# Petition for Writ of Certiorari — Lincoln National Life Insurance v. Roosth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0732%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 372 U.S. 912 ## Text : 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. - 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 — 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. ~~ 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0732%3A2. Public record. Not legal advice.