violate the Full Faith and Credit Clause, I also reject the due pro-
cess argument on essentially the same grounds, although it seers
inappropriate under the circumstances to elaborate on that isste in
any detail.
15 Professor Reese has written of the constitutional limitations on
a state’s choice of law: ** Due process no longer forbids a state from
applying its own law unless it has no reasonable contact with the
transaction, and, where such a reasonable contact exists. full faith
and credit does not compel a state to apply another's law in prefer:
ence to its own.”’ Reese Full Faith and Credit to Statutes: Uhe
Defense of Public Policy, 19 1. Chi. L. Rev. 339, 342 (1952). |
4
Bs
A-32
Dissenting Opinion of Original Panel of Court of Appeals
states involved, could constitutionally apply to. the
decision of the case the law of one or another state
having such an interest in the mu!tistate activity.” /¢.,
- at 15.
Therefore, the precise question which must be decided in
this case is whether New York has a “sufficient! y substan-
tial contact” with the events surrounding the action main-
tained by Mrs. Pearson for the death of her husband in
this particular airplane crash.
It is not yet entirely clear what contacts are sufficient to
permit a state to apply its own substantive law to a wrong-
ful death action where the physical impact causing death
occurs in another jurisdiction. Cf. Note, 74 Harv. L. Rev.
357, 388 (1960). The majority, by its failure to analyze the
various interests found in the present case, would seem
to indicate that only the existence of “impact” within a
state’s borders results in a contact substartial enough to
withstand constitutional objection. But it is perfectly clear
that the ler locus delicti doctrine has not been incorpo-
rated into the fundamental law of the land by virtue of the
Full Faith and Credit Clause. In Richards v. United
States, supra, the Supreme Court held that either the state
in which impact oceurs—usually considered the locus of
the tort or (when different) the state in which the
wrongful act or omission oceurs, may constitutionally
apply its wrongful death law to the transaction. Thus, it
is immediately perceived that the majority decision is
wholly undermined unless it is construed to permit appli-
cation of the Kilberg rule in a situation where there is
16 Restatement. Conflict of Laws, $377, comment (a), Note (1),
contains this illustration; ‘‘.A, standing in state X, fires a gun and
lodges a bullet in the body of B who is standing in state Y. The
place of wrong is in Y.”’
.
-_
we
Ps
~o
Disse ating Opinion ot Original Panel of Court of Urigne als
proof that a crash resulted from negligent maintenance
of the airplane at its New York terminus. With respect
to the present case, in which plaintif® pursued a different
theory of negligence, there are other substantial inter-
ests. For iistance, a persuasive argument can be made
that New York has an interest in requiring Northeast
Airlines to maintain safe facilities elsewhere. "The con-
tention could be summarized as follows: Northeast Air-
lines is a foreign corporation authorized to do business
in New York. Pursuant to that authorization, it) main-
tains ticket offices throughout the state, and actively pro-
motes the use of its transportation facilities by New
York citizens by widespread advertising and special fares
between New York City and cities in other states. It
operates a full schedule of flights from New York air-
ports, where it) offers various additional conveniences
intended to attract patrons from competing airlines, Xs
a result of this business activity, it earns a substantial
amount of revenue from New York citizens. (Is it unrea-
sonable to suggest that New York, in order to protect its
citizens from avoidable dangers which may result in loss
of life, eae inadequate facilities maintained by the aire
line in the states to which it transports New York citi-
zens, should promote safety practices by rendering the
airline liable for the consequences of such negligence
the same manner that New York holds airlines liable for
negligent acts committed within its borders? One of the
principal justifications of tort liability is its expected of-
fect upon the standard of eare used in hazardous opera-
tions.'7 Does the majority suggest that New York has
any less interest in the airline’s safety practices when a
plane operating out of a New York airport flies a great
7 See Holmes. Common Law, 144 (1 ed. 1881).
A-34
Dissenting Opinion of Original Panel of Court of Appeals
distance over New York territory only to crash a few miles
outside of its borders (because the crew was negligent
seconds after crossing the state line) than it would if the
negligence occurred a few moments earlier?'® Yet we
are told that if the negligence occurred moments before in
New York, that state could apply its own, law regardless
of the place of the crash, See Richards vy. United States,
supra. As the New York Court of Appeals pointed out in
Kilberg, the reality of air transportation has emptied such
distinctions of real meaning.
In the present case Mr. Pearson, a New. York citizen,
boarded the airplane at a New York airport, after buying
a ticket at the airline’s New York offices. On the theory
suggested above, New York’s contact with this series of
events is clear enough, and its interest in preventing negli-
gence which would cause the airplane to erash is self-
evident. “By contrast, since there is no suggestion of
negligence-after the crash and no damage to persons or
property on the ground “it is doubtful that the application
of the ssachusetts wrongful death act in a case such as
this ** * would have any real effect on conduet within
that state.” 74 Harv. L. Rev. 1652, 1654 (1961). Certainly
18 Suppose a New York citizen embarks on a flight operated by a
foreign corporation (a citizen of another state having the same
public policy with respect to limitation of damages as New York)
hetween two cities in New York, e.g., New York City and Albany
The airline chooses a route that carries the plane over Massachusetts
territory for part of the trip. During that brief period the crew is |
nevligent and the plane crashes in the Berkshire Mountains of
Massachusetts. Must New York apply the limitation found in Mas-
sachuset!. law although that state had uo connection with the event,
except for the fortuity of a moment 's negligence and the proximity
of its mountains to Albany, when every other contact is found in
New York? Aside from the airline's interest in the financial bene-
fits of Massachusetts law, and that of its insurance company, it is
dificult to perceive how such a rule enforces **the strong unifying
principle embodied in the Full Eaith and Credit Clause.”’
ie)
AMY
Dissenting Opomron at Opianeal Pavel of Covel at Pye ats
Massachusetts did not expect: to reduee. the airline's in
surance rates by means of its statute, Northeast .\irlines
operates In mnany states, and could suffer accidents in any
of them. :
However, we need not speculate whether New York may
constitutionally use its tort law te deter an airline frem out
of state negligence intimately connected with its New York
operation, New York has a well recognized interest in the
nature and amount of recevery obtained by dependents of
the decedent in a situation such as this, regardless of the
place of injury, because the dependents are its own dom
ciliaries, Wrongful death statutes have their primary
justification in state recognition of the wrong inflicted pre
the wife and children who remain behind after the death
of the breadwinner, and its concern for their future wel
ware. 74 Harv. L. RO. 1652, 1652 (1961). In this respect,
the iestant case presents an even ctronger argument for
the A Vberd rule than the Ai/berd case itself, in which it ts
not clear that Mr. Nilberg’s dependents were New York
domiciliaries.% Furthermore, New York's interest in the
welfare of its domiciliaries extends hevond the economic
and human loss which they sustain, ‘since New York has
assumed a duty te provide for those unable te maintain
themselves. See N.Y. Soe. Welfare Law ‘131-01.
In Aleska Packers Ass'n v. Industrial dec. Comm'n of
Calif. 204 U.S. 582, 542 (1959), the Supreme Court per
mitted California te compel an employer to pay workmen's
compensation to at alien who was injured outside that
state in the course of his employment, when the alien’s
closest contacts were with California, The court noted that
unless California made suchy a remedy available, injured
persons such as the alien claimant “* * * would be remedi- |
We dee G) Colum, be. Ke. 1497, 1511 (1961)
A-36
Dissenting Opinion of Original Panel of Court of Appeals
less, and there was ‘the .danger that they might become
public charges, both matters of grave public concern to the
state.” A state’s interest in protecting its resident dotni-
‘eiliaries is no less than its interest in protecting resident
aliens; and analogous considerations suggest that the de-
pendent’s domicile has a constitttionally supportable in-
ferest in having its wrongful death policy applied. Cf.
§Note, 74 Harv. L. Rev. 357, 389 (1960): |
Further evidence of the importance of plaintiff's donii-
cile as a contact permitting application of the domiciliary
state’s law is found in Richards vy. United States, supra.
When the Supreme Court spoke of interests which would
permit a state to apply its wrongful death statute to. in-
juries sustained out-of-state, it cited, and thus app. .ently
approved, inter alia, Grant v. McAuliffe, 41 Cal. 2d 859,
264 P. 2d 944 (1953) where the forum’s law as to survival
of actions was applied to one resident’s suit against an-
other resident’s estate because of an accident which oc-
curred outside the state. It also similarly approved
Haumschild v. Continental Cas. Co., 7 Wis. 2d 130, 95
N. W. 2d 814 (1959), which applied the domicile state’s
jaw as to interspousal immunity to a tort committed out--
side the state. See also Pauisen & Sovern, op. cit. supra
at 994-998. . Finally, in Hughes v. Fetter, 341 U. S. 609
(1951), a case cited by the majority because of its hold-
ing that Wisconsin could not refuse to entertain a wrong-
ful death action based on the law of another state (under
its choice of rulés) since Wisconsin had a similar
statute of its oWl® the Court explicitly distinguished that ,
situation from a hypothetical one in which Wisconsin
merely applied its own law: Pigg
a
“The present case is not one where Wisconsin, hav-
ing entertained appellant’s lawsuit, chose to apply its
Dissenting Opinion of Oriquedl Panel of Court of ie als
own instead ot IHinois’ statute to meastire the sub-
stantive rights involved. This distinguishes the pre-
- ent case from those where we have sail that ‘Prima
facie every: state is entitled to enforce in its own
“e courts its own statutes, lawfully enacted. Alaska,
Packers Agen. v. Commission, 294 US, 582, 547": aa
U. S. 612, n, 10.
fa
I believe this passage from dlughes clearly implies that
prima facie it would have been constitutional if Wisconsin
applied its own. wrongful death law to the out-of-state
accident involved there. Even if this were not true, the
ease affords no comfort to the majority position. While
New York has no anatagonism to wrongful death actions,
‘but only fo limitation of liability, New York (unlike Wis-
consin ) does not close its doors to suits based on Massa-
chusetts rules, but merely refuses to recognize the limita-
tion, Hughes v. Fetter is therefore distinguish: hile been:
the “crucial factor” which led fo that decision, “that the
-forum laid an uneven hand on causes of action arising
within and without the forum state,” is not present. Wells
v. Simonds Abrasive Co., 345 U. S. 514, 518 (1953).
The majority dismisses the Wells case as being unper-
suasive in the case at bar. In Wells, the Supreme Court
manifested obvious willingness to allow states broad
power in choice of law matters within the framework of
the Full Faith and Credit Clause. The court held that
Pennsylvania could apply its own’ statute of limitations
as a bar to a wrongful death action based on Alabama -
rules of substantive liability (because the impact was in
Alabama), although Alabama had provided a longer stat-
ute of limitations in the same statute that created the
cause of action. As the Wells opinion recognized, and as
this Court has explained, a “built-in” statute of limita-
o
-
~
A-38
Dissenting Opinion of Original Panel of Court of Appeals ~
. : ¥
tiens such as that found ee wrongful death
statute is generally*@nsidered part of the substantive law
of liability. Thus, Wells cannot be distinguished on the
grounds that a statute of limitations is merely procedural,
and the forum applies jts own procedure. See Hausman vy.
Buckiey, 299 F. 24 696, 701 (2d Cir. 1962). Nor is the
majority’s attempt to distinguish Wells on: the theory
that a plaintiff can choose any forum (presumably the
forum with the longest statuft of linyitations), whereas
the defendant “will be treated unjustly” if deprived of the
“protection” of Massachusetts law. . Implicit in-the Wells
decision was a holding that Pennsylvania could apply its ~
own statute of limitations, even if it were longer than that
provided in the Alabama statute. The Supreme Court
explicitly and without qualification stated that the “inini- -
mum requirements” of the Full Faith and Credit Clause —
do not “compel the forum sfate to use the period of limi-
tation of a foreign state.” 345 .U. S. 516-517. And see the
dictum by Justice Brandeis in Home Ins. Co. y. Dick,+281
U. S. 397, 409 (1930): “It is true that a State may extend
the time within which suit may be brought fin its
courts * * * And * * * the loeal statute of limitation may
be applied to a right created in another jurisdiction even
where the remedy in the latter is barred.” If Pennsylva-
‘nia could allow a plaintiff to recover for wrongful. death
under Alabama rules, although Alabama, the lex locus
delicti would permit no recovery whatever, how does New.
York violate the constitution when it merely refuses to
follow a Massachusetts limit on the amount of recovery?
Moreover, as I have already pointed out, Northeast Air-
lines is not being “deprived” of any legitimate defense.
The application of only one state’s law to a dispute -
“served’no federal end other than re the —
oe
qo
Dissenting Opacion of Oriqual Panel of Court of Nyy als
‘expectations of the parties and. preventing forum shop-
ping.” 74 Harv. °L. Rev. 1652, 1655 and authorities cited
-in n. 24. As I have also noted, Northeast Airlines must
be prepared for losses resulting from acetdents in any
‘of the states in which it operates aircraft; it does not,
and obviously could not rely on the fortuity of a Massa-
chusetts crash. A short answer to-the objection against
forum shopping is that such coffsiderations were hot he
lieved to be of constitutional stature by. the Supreme
Court in Wells. A more elaborate response would sugvest
-that while possible forum shopping is a consideration re-
lating to selection of one choice of law rule rather than
another, it is not the only consideration. Clearly a.state
should be able to define the basic ends Tor which its
judicial system may be used. There is nothing in the
Constitution which renders the judiciary ef New York or
any other state in this country similarly situated impotent
because Massachusetts adheres to a policy -which they find
to be “absurd and unjust.” As Lord Ellenborough said in
that classic protest against unwarranted extension of a
sovereign’s power, “Cari the island of Tobago pass a law
to bind the rights of the whole world? Would the world
_ submit to such- an assumed jurisdiction?” Buchanan ve
Rucker, 103 Eng. Rep. 546, 547° (K. B, 1808). The states’
have not surrendered their legitimate interests in multi-
state activities to the exteni the majority has declared.
And, “in the tort action before us, there is little reason
to impose a ‘state of vassalage’ on the forum.”*°
It is significant that in a number of eases this Court has
applied the choice of law rule announced in another recent
decision by the New York Court of Appeals. See Auten v. |
ane. 308 N. Y. 155, 159-61, 124 N. E. 2d 99, 101-02
'uahe *. Fetter, supra, at 617 (Frankfurter, J. dissenting).
— o
¢ A-40)
Dissenting Opovon of Original Panel of Court of Appeals
(1954). The A uten case has replaced mechanical choice of
law rules formefly used in the field of contract law with
the more modern “significant contacts” theory. Under the
new rule it i& possible that a contract entered into by two
parties in Aassachusetts will be governed by the contract
law of New York because, at the time an action on the .
* contract is brought, New York has more significant con-
tacts with the transaction. This result is. possible even
though the parties never supposed that New York law
would apply when the contract was. written. See e.%« Zong
vy. Penn Mutual Life Ins, Co., supra, n. 11. It is difficult
to understand how my brothers in the majority, who par-
ticipated ard éoneurred in a number, of the previous deci-
sions of this Court applying the Auten rule, see cases
cited in Hausman v. Buckley, supra, at 704, n. 12,2! are
now concerned about the constitutionality of the Kilberg
cule—hecause it deprives a tortfeasor of the benefits of a
law upon which the tortfeasor could not rely.
Since Auten, by contrast, will often result in the appli-
cation of the contract law of a state upon which parties
did in fact rely, the present decision scems to suggest that
Auten will also be sent to its demise because of some eon-
flict with inexplicable considerations purportedly derived
from the “unifying principle” of the Full Faith and Credit
Clause. If this is true, I am concerned that experimenta-
tion in the field of conflict of laws will come to an abrupt
ofid. As adroitly stated by a leading constitutional
authority, Professor Paul A. Freund,
“If the task of Conflict of Laws is to understand,
harmonize, and weigh competing interests in multi-
21 In at least one instance the Auten rule was ‘‘horrowed’’ in the
formulation of ‘‘federnal common law.”’ Purofied Down Products
Corp. v. Travelers Fire Ins. Co., 278 F. 9d 439 (2d Cir. 1960).
Disse nting Open op a ‘ty ‘ail Prarvice } at (‘en vf at 1), vals
state events, and if the desideratum of uniformity will
be approached most satisfactorily by evolving rules
that deliberately seek these objectives, then we seen
to be hardly ready for a set of precepts imposed in
the process of Supreme Court decision as fixed canons
of constitutional law.” Frennd, Chief Justice Stone a
the Conflict of Laws, 59 Harv. L. Rev, 1210) 1255-36
(1946). |
I believe that the dull-conformity which may result from
the use of the Full Faith and Credit Clause as a strail-
jacket confining the body of conflict of laws doctrine is far
less desirable than the results which may be achieved by
a more flexible interpretation of the Constitution. See
Note, 30 N. Y. U. L. Rev. 984, 992 (1995).
One additional problem remains to be considered. Judge
MecGohey refused to:apply the Massachusetts standard of
measuring damages, which bases an award on the degree
of the defendant's culpability rather than the- extent of
the pecuniary loss sustained by the dependents (which is
the New York standard). Appellant argues that Kilberg
does net require such disregard of the Massachusetts rule.
I disagree. Although New York has no policy against an
award of pre-judgment interest from the date of the serv-
ing of a writ (Mass.) rather than the date of death (N.Y.),.
see Davenport v. Webb, supra, its policy against limita-
tions on the amount of damages is necessarily applicable —
with like force to the standard by which the amount of
damages is-galculated. .
The Supreme Court has pointed out in a converse situa-
tion involving the applicability of the limitation provision
of the Massachusetts law, “* * * where punitive damages
only are allowed for wrongful death, a limitation on thy
amount of liability has no relevance to the policy of plac-
ei}
4
pan gone!
ee
.
° A-42
Dissentine Opinion of Or cial Panel of Court of Appeals -
ing limits on Jiability where damages are. only compensa-
tory.” Mass. Bonding & Ins. Co. v. U. S., 352 U. S. 128,
133 (1956). Similarly, having dispensed with the limita-
tion, the culpability standard has no meaning. Under the
Massachusetts rule, although the defendant has breached
his duty of due care, the jury may award a minor amount.
of damages because the negligence was, so to speak, “not
too bad.” A jury may be able to determine (by some
vague and indefinite standard) the effect of relative
degrees of culpability. on the amount to be awarded, be-
cause, presumably, $15,000. represents the amount to be
awarded where the worst behavior causes death. See
Mass. Bonding & Ins. Co. v. U. S., supra. But the appli-
eation of the Massachusetts standard when there is no.
limit on the amount of recovery can only result in a
purely speculative award. Moreover, the standard of
culpability, by its total disregard for the injury actually
sustained by the decedent's dependents, violates the pri-
mary purpose of most wrongful death legislation, includ-
ing that of New York, which is concern for the pecuniary
loss of the beneficiaries who remain behind. See 2629,
supra. Thus, Congress rejected it as a basis for measur-
ing federal government liability for wroneful deaths, result-
ing from negligence of its employees in Massachusetts.
Mass. Bonding & Ins. Co. v. U. S., supra. For these
reasons, I believe that New York courts would not apply
the Massachusetts culpability standard, and would adopt
the pecuniary loss. standard used by Judge MeGchey on
an analogy to the New York statute.
Therefore, I would affirm the judgment below, with such
modification of the award for interest as may be required.
AA
Opinion of Court of Appeals En Banc
UNITED STATES COURT OF APPEALS
For ruk Secoxp Cirever
No. 297——September Term, 161
_ (Argued before the panel April 11, 1962
| Panel Decision July 11, 1962.
Rehearing en bane ordered September 13, 1962
Rehearing én banc decided November 8, 1962)
Docket No. 27350 ‘
>.
_>
-Marityn -W. Pearson, as Administratrix of tlie Goods,
Chattels and Credits of John S. Pearson, deceased,
7 Plaintitf-Appellee,
V.
NortTueast AIRLINES, LNC., .
Defendant-Appellant.
Ln.
~~
Before: Lumparp, Chief Judge,
aS
CuarK, WarTermManx, Moore, Frrenpiy, SMITH,
KavurMan, Hays and MarsHa.t, Circuit Judges.
&
Appeal from a judgment of $160,204.65, entered upon a
jury verdict in the United States District Court for the
Southern District of New York, McGohey, J. The judge
“
A-+4 .
\ ,
“Opinion of Court oft Appeals En Bane |
ruled, on a motion to limit damages, that “the $15,000
i te . . .
9. limitation of the wrongful death-statute of Massachusetts,
where the death occurred, . Was inapplicable. Judgment
affirmed ax modified. ;
. ry
2
Haircut, Garpner, Poor & Havens, New York, N.Y.
cA (William J. Junkerman and Douglas B. Bowring,
New York, N.. Y., of eounsel) for defendant-
appellant . :
Frank G. STERRITTE, New York, \. Y., and: SPEIsER,
o SHUMATE, GEoGHAN & Law, New York, uN: i.
(Stuart M. Speiser and Florindo M. Deglosa,
“ New York, N. Y.,. of counsel) for plaintitt-
appeliee. ee
6
KaurMay, Circuit Judge, with whom Judges CLARK,
Warerman, Surry, Hays and MarsHaLiL concur:
>
_)
The principal question considered by this Court em banc:
is whether a federal court sitting in the state of New York
may constitutionally “apply” & Massachusetts statute giv-
ing a cause of: action for wrongful death and refuse, for
reasons of state policy, to fallow a provision of that statute
which would limit the plaintiff’s recoyery to $15,000. The
question arises in an action for wrongful death occasioned |
by a plane erash 1. Massachusetts. The action was brought
in the United States District Court for the Southern Dis-
trict of New York, and was triétl before Judge MeGohey.
The judge ruled that plaintiff's recovery was not bound by
the arbitrary limit of $15,000 provided by ‘Chapter 229,
A 45
s
° Opinion of Court of Appeats En Ban ’
asection 2, of the Massachusefts General Laws:! dn. se
dsing he relied on the holding. of the New York Court of
Appeals, in Kilberg vy. Northeas! Airlines, Inc. 9 N.Y. 2d
84+ (1961). The jury thereafter awarded damages well in”
excess of the statutory maximiwn and judgment was ene"
tered accordingly.2. From this adverse judgment, the, de-
fendant airline appealed’to this Court, clainiing, iter
alia, that the ‘recovery should have: been limited, as a
matter of law, in accordance with the Massachusetts
statute. The appeal was first heard by a panel of thi-
Court consisting of Chief Judge Lumpayd, Judge Swan
and this writer... A majority of that Qanel held, over my
dissent, that the Fui! Faith and Crédit) Clanse of the
United States Constitution? barred New York courts, and
a federal court hearing an action brought in New York
by virtue of ‘diversity -jurisdietion, from awarding wn-
1 Péarson v. Northeast Airlines, Inc., 199 F. Supp. 939 (SPINY
1961). a ;
_ This section of the Massachusetts General Statutes reads: °° Dam
ages for death by negligence of common earrier. If the proprietor
of a common earrier of passengers * * * causes the death of a pas
senger, he or it shall be liable in damages in the stim of not less
than two thousand nor-more than fifteen thousand dollars, to be
assessed with reference to the degree of cupability of the defendant
or of his or its serVants or agents, and recovered and distributed as
provided in section one, and to.the use of the persons and in the
proportions, therein specified.”
_ The Ratute has since been amended to raise the upper limit of
recovery to $20,000. Mass. Gen. Laws Ann. Ch. 229, $2) (Supp.
1961). :
2'The jury brought in a verdict in the sum of $134,043.77. The.
court’s judgment was later amended to include an additional‘,
$26,160.88 of interest. *
3 Article IV., Section 1. ‘*Fuil Faith and Credit shall be given
in each State to the Public Acts, Records, and Judicial Proveed-
ings of every other State. And the Congress may by general laws
prescribe the manner in which such Acts, Records and Proceed-
ings shald be proved, and the effect thereof.”’
A-46
Opinion of Court of Appeals Een Banc
limited recovery in & lawsuit “based” upon the Massa-
chusetts statute4 The issue being one of great signifi-
cance—the constitutional power of the states to develop
conflict of laws doctrine—it was ordered, upon applica- :
tion by the plaintiff-appellee and the affirmative vote of
a majority of the active judges of this cireuit, that the
appeal be reheard en bancS ‘
As a consequence of this rehearing and extensive
reconsideration of the issues and pertinent authorities, six
active judges of this Court have reached a. conclusion
contrary to that of the majority of the original. panel, and
adopt this writer’s dissent from the opinion of “the panel,
4
appearing at 307 F. 2d 136 (1962). We hold that the rul-
ing of the New York Court of Appeals in Kilberg was 8
proper exercise of the state’s power to develop conflict.
of laws doctrine; and the court’s refusal to ee
limitation of recovery ‘provision in the Massach
statute a constitutional exercise of such power. The judg-
ment ofgthe District Court is therefore affirmed, as modi-
fied in accordance with the panel’s unanimous holding on
the issue of pre-judgment interest. This issue requires no
further discussiop.®
Several additional ‘considerations which we shall dis-
cuss, convince us that the conclusion we have reached is
compelled. | ea
The essential facts are not in dispute. Marilyn W.
Pearson, widow and administratrix of the estate of John
S. Pearson, and a citizen and domiciliary of New York,
eommenced the present action against Northeast Airlines,
4 Pearson V. Northeast Airlines, Inc., 307 F. 2d 131 (2d Cir.
1962). . : :
5 See 28 USC. §46(c) (1958).
6 See 307 F. 2d at 136.
o
Opinion at Court a! Ap) calle Bn |
AAT
Inc, to recover damages for the death of her husband,
allegedly caused by the defendant’s negligence. Northeast
Airlines is a Massachusetts corporation authorized to do
business in New York. Pursuant to that authorization, it
maintains ticket offices throughout the state, and actively
_. promotes the use of its transportation facilities by New
York citizens by means of widespread: advertising. lt
operates a full schedule of flights from New, York airports |
and earns a substantial amount of revenue from, New York
citizens. The decedent, a New York citizen and domicil-
iary, purchased his flight ticket at thé New York offices of
Northeast Airlines. He boarded the Northeast plane at La
Guardia .Airport, in the City of New York, hound for
Nantucket Island, Massachusetts, and on the evening of
August 15, 1958, the decedent's plane crashed in the viejn-
ity of Nantucket.
Another action, having no connection with the Pearson,
family, had already been maintained in the courts of the
State of New York by the administrator of Edward J.
Kilberg, also a passenger on the same ill-fated flight to
Nantucket.?. The highest court in New York ruled in that
ease that the action, by virtue of New York choice of law
rules, was properly founded upon the liability created by
the Massachusetts Wrongful Death Act. It stated, how-
ever, that New York courts should, if appropriate, award
7 Kilberg v. Northeast Airli® Inc., supra.
This case has, in the short period of time since its resolution,
garnered an inordinately large amount of space in legal periodicals,
See 25 Albany L. Rev. 315; 15 Ark, L. Rey. 187; 41 B. U. L. Rev.
957 ; 27 Brooklyn L. Rev. 336; 49 Calif. L. Rev. 187 ; 61 Colum. L.
Rev. 1497; 46 Cornell L. Q. 637 ; 30 Fordham L. Rev. 170; 49 Geo.
L. J. 768; 74 Harv. 1. Rev.«1652; 36 N. Y. U. L. Rev. 723; 37
Notre Dame Lawyer 194; 15 Rutgers L. Rev. 620; 35 St. John's
L. Rev. 357; 12 Syracuse L. Rev. 395; 28 U. Chi. L. Rev. 733; 39
U. Cin. L. Rev. 511; 15 Vand. L. Rev.871; 47 Va. L. Rev. 692.
WES -«
A-48
= 0
Opinion of Court of Appeals En Banc
damages in excess of the statutory $15,000 maximum re-
covery required by the Massachusetts statute. Funda-
mental New York policy, given expression by a state con-
stitutional provision prohibiting the New York legislature
from enacting any such limitation, was held to prevent
New York, courts from applying the limitation by means
of court-made law. The court emphasized that the limita-
tion was deemed by the 1894 drafters of the state constitu-
tion to be “absurd and unjust, in measuring the pecuniary
value of all lives, to the next of kin, by the same arbitrary
standard.”7® In effect, the Court of Appeals of the State
of New York, in Kilberg, fashioned a rule of law allowing
recovery of damages without arbitrary limit, modeled on
the New York Wrongful Death Statute,’ although the
Massachusetts statute still served as the foundation for
plaintiff's cause of action for wrongful death. Judge
McG@ohey, constrained by the edict of Klazon Co. v. Sten-
tor Elec. Mfg. Co., 313 U. S. 487 (1941), and Erie R.R: v.
Tompkins, 304 U. S. 64 (1938), properly applied the
principles of New York conflict of laws enunciated in
Kilberg and declined to recognize the Massachusetts limita-
tion upon liability. -%& |
This writer has already criticized the argument ap-
‘parently adopted by the panel opinion, that New York
was constitutionally disabled from applying its own sub-.
stantive rules of law to a cause of action arising out of
a plane crash in Massachusetts. See dissent, 307 F. 2d
at 136. Although Judge Swan did not expressly approve
this proposition of constitutional law, the inference seemed
~ Ta See Medinger v. Brooklyn Heights R. R., 6 App. Div. 42, 46, 39
-N. Y. Supp. 613, 616 (1896).
8 See note 13 of this writer’s dissent from the panel opinion. 307
F. 2d at 141.
A-AY
Opinion of Court of Appeals Ln Banc aie
inescapable that, in /effegt, the panel majority had exalted
the lex loci delictus\ to constitutional status with the con-
sequence that New York was barred from applying the
whole or any part of its own wrongful death policy to the
events occurring in Nantucket.9, If this is indeed the
rationale of the panel’s opinion, then it is the first decision
to “freeze” into constitutional /mandate a choice-ot-law
rule derived from what may be described as the Ive Age
of conflict of* laws jurisprudence—at a time when that
jurisprudence is in an advanced stage of thaw.% A
majority of this Court rejects this rationale*for the same
reasons which prompted this writer to reject it in his
dissenting opinion. | .
It is suggested, however, /that a different constitutional
analysis supports the result reached by the panel. The
proponents of this analysis are willing to assume that New
York’s “contacts” with the transaction are sufficient to
support an application of New York’s entire wrongful
death statute to this accident although it oceurred outside
the territory of New York. In adopting this approach they
-would concede that the facts of this case—i.e., (a) Mr.
Pearson’s purchase of his airplane ticket at a New York
office of a foreign corporation doing a large part of its
business in New York; (b) his attempt to travel from New
York, where he was domiciled, on a regularly scheduled
flight most of which was conducted over New York; and
(c) the New York dothicile of his wife, administratrix and
beneficiary under the Wrongful Dea Act—are so closely
related to the State of New York that it would have the
constitutional power to apply its own wrongful death law
9 See 307 F, 2d at 139-40.
98 See, e.g., Hausmgn v. Buckley, 299 F. 2d 696 (2d Cir. 1962) ;
Zogg Vv. Penn Mutual Life Ins. Co., 276 F. 2d 861 (2d Cir. 1960).
o
Pa ; eee
A-50.
?
Opinion of Court of Appeals En Banc
to this litigation. _ However, the proponents of this con-
stitutional analysis would deem it contrary to the mandate
of the Full Faith and Credit Clause if New York were to
entertain a claim for wrongful death “under” the Massa-
_chusetts act but apply New York principles governing the
extent of permitted recovery. In summary, they urge that
once a New York court recognizes a claim for wrongful
death based on Massachusetts law, that law must control
every incident of the claim. They argue that New York
is not required to give any faith or credit to the Massachu-
setts act, but once it gives ‘Massachusetts ‘law some farti~
and credit it must also give it full faith and credit.
We find this construction of the constitutional mandate
untenable. Despite the resourceful arguments put forth in
its behalf, we are not persuaded that’ a statutory limitation
upon the amount of money that may be recovered should
_ merit any greater obeisance than statutory limitations ad-
- - dressed to the length of time during which the action may
besbrought, or to the parties who are empowered to bring
that suit, or to the survival or abatement of the fuse of
action upon the death of the injured party. In each in-
stance the statute qualifies the rights and obligations to
which the statutory cause of action gives birth.
We are directed to no precedent, and are unaware of
any compelling logic independent: of precedent, which
requires a state to enforce such statutory qualifications
whenever it chooses to recognize a foreign-based cause of
action.!© For example, the cases are numerous in which
10 Most of the cases urged on behalf of the principle that the
maximum-liability provision is an inseparable part of the right
and therefore must be enforced by the forum are relics of the
vested-rights theory! sufficiently discussed by this writer in 307
F. 2d at 140-42. See e.g., Davis v. Mills, 194 U. S. 451 (1904) ;
Slater v. Merican National R. R., 194 U. S. 120 (1904) ; Northern
A-ol
Opinion of Court of Appeals Ln Bane
a forum state applies its own statute of limitations despite
the fact that a limitations period of different duration is
expressly incorporated in the statute of the foreign juris-
diction creating a cause of action. See, eg. Bournias v.
Atlantic Maritime Co., 220 F. 2d 152 (2d Cir..1955). This
is usually accomplished by referring to the statute of
limitations as involving mere “procedure” and not “sub-
stance’, The niceties of such legal legerdemain do nat
concern us; it is the result that speaks londly. The Su-
preme Court has specifically held that a state does jot
Pac. ROR. ¥. Babcock. VEU. S. 190 (1894). Tt should: further
be noted that the Court in these edtes analyzed the problem in
terms of a proper independent choice-of-law by the federal courts,
before the advent of Erie vo Tompkins; they therefore hardly deter-
mine the quession whether a state has constitutional power to
anaivze coatliet of laws questions in terms of separate issues.
One of the cases urged most forcefully in support of ‘the consti-
tutional analysis under diseussion is Order of feyited Commerical
Travelers of America ¥. Wolfe, 331 US. 586 (1947). It was there
held that a South Dakota court enforeing rights created by the
constitution of a fraternal benefit: association incorporated under
~Ohie law had to apply Ohio law regarding tie statute of limita-
tions. But the Supreme Cougt did not. in that ease, say that South
Dakota could have completely ignored Ohio law and applied its
own and that once having applied Ohio law on contract rights it
also had to apply Ohio law regarding the statute of limitations.
What the Court did do there avas actually to comparg and balance
the interests and contacts of South Dakota and Ohio; it held that
the interests of the former were not as significant as those of the
latter and that. under the Full Faith and Credit: Clause, Ohio |
Jaw had to be fully applied. To that extent, we consider Wolfe to
have been superseded. by Richards vy. United States, 369 U.S. at
15, ‘Where more than one state has sufficiently substantial con-
tact with the activity in question, the forum state, by analysis of
the interests possessedeby the states involved, could constitutionally
apply to the decision of the ease the law of one or another state
having such an interest in the multistate activita.”’ si
At any rate, Wolfe dealt with an admittedly unique situation,
the relationship between members of .a fraternal benefit society.
The Court’s own language leads us to believe that Wolfe would
not be controling in this case. “See 331 U. S- at 609-06, and at
641-42 (dissenting opinion).
A-52
Opmion of Court of A ppeals En, Bane
violate the Full Faith and Credit Clause in applying its
statute of limitations so as to bar a cause of action still
viable in the locus delicti, See Wells v. Simonds Abrasive
Co., 345 U.S. d+ (1953). The Wells case tells us that
this is true even though the forum state is refusing to
apply a statute of limitations “built into” a statutory
cause of action tor wrongful death as an “integral” or
“substartive” provision,
Despite the effort in Wells to pierce to the core of the
constitutional issue rather than:be oceupied by mere labels,
we are told that the case is not controlling in the litiga-
tion before us, because statutes of Jimitations involve
merely matters of “procedure”, of judicial house-keeping.
We are further told in buttress of this proposition that
it is sheer verbiage to say that the difference between a
right limited to $15,000 and one that may run to $160,000
is mere “procedure”. But the verbiage is equally thin
that would explain any constitutional distinetion between
time limitations and dollar limitations as one between
“procedure” and “substance”. It is true that one of the
purposes of the statute of limitations is to relieve a court
system from dealing with “stale” claims where the facts
in dispute oceurred long enough avo that evidence is either
forgotten-or manufactured, But the wide variety of statu-
tory periods cannot be explained solely on the basis of
stale evidence, There is no doubt another element, of a
more “substantive” character, which might be described
as a concern for the interests of the potential defendant."
11 There can be no doubt that statutes of limitations embody a
eoncern for the speedy disposition of claims within a reasonable
period after their origin, for the protection of the defendant froue
protracted fear of litigation?’ This seems to be the very reason that
the period of limitations in wrongful death cases is usually shorter
than that of the ordinary action of necligent torts. The fact that
~
pau
: A-98
Opinion of Court of Appeals Bu Bane’
We do not rest, however, on cases ‘upholding the con-
stitutional power of the forum te disregard the statute
of limitations of the locus delictt. The Supreme Court
has, within the past year, cited with appreval two cases
emanating from the highest ‘courts of two of our states
which applied a rule of: local law to govern an ineident
of a cause of action’ based upon the law of a foreign
state. See Richards Vv. Uniter States, 369 U. S. = 12 n.
26 (1962). In Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.
2d 944 (1953), Judge Traynor, speaking for the Cali-
fornia Supreme Court, held that although the cause of
action for personal injuries was based upon Arizona law,
the matter of its survival or abatement was sufficiently of
local concern to be governed by the law of the forum.
In Haumschild v. Continental Cas. Co., 7 Wis, 2d 150, Qh
N.W. 2d 814 (1959), the second case cited with approval
by the Supreme Court, the law of the forum and of the
parties’ domicile as to interspousal immunity was applied
to a tort committed outside the state. Surely these cases
cannot be dismissed with an invocation of the substainee-
procedure dichotomy. | .
Our decision cannot, therefore, be interpreted) to con-
done a forum's appiving.its own rules in a wanton manner
by labeling matters “procedural” while arbitrarily choos-
statutes of limitations ‘in wrongful death actions are usually de-
nominated ‘‘substantive’’, see Retatement, Conflict of Laws $3897,
clearly reveals thate the policies they embody are not merely those
of judicial housekeeping. Compare N.Y. Dee. Est. Law $150
(two-year period of limitations for wrongfnl death action) with
N.Y. Civ. Prac. Aet $49 (three-year period for negligent injury
to property or person). That ‘stale evidence’ is not the only
reason for statutes of limitations is corroborated by the fact that
the very same complex of facts may give rise to both a cause of
action in contract or quasi-contract and a cause of action in ¢ort;
it is almost universally true that the statute of limitations on each
such cause of action will differ in length. See Restatement, Torts
§ 899, Comment b.
lo]
A-54+
Opinion of Court of A ppeals En Bane—
ing the parts of a foreign statute it wishes to enforce by
labeling them “substantive”.!2 We do hold, however, that
a state with substantial ties to a transaction in dispute has
a legitimate constitutional interest in the application of its
own rules of law. If, indeed, those connections are wholly
lacking or at best tenuous, then it may be proper to con-
clude that the state has exceeded its constitutional power
in applying its local law. See, e.g., Home Ins, (oo. V- Dick,
981 US. 397 (1930); Currie, “The Constitution and the
Choice of law: Governmental Interests and the Judicial
Function,” 26 U. Chi. b. Rev. 9, 75 (1958). But that is,
ex hypothesi, not the ease before us.
The argument advanced, that once New York gives
some faith and credit to the Massachusetts statute it must
give it full faith and eredit—that is, each incident of the
cause of action must be enforeed precisely as defined by
the statute creating it—is not new. Indeed, it has been at-
tucked as unsound by one of ‘our leading scholars in the
field of conflict of laws. Professor Currie has deseribed it
as a natural argument for someone “schooled in the as-
sumption that the law of one and only one state must gov-
ern the whole of any transaction ° ee «The Constitution
and the Choice of Law: Governmental Interests and the
Judicial Function”, 26 U. Chi. L. Rev. 9, 68 (1958). That
underlying assumption is inconsistent with the views @x-
pressed by the Supreme Court as long ago as 1984, when
Alaska Packers Ass'n. V. Industrial Accident Com mission,
994 U.S. 532, was decided. In that ease the Court expressly.
recognized that rights asserted under the statute of one
12 Much of the language in Kilberg classifying the maximum-
liability provision as procedural micht have appeared to some to
be just such a subterfuge. But this language has since been dis-
regarded by the New York Court of Appeals and Kilberg inter-
preted as an affirmation of a strong state publie policy. See
Davenport v. Webb, 11 N.Y. 2d 392 (1962).
A-o
Opinion of Court of Appeals Bu Bane
state may necessarily be“denied or qualified by the law of
another.
“The necessity (to decide the extent ‘to Which the
statute of one state may quality or deny rights
asserted under the statute of another’) is not any
the less whether the statute and policy of the forum
is set up as a defense to a suit brought under the for-
eign statute or the foreign statute is set up as a de-
fense to a suit or proceedings urder the local statute.
In either case, the contliet is vhe same. Tn each,
rights claimed under one statute prevail only by
denying eifect to the other. In both the egubict ix to
be resolved, not by giving automatic effect te tre; full
faith and credit clause, compelling the courtsséf each
state to subordinate its own statutes to these of the
other, but by appraising the governmental anterest=
of-each jurisdiction, and turning the scale of decision
according to their weight.” 204 UL S. at 547.
The decision we reach seems to be in keeping with a view
of the Constitution as a primer of fundamental principles
for the conduet of a developing federal system rather than
a manual of technical rules. The Supreiie Court wa- rained.
ful of this when it recentlyspronounced
“As a consequence of the modern practice of con-
ducting widespread business activities throughout the
entire United States, this Court has inoa series of
cases held that more states than one may setae hold
of local activities which are part of niuitistate trans
actions and may regulate to protect: interests of its
own people, even thoneh other phases of the same
transactions might justify regulatory lecislation in
A-56
Opinion of Court of Appeals En Banc
other states. Watson vo Employers Liability Corp.
348 U.S. 66, 72 (1994). +
We construe this as recognizing that a single “transac-:
tion” may contain within itself several distinet “issues”
legitimately made subject to the law of more than one
state. |
True, New York reiterated: its partial adherence to the
rgle of lex loci delictus. But does this require that New
York be deprived of any power to apply a fundamentai
rule of public policy to one incident of the cause of action!
“New York has done nothing more than to apply a trad.
tional choice-of-law rule which designates the law of Mas
sachusetts as the soyree of liability fora wrongful death.
It has absorbed the Massachusetts rule into the corpus of
————Xew_ York law for purposes of adjudicating this case fairly.
See Sicgmann v. Meuer, 100 F. 294-367 (2d Cir. 1938);
Ciuinness v. Miller, 20% Fed. 769 (S. D.N. Y. 1923) (L.
Hand, .J.), aff'd], 200 Fed. 538 (2d Cir. 1924), aff'd sub nom,
Hieks v. Guinness, 269 U.S. 71 (1925); Cavers, “The Pwo
‘Local Law’ Theories.” 63° Harv. 1. Rev. wD (1950);
Cook, “The Logieal and Legal Bases ot the Conflict of
Laws.” 32 Yale L. J. 497 (1924). We believe that in deine
eo New York is not bound-to model ai of the rules gowern
“4 ine this litigation in which it is conceded it has a lewitimuate
interest, on Massachusetts law. We are convinced that New
York may examine each issuc in the litigation —the con-
duet which creates liability, the parties who may bring an
action, the extent of liability, the period during which the
liability may be sued upon, and in appropriate cases, mat.
ters of immunity, insurance procedare, ete. —and by weigh-
ing the contaets of various states with the transaction, New
York may, without interfering with the Constitution, shape
its rules controlling the litigation.
ALT
Opinion af Court of Lippe als Bu Baus
Tt is argued in the dissenting opinion that the deeision
we reach today will result in an unwarranted invasion by
New York of Massachusetts’ freedom of action, and that
henceforth ro state can legislate without incurring the risk
that the courts of a sister state, having some contact with
the transaction, will use its law te reach a result never
intended by the legislators. We find these arguments
uncouvineing becanse they rest on a premise with a vers
dubious constitutional underpinning. We may concede
that the Wrongful Death Statute of Massachusetts, almost
certainty designed with an eve toward the regulation of
occurrences transpiring wholly within’ Massachusetts,
sheuled he honored fully amd completely when the ineitent
urder litigation is a loeal one. Such, we take it. is the
import of Mome Ins. Co. ve Dik, 281 US. 890 Cae
But we cannot concede that Massachiusett= has a constitu
tionally protected claim to the unquaiifed appheation of
its statrte im cases with an overwhelmingly interstate
favor.) The adoption ef such a principle would effeet an
incursion by Massachusetts upen the publie polices hf
New York far more serious than the purported memrsien
upon Massachusetts policy whieh we have upheld today,
i ha othe converse situation. Massachusetts courts have lone
utilized the public pobossargument as a teats of etjarebonw Missa
chysetts interests in multistate transactions. See S07 Blab at 104,
n & The interstate flavor of modern air transportation is well cde:
scribed in the Kilbery case, ON Yo 2d at 29, 211 NUYS. 2d at 5
“Modern conditions make it onjust and anomalous te subject the
traveling citizen of this State to the varying bows of other States
throagh and over whieh they [sie) move © °° An air traveler
from New York may in a tight of a-few hours) duration pits
through several * * * comimonwealths His plane may meet with
disaster in a State he never intended to cross but ito wheel the
plane has flown becatse of bad weather or other unexpected deve
opments, or an airplane's catastrophic deseent may begin in cone
State and end in another. The place of injury becomes entirely
fortuitous.
A-DS8
Opinion of Court of Appeals En Bane
If Massachusetts local rules must, by constitutional com-
pulsion, govern every aspect of a transaction so intimately
affecting the interests of New York, then the concept of
full faith and eredit is being utilized as.an extraordinary
example of oppressiveness to. legitimate and lawful state
interests.
The constitutional assault upon the AKilberg principle
bas not been limited te the Full Faith and Credit Clause,
however. We are likewise told that it violates the Due
Process Clause of the Fourteenth Amendment 44 In order
that the latter clause be violated there must be some
deprivation of life, liberty, or property. It is arcued that
our deeision deprives the defendant of property. But to
assert that Northeast. Airlines is being deprived of its
“property” is to assume the very point in issue, Le, that
Northeast is given ‘Some vested property right by the
application of the Massachusetts ruic of liability ter
wrongful death, This writer has already stated in his
panel dissent that no such vested right exists. See S07
#. 2d 140-42.
This “deprivation of property” argument Hiiy also
explain a purported distinetion urged upon Us, which is
drawn between the case before us and some of the earlier
Supreme Court cases, such as Wells v. Simonds Abrasive
Co. 343 U.S. 514 (1998). This distinction was expressed
in the majority panel opinion in this case in this fashion:
“Tn Wells the plaintiff was not deprived of all
remedy; he could sue in any state where defeudant
could be found and which has a longer statute 0!
limitations than Pennsylvania [the forum | or follows
a different confliets rule. In our cause defendant had
no choice as to the forum. If deprived of the proter-
oe
14:-¢ © © nor shall any State deprive any person of life, hiberty,
or property. without due process of law a
A-nt *,
Opmion of Cart of Appe als En Bave
tion of the limitation imposed by, the law which, as
Ailberq recognizes, created the: Labilitw, he will be
treated ubjustiv.” 307 FL 2doat dao. .
In short, it is argued that Wells merely closed off to the
plaintiff the courts of one states whereas Nilberg fastened
upon the deféndant an irrevocable liability. This theery,
which draws a constitutional distinction. between tempo-
rary inconvenience to the plamtif® and irremediable pregu-
dice to the defendant faiters in at least one serhous respect,
It assumes that the plaint fT will be free to step across state
lines, serve the defendant, apd start his suit all ever again.
This assumption is immediately, prone te attack. The dis-
frissal of the plaintiff. action mait be an effective adju-
dication Where there is no other forum in which suit may
he brought.’ ,
Mierthertore, ence conceded that the defendant in given
no Vested preperty right merely heceatise. hits interstate
activities result in tortious comduet ina state Whose law
happens to be favorable te him then the ‘listinetion be.
tween the result in Weds and the result) tn Nilbera fails
of its own weight. (We aust emphasize that we are not
concerned here with the wisdom of New York's chore al.
law, but only with its poer to choose as it did in Nilbera.
The Supreme Conrt in Wells upheld the po:rer ol the
forum to subordinate or replace “substantive™ or “integral”
parts of a foreign statute se as te relieve a defendant from
liability enforceable under the foreign statute. But is
6 Farther, a dismissal on public policy greunds treads the thin
line between a jucdiwment on the merits and a Judginent Without
prejudice, shold a second jurisdietion view It as a: juaginent on
the merits, the plaintiff wil be “irremediably prejudiced” there.
This lends support te our contention, 7 be developed shortiv. that
the fact that.an application of the forum's public poliey favors one
party rather than the other is constitutionally irrelevant
A-60 :
Opinion of Court of Appeals En Bane
the forum to be deprived. of the constitutional ‘power to
deal with a statute in exactly the same manner when the
only difference will be a favorable result to the plaintiff
instead of the defendant?) The Supreme Court has in fact
held that a state may choose to ignore or to qualify
defenses that arise under. the laws of another state.
Watson v. Employers Liability Corp., 348 U.S. 66 (1954),
heid that the concern of Louisana for the protection of
its residents was sufficient to empower it-to hear in its
courts a direct action against a nonresident insurance
company, despite a& no-action clause in a Massachusetts
contract allegedly controlling the obligations of. the insurer
We therefore see no escape from the proposition we
announce today, that a legitimately interested state may
under the circumstances of this case, apply a firmly fixed
and long?existing policy of its own, although this would
remove a defense provided by- an “intagral” provision of
the locus’ statute creating the cause of attion. “This Court
in Bournics v. Atlantic Maritime Co., supra, in an opinion
by then Cireuit Judge Harlan, held that) a Distriet Court
sitting in New York could refuse to apply the one-year
Panamanian statute of limitations incorpoyated in the very
statute creating the cause of action upon which the suit
was brought. There, as here, part of a forbign statute was
rejected so as to eliminate a defense to the suit and>to
enhance the liability; im “Bourwias, At. wae of time,
in this case it is dollar limit. Both adversely atfected
the defendant." Just such a result was forecast in Justice
16 An attempt might be made to distinigyish Bournias on the
Court’s finding that the statutory period was not * ‘specifically’
built in so as to refer unmistakably to the cause of action in ques-
tion. But in Wel?s, the Supreme Court sai(l : **Dikerentes based
upon whether the foreign right was known) to the common jaw or
upon the arrangement of the code of thé foreign state are too
unsubstantial to form the basis for constitutional distinctions under
the Full Faith and Credit Clause.”’ 345 U\S. at 518.
A-61
Opinion of Court of Appeals don Banc
Brandeis’ dictum in Jlome Ins, Co. vo Dick, 281 U.S. 397,
409 (1930): “It is true that a State may extend the time
within which suit may be brought in its own courts * * *.
And * * * the local statute of limitation may be applied to
a right created in another jurisdiction even where the:
remedy in the latter is barred.” It should he unquestioned
at this late date that theclaw of the forum may under |
certain circumstances ‘vert seriously qualify or expand
the rights or obligations created by the statute of a foreign
state, Whether this works to the benefit of one party or
the other is clearly irrelevant to the issue of full faith and
credits and ave can find no reason for holding that it has
any gredter relevancy to the issue of due process,
A violation of the Due Process Clause of the Fourteenth
Amendment requires not only that there be a deprivation
of property—aind we have found none here but alse some
unreasonable or unreasoned imposition of tiability, Tn
the area of contlict of laws, the Due Process Clause pre-
vents anarbitrary application of aostate’s jurisprudence to
tn out-of-state event, Tt is not disputed that New York
would not be arbitrary if it seleeted its own law to apply to
the whole of this controversy, Tow, then, can the selection
hecome arbitrary and constitutionally prohibited when Now
York makes an even more intelligent and rational appliea-
tion of its own law to a particularésse in the litigation 2'64
Could there be any principle of conflict of laws more
arbitrary than the one advaneed on behalf of the defend.
ant, that New York necd not apply Massachusetts law at
all but that once New York models its rule of liability on
16a For a tneid (discussion of the need for decetding conflict of
laws problems on the basis of the particular issues in dispute, see
Cavers. **Re-Restating the Conflict of Laws: The Chapter on
Contracts.’ Twentieth Century Comparative and Contliets Law.
B49, 27-58 (1061)
<7
A-62
Opinion of Court of Appeals En Bane
the Massachusetts law it abdicates all power to make a
wise choice of law to govern the other incidents of the
litigation?. Just as we sfated ° when dealing with the Full
Faith and Credit Clause, the Due. Process Clause if so
construed would: be destructive of, legitimate and lawful
state interests and lose meaning. There is no, precedent
which supports such a constitutional proposition and we
are disinclfied to stamp our approval on such dubious
doctrme. , ‘ :
The field of conflict of laws, the most underdeveloped
in our jurisprudence from a practical standpoint, is just
now breaking loose from the ritualistic thinking of the last
century. Recent opinions of the Supreme Court and the
great wave of academic writing reinforce this trend of
flexible and articulate selection of the laws governing
multistate transactions.!? The development will be still-
born if we impose inflexible constitutional strictures in
the name ofenational unity, reefrictions which could not be
repaired by state’or federal legislation."
Finally, we hold, for the reasons stated in this writer's
original dissenting .opinion, that Judge MeGohey was
right in instructing the jury that .the measure ef damages
should be based not upon the degree of the defendant's
eupability but upon th® extent of pecuniary loss sustained
by the dependents." Moreover, as decided unanimously
17 See Richards v; United States, 369 U.S. 1,12-18 (1962).
18 See Freund, ‘Chief Justice Stone & the Conflict of Laws,"
59 Jlarv. L. Rev. 1210, 1235-36 (T9460) “Tf.the task of Conflict
of Laws is to understand, harmonize, and weigh competing interests
in multistate events, and if the desideratum of uniformity will be
approached most satisfactorily by evolving rules that deliberately
seek these objectives, then we seem to be hardly ready for a set of
precepts imposed in the process of Supreme Court decision as fixed
canons of constitutional law.”’
19 See BOT F. 2d at 146-47.
cs)
‘
*
A
-s
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at
A-63
. . ; . . "1 ‘ : st
Dissenting Opinion of Court of-lAppeals En Bane
*
by the original panel, and for the reasons stated there,
. . ° .
the running of interest on the judgment should be: de--
S-
termined by Massachusetts law,
‘The judgment below is affirmed, as reduced by the:
niodifieation of the award for interest.
— OU!
Fisenpiy, Cireuit Judge, (with whom Lumbard, Chief
Judge, and Moore, Circuit Judge, join), dissenting:
I find nothing in the Federal Constitution that would
prevent the legislature of New York from amending its
wrongful death act, Decedent Estate Law, 130 et seq., to
include the death in a sister state @ a New York resi-
dent travelling on a flight from New York on a ticket
purchased in, New York, or the courts of NA York from
now readiig¢ its wrongful death act to cover such a case,
Whether any one of these “contacts” would alone war-
rant New York in thus*applying its own wrongful death
act and refusing any “faith and credit” to the “public acts”
of the sister state, certainly the combination does, Se
far_as concerns the issue here, Alaska Packers Ass'n v.
Industrial Ace. Comm'n, 294 U.S. 532 (1985), and
Richards v. United States, 369 US. 1, Lo (T62), indicate
that but no more than that. I would agree also that New
York is constitutionally free to ove srrale decisions that
forbid or restrict the personal re presentatives, of a party
to a contract of carriage made in Ne® York from suing
.
on the contract, for wrongful death wherever it mi 1
occur. Our brothers’ fears as to the iniposition of in-
flexible constitutional, strictures on the development. of
choice of law rules are thus quite needless the majority
seems rather to be supporting itself with vhosts of its
own conjuring. 2
| F A-64 :
Dissenting Opinion of Court of Appeals En Bane
It is common ground that New York has not followed
any of the courses just outlined. All seven of the judges
of the Court of Appeals in Ailberg repudiated an action
ex contraetu. The majority likewise disclaimed any idea
that recovery might be had, in tort, under New York's
wrongful death act. Chief ee Desmond said, 9 N.Y.
2d 34, 40, 211 N. Y. S. 2d 133, 135-136 (1961), with entire
clarity: “We will still require olaintif : sue on the Mas-
sachusetts statute but we refuse on public policy grounds
to enforce one of its provisions as to damage”—“We * * *
refuse to apply that part of the Massachusetts law”.
Moreover, in a subsequent case involving a élaim for
wrongful death in a sister state, the Court of Appeals
underlined what it had said in Kilberg. After stating “We
there indicated that the courts of this State were free to
award damages in excess of the ‘amount limited by a for-
eign death statute under which the action was brought
* * * it applied a rule of the sister state disallowing
pre-indgment interest despite the contrary direction -of
£132 of the New York Decedent Estate Law. Darenport
v. Webb, 11 N.Y. 2d 392, 230 N. Y.S. 2d 17, 19 (1962). New
York under the Kilberg doctrine thus gives some faith
and credit to the foreign w rongful déath act. In Ailberg
it enforced the Massachusetts statute, Ann. Laws’ Mass.,
e, 229, £2, (as in effect in 1958) insofar as this decrees
that “If the proprietor of a common carrier of pas-
sengers * * * by reason of his or its negligence or wilful,
wanton or reekless act, or by reason of the unfitness or
gross negligence or carelessness, or the wilful, wanton
or reckless act, of his or its servants or agents, causes
the death of a passenger, he or it-shall be liable in dam-
ages * * *” But New York disregards ‘the words im-
mediately following: “in the sum of not less than two
AD 7
Dissenting Opition of Court of Appeals Eu Bane
thousand nor more than fifteen thousand iollars, to’ be
assessed with reference to the deghee of culpability of the
defendant or of his or its servants or agents, and recovered
and distributed as provided in section one, and to the use
of the persons and in the proportions, therein specified.”
Although Wilberg did not provide the detail as “to just
what New York would supply in place of the excised
language save only ‘that there would be no limitation om 7
the amount of recovegy, our brothers fill the gap; they
decide that in New York the amount of recovery under
the Massachusetts Act is to be measured by the loss sux-
tained by the dependents without regard to the degree of
defendant's cwpability, Appellant contends that the Full
Faith and Credit Clause, Art. IV, © 1, and the Due Process
Clause of the 14th Amendment forbid this.
a, superticially attractive answer is that if New York
could validly arrive at the Adlberg result on a theory of
contract or through-amendment or construction of its own
wrongful death act, the Constitution does not demand a
different conclusion because Now York attains the. same
goal through excising or altering a provision of the Mas-
sachusetts Act. [say “superficially attractive” since the
two processes differ not only conceptually —which may not
be altogether unimportant in a legal system designed t
‘iaintain a certain degree of order among fifty oe
Bt practically as well. Although the primary interest
of the framers of the Constitution in the area of inter-
governmental relations was doubtless to set bottindaries
hetween the new Federal Government and the states, they
were concerned also with preventing encroachments by
one state upon another, See Ogden v. Saunders, 12
Wheat. 373, 369 (1827). Madison characterized the Full
Faith and Credit Clause as among those “which provide
A-66
¢
Dissenting Opinion of Coif of Appeals En Banc
for the harmony and proper intercourse among the
States.” The Federalist No. 42. Granted that whenever
a New York court enters a judgment, it is enforcing
New York “law”, and that New York may often make
the same rules that govern transactions within New York
apply to events in a sister state, it does not follow that
when New York. looks to a statute of a sister state as
the source of a claim enforeable in its courts, the Con-
‘ stitution ‘allows it to decline, in the Supreme Court's,
words, “to give full faith and credit to all those substan-
tial provisions of the statute which inhered in the cause
of action, or which name conditions on which the right
to sue depiend{s].” Tennessee Coal, Iron & R.R. Co, v.
George, 233 U.S. 354, 360 (1914); see Order of United
Commercial Travelers v. Wolfe, 331 U.S, 586, 625 (1947).
An important reason why a forum state may not do
this is that it thereby interferes with the proper freedom
of action of the legislature of the sister state. The terms
_and conditions of a claim created by statute inevitably
reflect the legislature’s balancing of those conside
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