Petition for Writ of Certiorari — Goranson v. Capital Airlines, Inc.

Liseaty _

==——SUOREE COURT. U.

In the Supreme Court of the United States

HENRY W. GORANSON,

Administrator with the Will Annexed of the Estate of

Harold T. Goranson, Deceased,

Petiti

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit.

l

Frep A. SmirH,

7th Floor Toledo Trust Bldg.,

Toledo, Ohio 43604,

Attorney for Petitioner.

Vernon E. RoHRBACHER, ,

_ Henry W. Goranson,

7th Floor Toledo Trust Bidg.,

Toledo, Ohio 43604,

Of Counsel for Petitioner.

I I icici cnaeectalcateieshasmndoapdocaeveiasicdions oa

BEEN nee ee Te Ee eS ee OE aR 2

The Questions Presented for Review _____________ 2

Constitutional Provisions and Statutes Which the

A a si es laminae 4

EE TO GO os ik cen Sinise tivd 6

Reasons Relied on for Allowance of the Writ _______ 9

ENR ari EAE PR oeE te ene EN NORTE OE 21

Appendix A—Opinion of the United States Court of

SI «sini ticcineicisiaegaitaniateadsaaticndsin es dihuniabin 22

Appendix B—Order of the United States Court of

Appeals for the Sixth Circuit ________________ 29

Appendix C—Judgment of the United States Court of

Appeals for the Sixth Circuit ________________ 30

CITATIONS.

Cases.

Aldrich v. Aldrich (1963), 375 U. S. 75, 375 U. S.

mee CRG), See Uo OSS c..................., 19

Alexander v. Pennsylvania, 48 O. S. 623 ________ 13, 14

Babcock v. Jackson, 12 N. Y. 2d 473, 191 N. E. 2d 279 10

Clay v. Sun Insurance Office, Ltd. (1960), 363 U. S.

- 5c |e Be SRR ne eante 19

Dresner v. Tallahassee (1963), 375 U. S. 136 (1964),

gS ener ee 19

Fabric v. Horgen (Iowa 1965), 132 N. W. 2d 410 11

Goranson v. Capital Airlines, Inc., 345 F. 2d 750 -_. 1

21/_

Grant v. McAuliffe, 41 Cal. 2d 859, 264 P. 2d 944 10

Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A. 2d

796 ___ ro SL kA ce ae DE 10, 11

Haumschild v. Continental Casualty Co., 7 Wis. 2d

130, 95 N. W. 2d 814 ieee isn nna 11

Kilberg v. Northeast Airlines, Inc., 9 N. Y. 2d 34,171

pe diced cod nN TE 10

Meredith v. Winter Haven (1943), 320 U.S. 228__._. 18

Pearson v. Northeast Air Lines, Inc., 309 F. 2d 553,

cert. den. 372 U. S. 912 ~.-._.-______ 3, 10, 20,

Richards v. U. S., 396 U. S. 12 _-___________________ 10

Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82

I TN ia acta iain aicnduncaanin ection 10

VanDusen v. Barrack, 376 U. S. 612 at 644, 646 __._._ 11

Wilcox v. Wilcox (Wis. 1965), 133 N. W. 2d 408 ____- 11

Constitutional Provisions.

United States Constitution, Article XIV, Section 1

PN AIT ES Se TT SS BOE eye Ne 3, 4, 15

Constitution of the State of Ohio, Article I, Section

SO csi cab asics ele bil ciseaestohaettbssibserieabennniananiae 2,4

Statutes. ,

28 U. S. C. Section 1254(1) fe NIE TE 2

ye | ‘9

Be ie er I I petescstteenicekdcnsenieeensesscipinions 6

Ohio Revised Code, Title 21, Section 2126.62 4

Ohio Revised Code, Title 21, Section 2125.03 _______ 5

Ohio Revised Code, Title 27, Section 2721 _________ 19

Virginia Code, Section 8-636 ______-_-____________ 5, 9

Periodicals.

American Bar Association Journal, May, 1965 issue

(Volume 51, page 441) has an

63 Columbia Law Review 1212 (1963) ___________ 10

48 Cornell Law Quarterly 215 (1962) _____________ 11

39 Indiana Law Journal 228 (1963) ______________ 16

37 Texas Law Review 657 (1959) ________________ 10

56 Yale Law Journal’1155 (1947) ____________-_ 10

~

—,

In the Supreme Court of the United States

OCTOBER TERM, 1965.

No. __

HENRY-W. GORANSON,

Administrator with the Will Annéxed of the Estate of

Harold T. Goranson, Deceased,

Petitioner,

Vs.

CAPITAL AIRLINES, INC, and

UNITED AIR LINES, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit.

Petitioner, Henry W. Goranson, respectfully prays

that a writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Sixth Circuit,

entered in the case of Henry W. Goranson, as Administra-

tor with the Will Annexed of the Estate of Harold T. Gor-

anson, deceased, vs. Capital Airlines, Inc. and United Air

Lines, Inc., on May 25, 1965 (as amended on August 26,

1965 upon petitioner’s Petition for Rehearing).

OFFICIAL REPORT OF THE OPINION BELOW.

The opinion of the United States Circuit Court of

Appeals in this case (Appendix A hereto) is reported in

345 F. (2d) 750. As so reported the opinion incorporates

the corrections and additions to the opinion that were

ordered (Appendix B hereto) by the Court of Appeals in

passing on petitioner’s petition for a rehearing before that

court.

Te eee eae ee ay te eee eee

2

GROUND ON WHICH THE JURISDICTION OF THIS

COURT IS INVOKED.

" The judgment of the United States Court of Appeals

for the Sixth Circuit (Appendix C hereto) was entered on

May 25, 1965. Thereafter a petition for rehearing was

filed and the court entered on August 26, 1965 an order

(Appendix B hereto) amending its opinion, but in other

respects overruling the petition for rehearing.

‘The statutory provision conferring on this court

jurisdiction to review the judgment or decree in question

by a writ of certiorari is 28 U. S. C., Section 1254 (1)

which provides:

“Cases in the Courts of Appeals may be reviewed

by the Supreme Court by the following methods:

“1. By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree; * * *.”

THE QUESTIONS PRESENTED FOR REVIEW.

1. When Article I, Section 19a of the Constitution of

Ohio provides “The amount of damages recoverable by

civil action in the courts for death by the wrongful act,

neglect or default of another shall not be limited by law,”

in a civil action instituted to recover from a Delavraze

corporation for the wrongful death of an Ohio decedent as

a result of an airplane crash, can a United States District

Court in Ohio limit recovery to Thirty Thousand Dollars

($30,000.00) merely because of the fortuitous circum-

stance that the crash occurred in Virginia (which has a

statute providing such limitation) although Virginia has

no interest whatsoever in the outcome of such litigation?

Stated differently, can a United States District Court

in Ohio, on the*basis of a non-existent, illusory and spuri-

3

ous “conflict” of a Virginia statute with the Ohio Constitu-

tion (when no purposes of the Virginia statute would or

could be advanced by applying such statute), disregard

and override the Constitution of Ohio, thus placing the

principal financial burden of defendants’ negligence on

decedent’s survivors rather than, as required by the Con-

stitution of Ohio, distributing such burden as a part of

the cost of defendants’ doing business?

2. Is the arbitrary and capricious application of the

limitation of the Virginia statute, to disregard and over-

ride the Constitution of Ohio, a denial of “equal protection

of the law” or “due process of law” under the 14th Amend-

ment of the Constitution of the United States?

3. Did the Court of Appeals erroneously and im-

properly decline to decide the controlling issue in this

case, on the theory that the question never having been

passed upon by the Supreme Court of Ohio, the Court of

Appeals was prohibited from passing on the question in

the first instance? r

_ 4, The Court of Appeals having stated in its opinion

(p. 751) “it is conceded that the Supreme Court of Ohio

has never decided the particular question involved” should

this Court now decide such question, or employ some

procedure to secure a decision ftom the Supreme Court of

Ohio?

5. Is the decision of the Sixth Circuit Court of Ap-

peals in this case in conflict with the holding of the Second

Circuit Court of Appeals in Pearson vs. Northeastern Air-

lines, 309 F. 2d 553 (Certiorari denied 372 U. S. 539)?

Pe eT —

.

CONSTITUTIONAL PROVISIONS AND STATUTES

WHICH THE CASE INVOLVES.

1. The Fourteenth Amendment to the United States

Constitution provides in part as follows:

“Section 1. All persons born or naturalized in the

United States, and subject to the jugisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

2. The Constitution of the State of Ohio, Article I,

Section 19a provides:

“19a. Damages for Wrongful Death.

“The amount of damages recoverable by civil

action in the courts for death caused by the wrongful

act, neglect, or default of another, shall not be limited

by law. (Adopted Sept. 3, 1912.)” (Page’s Ohio Re-

vised Code Appendix, page 404.)

3. Revised Code Title 21, Section 2125.02 provides:

“§ 2125.02 Proceedings, (GC § 10509-167).

“An action for wrongful death must be brought

in the name of the personal representative of the de-

ceased ferson, but shall be for the exclusive benefit

of the surviving spouse, the children and other next

of kin of the decedent. The jury may give such dam-

ages as it thinks proportioned to the pecuniary injury

resulting from such death to the persons, respectively,

for whose benefit the action was brought. Except as

otherwise provided by law, every such action must

be commenced within two years after the death of

~~

5

such deceased person. Such personal representative,

if he was appointed in this state, with the consent of

the court making such appointment may, at any time

before or after the commencement of the suit, settle

with the defendant the amount to be paid.” (Page’s

Ohio Revised Code, Title 21, page 401.)

4. Revised Code, Title 21, Section 2125.03 provides:

Ҥ 2125.03 Distribution to beneficiaries. (GC

§ 10509-1658.)

“The amount feceived by a personal representa-

tive in an action for wrongful death under sections

2125.01 and 2125.62 of the Revised Code, whether by

settlement or otherwise, shall be distributed to the

beneficiaries or any one or more of them, and unless

the share of each is adjusted among themselves, the

court making the appointment shall adjust such share

in such manner as is equitable, having due regard to

the pecuniary injury to each beneficiary resuliing

from such death and to the age and condition of such

beneficiaries. In making such distribution, the court

may also consider funeral expenses and other items

of expense incurred by reason of the death.” (Page’s

Ohio Revised Code, Title 21, page 408.)

5) The Virginia Code, Section 8-636 provides:

“Damages.

“The jury in any such action may award such

damages as to it may seem fair and just, not exceeding

thirty thousand dollars, and may direct in what pro-

eportion they shall be distributed to the surviving

widow or husband and children and grandchildren of .

‘the deceased, * * *. The maximum amount of dam-

ages that may be awarded under this section to thirty

_ thousand dollars shall not apply to any cause of action

arising prior to July one, ninteen hundred fifty-eight.”

(Code 1919, § 5787; 1920, p. 27; 1942, p. 337; 1952,

c. 60; 1958, c. 387.)

" ee Oe ee rr ee es re ow

6

CONCISE STATEMENT OF THE CASE.

(a) Basis for Federal Jurisdiction in the Court of

First Instance.

Plaintiff is a citizen and resident of Ohio, appointed

by the Probate Court of Wood County as Administrator

with the Will Annexed of Harold T. Goranson, deceased,

such decedent having been a resident of Ohio at the time

of his death. Defendants were ‘Delaware corporations

(consolidated on June 1, 1961 under the laws of Delaware

into a single corporation under the name United Air Lines,

Inc.) engaged in business in Ohio, with fheir principal

place of business outside the State of Ohio. The matter in

controversy exceeds the sum or valtie of Ten Thousand

Dollars ($10,000) exclusive of interest and costs. The

United States District Court for the Northern District of

Ohio, Western Division, had jurisdittion over this case

under the provisions of 28 U. S. C., Sec. 1332, which so

far as pertinent provides: é

“(a) The district courts shall have original juris-

diction of all civil actions where the matter in con-

troversy exceeds the sum or value of $10,090, ex-

clusive of interest and costs, and is between—

(1) citizens of different states; * * *”

(b) Facts Material to the Consideration of the

Questions Presented.

This is a wrongful death action under the Constitution

and laws of Ohio, filed on November 14, 1961 in the United

States District Court for the Northern District of Ohio,

Western Division, to recover for the pecuniary loss to de-

cedent’s widow and five minor children; and they are the

sole beneficiaries of any recovery that may be realized.

At the time of decedent’s death his widow was thirty-nine

7

years of age, his eldest child was twelve years of age and

the youngest child was born posthumously.

Petitioner, hereinafter referred to as plaintiff, is Henry

W. Goranson, Administrator with the Will Annexed of the

Estate of his brother, Harold T. Goranson, deceased, here-

inafter referred to as decedent, or Captain Goranson.

Defendants-appellees in the courts below were Capital

Airlines, Inc. and Unite? Air Lines, Inc., common carriers

of passengers by air, hereinafter referred to as defendant.

Captain Goranson at the time of his death was forty-

_three years of age, a resident of the State of Ohio, and a

Captain in the United States Navy. Except for his un-

timely death, today he would be an Admiral.

On January 18, 1960 Captain Goranson was traveling

under official orders of the United States Navy as a com-

mercial passenger on a Vickers-Armstrong Viscount air-

craft of the then Capital Airlines, Inc. While the plane was

enroute from Washington, D. C. to Norfolk, Virginia it

crashed in the vicinity of Charles City, Virginia, killing all

aboard including Captain Goranson.

The crash was caused by defendant’s negligence in the

maintenance and operation of defendant’s plane; such

negligence in several respects (relating to maintenance

and operation under icing. conditions) having continued

over an extended period of time (up to 18 months) ante-

dating the crash. The allegations of negligence in the Com-

plaint (summarizing and paraphrasing the findings of a

Civil Aeronautics Board investigation) asserted:

“8, The death of plaintiffs decedent was caused

by the negligence of defendant, Capital Airlines, Inc.,

in the maintenance and operation of the airplane.

“9 The negligence of defendant, Capital Airlines,

Inc., in addition to that hereinabove alleged, consisted

of:

(a) Operating the airplane without making

necessary tests and inspections to determine

whether any hazard or danger existed through mal-

function or misarming of the engine ice-protection

systems, or through inadequacy of the electrical en-

ergy supply system when required to unfeather

propellers and yee engines under icing condi-

tions;

(b) Permitting its pilots to operate the air-

plane in flight without having the ice protection for

all four engines switched ‘ON’ during every flight

at all times when the indicated outside air tempera-

ture was below plus 10°C;

(c) Failing to warn its pilots that it was dan-

gerous to follow the direction to ‘descend to warmer

climate’ contained in said defendant’s emergency

checklist and Capital Airlines Flight Manual;

(d) Failing to give its pilots instructions with

reference to Change 15 of the Air Registration

Board (ARB) Manual, issued in July, 1958, chang-

ing the operation of the ice-protection system of the

Viscount and failing to include such instructions in

its Airlines Flight Manual;

(e) Failing to adopt a system to check its

pilots, including the one having command of the

aforementioned flight, to ascertain that they had the

benefit of the latest operating information.”

Defendant filed its answer on January 3, 1962 setting

up several defenses, the only one pertinent here heing the

Sixth Defense, namely:

“Defendant says that the amount of iia re-

coverable in this action is limited in any event to

Thirty Thousand Dollars ($30,000) pursuant to the .

Code of Virginia, Section 8-636.”

Twenty-three months later, on December 3, 1963, de-

fendant filed a motion for summary judgment for the dis-

9

missal of all claims and causes of action in excess of Thirty

Thousand Dollars ($30,000) based upon a limitation of

such amount in Section 8-636 of the Code of Virginia,

1950, as amended.

By order dated March 2, 1964, entered on Defendant’s

“Motion for Summary Judgment,” the District Judge held

that “the measure of damages in an action for wrongful

death is governed by the lex loci delecti,” and that the

Virginia statute limiting liability to Thirty Thousand Dol-

lars ($30,000) was applicable in this case. The District

Judge further certified that a controlling question of law

was involved “as to which there is substantial ground for

difference of opinion,’? and an appeal was allowed by the

United States Court of Appeals for the Sixth Circuit under

Section 1292(b), Title 28, U.S: C.

On May 25, 1965, the Court of Appeals affirmed the

order of the District Judge. Plaintiff thereafter filed a peti-

tion for rehearing, as a result of which on August 26, 1965 _

the Court of Appeals entered an order making certain

additions and corrections to its opinion rendered on May

25, 1965, and denying plaintiff’s petition for rehearing.

ARGUMENT AMPLIFYING REASONS RELIED ON

, FOR ALLOWANCE OF THE WRIT.

(a) There is no genuine conflict between the Ohio

Constitution and the Virginia Statute limiting liability; and

Virginia having no interest whatever in the outcome, the

statute is a nonexistent, illusory and spurious “conflict.”

See Question No. 1.

In the May 1965 issue of The American Bar Associa~

tion Journal (Volume 51, page 441), in an article eatitled

“Revolution in the Choice of Law for Torts,” Professor

Russell J. Weintraub, one of the leading scholars in the

field, states:

10

“In the past few years the tempo of change has

quickened until the situation can best be described as

a revolution in the choice of law for torts, particularly

in the area of accident law.

“* * * courts have relied on law review commen-

taries in the field and have found a tongue to explain

more clearly what they are doing. What this amounts

to is a new approach to solving choice-of-law prob-

lems.

“Basically, the new method is this. When the

domestic rules of two states having contacts with the

parties or the transaction seem to conflict on some

crucial issue, the court analyses the policies underly-

ing those domestic rules. Frequently, the analysis will

reveal that the conflict is only apparent; that in fact,

in terms of underlying policies, the legitimate inter-

ests of one of the states can be served without in any

way conflicting with the legitimate interests of the

other * * *,.”

Comparable comments by other writers are common

See, e.g. Comments on Babcock v. Jackson, 63 Colum. L.

Rev. 1212 (1963) (comments by Professors Cavers,

Cheatham, Currie, Ehrenzweig, Leflar and Reese) ; Harper,

Policy Bases of the Conflict of Laws; Reflections on re-

reading Professor Lorenzen’s Essays, 56 Yale L. J. 1155

(1947); Traynor, Is ‘This Conflict Really Necessary?, 37

Texas L. Rev. 657 (1959).

Recent cases dealing with some facet of the subject

include Richards v. U. S., 369 U. S. 12; Kilberg vs. North-

east Airlines, Inc., 9 N. Y. 2d 34, 171 N. E. 2d 526; Pearson

vs. Northeast Air Lines, Inc., 309 F. 2d 553, C. A. 2, cert. -

den. 372 U. S. 912; Griffith v. United Airlines, Inc., 416 Pa.

1, 203 A. 2d 796; Babcock v. Jackson, 12 N. Y. 2d 473, 191

N. E. 2d 279; Grant v. McAuliffe, 41 Cal. 2d 859, 264 P. 2d

944; Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82”

11

N. W. 2d-365; Haumschild v. Continental Casualty Co.,

7 Wis. 2d 130, 95 N. W. 2d 814; Wilcox v. Wilcor (Wis.

1965), 133 N. W. 2d 408 and Fabric v. Horgen (lowa

1965), 132 N. W. 2d 410. See also Van Dusen v. Barrack,

376 U.S. 612 at 644, 646.

The considerations involved in the recent cases are

well summarized in Griffith v. United Air Lines, Inc., 416

Pa. 1, 203 A. 2d 796 wherein the court noted:

“tk * * Almost all authorities agree that there

must be a policy analysis approach to replace the

place of the injury rule.’ ”

“«* * * The state in which injury occurred, as

such, has relatively little interest in the measure of

damages to be recovered unless it can be said with rea-

_ sonable certainty that defendant acted in reliance on

that state’s rule. Moreover, where the tort is unin-

tentional, the reliance argument is almost totally un-

tenable. This is abundantly clear in the present case;

the site of the accident was purely fortuitous.’ ”

In Volume 48, Cornell Law Quarterly (1962), pages

215, et seq. in an article entitled “Method for Solving Con-

flict Problems—Torts” by Professor Russell J. Weintraub,

it is stated:

“J, Identify and Eliminate Spurious Conflicts

The first step in the solution of a choice-of-law

problem in the torts area should be the identification

and elimination of spurious conflicts. A spurious con-

flict is present when two or more jurisdictions, having

some contact with the parties or the occurrence, have

tort rules pointing to different results, but, upon

analysis of the purposes underlying the putatively

relevant and divergent rules, it becomes apparent that

one rule and one rule only is rationally applicable to

the case in issue. If, for example, one contact state has

a rationally applicable rule making the defendant li-

12

able and no other contact state has a rule eliminating

liability, the purposes of which would be advanced by

- applying the liability-insulating rule to the case at bar,

there is no conflict. The defendant should be liable.

.

+ * *” (p 216.)

“* * * The place of impact, qua place of impact,

has no interest in insulating the defendant from liabil-

ity, unless it can rationally be argued under the cir-

cumstances that the defendant has acted in reliance

on. that place’s insulating rule. Such a reliance argu-

ment will almost invariably be untenable when di-

rected at rules governing liability for unintentional

torts, excluding, of course, such purely directory local

rules as speed limits, rules of the road, and the like.”

(p. 220.)

“* * * spurious conflicts can be identified and —

eliminated by simply recognizing, as suggested above,

that the place of impact as such has no interest in

insulating the defendant from liability, absent a rea-

sonable basis for the defendant’s arguing that he acted

in reliance on the protection of that place’s rule.” (p.

227.)

“* * * The interest of the place of impact in pro-

viding compensation is similarly reduced if the \

victim is killed and recovery is for wrongful death.

The proceeds of such recovery, at least when there

‘are close relatives surviving, are not subject to the

claims of creditors. One matter over which it is clear

that the place of impact as such has no interest is in

the manner of distributing the proceeds of a wrongful

death recovery. Any conflict in regard to such dis-

tribution between the law of the place of impact and

the law of the domicile of the decedent and his next

of kin is spurious. The law of the domicile should

control. a ee 228. )

\

13 »

“VY. CoNCLUSION.

The plea for a method of solving conflicts prob-

_ lems whikh j is primarily concerned with the policies

“ underlying putatively conflicting domestic rules and

with the more general purposes and trends in the

substantive area involved—such a plea is not that of

a lone voice in the wilderness. Scholars of the first

rank have been talking of such things for many years.

More significantly for today, judges, led by Roger

Traynor of California, are more and more applying

such.a method to the decision of conflicts cases. * * *”

(p. 252.) As

While there are no Ohio cute on the public

policies involyed in the Constitution of Ohio, as adopted

in 1912 prohibiting any limit on the amount recoverable

for wrongful death, the United States Court of Appeals

placed principal reliance for its decision on Alexander v.

Pennsylvania, 48 O. S. 623, a case decided in 1891, some

twenty-one years before the adoption of the constitutional

provision in question prohibiting any monetary limitation /

on recovery for wrongful death. The Alexander case,

decided seventy-five years ago, had nothing tojdo with

any monetary limitation of Ohio or any other/state. It

simply applied the Pennsylvania Fellow Servant Rule to

a suit brought by a Pennsylvania resident against a Penn-

sylvania corporation to recover for injuries sustained in

Pennsylvania as a result of the negligence of a Pennsyl-

vania fellow servant; and held that no cause of action ex-

In the Captain Goranson case the relevant megligence

found by the Civil Aeronautics Board investigation (and

"summarized in the complaint) resulted from defendants’

violation of the laws of the United States and regulations

thereunder, not any law of Virginia. Such relevant neg-

8 ‘ : “S

14

ligence had continued over an extended period of time

(up to 18 months) antedating the crash. The Alexander

case is not only three-fourths of a century distant in time,

but even further removed on the facts from the Goranson

casé; and to repeat, Alexander was decided 21 years before

the Ohio Constitutional provision, providing that the

amount of damages shall not be limited by law, was

adopted by the voters of Ohio.

_ It is conceded in this case that a cause of action exists,

both in Ohio and Virginia. The only question is the arbi-

trary application of a Virginia limitation of liability con-

trary to the public policy expressed in the Constitution of

Ohio. |

Obviously, the Ohio Legislature could not enact a

statute in conflict with the Ohio Constitution. Can Vir-

ginia enact a statute that will be applied by Ohio courts

that conflicts with the Ohio Constitution when no purposes

of the Virginia statute would or could be advanced by

applying such statute, and Virginia has no interest what-

soever in the outcome of such litigation?

The results of the decision of the courts below in this

case are that most of the financial burden occasioned by

defendants’ negligence is cast upon a widow and five

minor children with an equivalent windfall for defendants

and its liability carrier, The United States Aviation Un-

derwriters, Inc. of The United States Aviation Insurance

Group. ene |

The Virginia statute amounts to no more than a non-

existent, illusory and spurious “conflict” with the Ohio

Constitution; and the courts below erred in applying such

Virginia statute to this case.

‘

15

(b) The arbitrary ahd capricious application of the

limitation, of the Virginia Statute to disregard and over-

ride the Constitution of Ohio is a denial of “equal pro-

tection of law” and “due process of law” under the Four-

teenth Amendment to the Constitution of the United

States. See Question No. 2. 7

Commercial aircraft fly at an altitude and ain that

requires an aircraft flying from the West Coast to New

York to start its descent over Indiana or further west and

. to continue to descend at a speed about twice that of high

speed commercial elevators to make a landing in New

York. Should any such aircraft become disabled as a

result of negligent maintenance or operation in violation

of Federal laws and regulations, it could conceivably crash

over any state east of the Mississippi River.

In a suit in Ohio for the surviving wife and children

of an Ohio’ decedent killed in such a crash, can the pro-

tection of the Ohio Constitution and statutes depend upon

the fortuitous place where the aircraft comes to rest? If

several aircraft collide in mid-air, is it decisive which

aircraft a decedent utilized if the aircraft crash in different

states? Can three Navy captains ride in adjoining seats

in an aircraft,and after a crash, the survivors of the Cap-

tain from Pennsylvania and the Captain from New York |

recover Three Hundred Thousand Dollars ($300,000) but

the survivors of the Captain from Ohio be limited to Thirty

Thousand Dollars ($30,000)—the’only difference being

that twenty-five years earlier the decedents received ap-

pointments to the Naval Academy at Annapolis from

different states which have substantially identical constitu-

tional and statutory provisions for recovery for wrongful

death? Should the surviving minor children of two go to

Williams College and the surviving minor.children of the

third go to work when they become eighteen years of age?

te

16

The “equal protection” problems are discussed in an

article entitled “The Erie Doctrine and State Conflict of

Laws Rules,” by Professor Russell J. Weintraub, in Vol-

‘ume 39, Indiana Law Journal (1963) at pages 228 et seq.

The author states:

“Again, if the forum would refuse to apply its

own rule because the forum’s traditional choice-of-

law rule points to some other geographical location

as having the decisive “contact,” such a refusal 1.ay

be based upon an unreasonable classification if in fact

the policies underlying the forum rule would be ad-

vanced by applying it and if application would not

interfere with the legitimate interests of any other

state or unfairly surprise any party. Such unreason-

ableness should be precluded by the ‘equal protection’

clause of the fourteenth amendment of the United

States Constitution.” (p. 243.)

“* * * The answer does lie in removal of artifi-

cial limitations which have impeded their efforts to

reflect viable current trends and changes in conflicts

law not discernible in state opinions which are ripe

for ov ing. Professor Moore has put it well:

‘Although there must be faithful adherence to state

substantive law in nonfederal matters, it should be

a wise and discerning loyalty, something in the nature

of a “prophetic judgment” as to what the highest

court would now do.’ In an area which is changing

as rapidly as is the conflict of laws, there should be

a reversal of the current attitude which prevents

federal courts from obtaining direct information on

the state view of the matter in controversy by stay-

ing, for declaratory proceedings in a state court, or,

where state statute permits, certifying: the question

directly to the state court.” (pp. 245, 246.)

“First, there might be an expansion of due process

and full faith and credit limitations on a state’s choice

of law. * * * Further, the time is ripe for cautious

use of the ‘equal protection’ clause of the fourteenth

17

f

amendment to eliminate some of the irrational classi-

fications which still pervade conflicts dogma.”

(p. 260.) -

See also Note 92 at p. 243 of the article.

We submit that the application of the Virginia statute

under the facts of this case is a clear denial of “equal pro-

tection of the laws” and “due process of law” under the

fourteenth amendment of the Constitution of the United

States.

(c) The Court of Appeals erroneously and improper-

ly declined to decide the controlling issue in this case, on

the theory that the question never having been passed

upon by the Supreme Court of Ohio, the Court of Appeals

was prohibited from passing on such question in the first

instance. See Question No. 3. »°

The Court of Appeals in its opinion (p. 751) stated:

“It is conceded that the Supreme Court of Ohio

has never decided the particular question involved.”

It is obvious that if the question were presented to

_it, the Supreme Court of Ohio would follow the Constitu-

tion of Ohio, which specifically states that “the amount

of damages recoverable by civil action in the courts for

death * * * shall not be limited by law.” There can be

no public policy or practice in Ohio contrary to the ex-

press language of the Ohio Constitution.

” The fact that the public policy of the State of Ohio

is established by constitutional provision rather than by

judicial decree does not make it any less the public policy

of the State of Ohio, and it is just as binding upon any

forum in said state. ‘

The leading case on the power and duty of a Federal

Court to pass on a question of state law that has not been

i.

18

decided by the state courts is Meredith v. Winter Haven

(1943), 320 U. S. 228, in which this court said:

“The diversity jurisdiction was not conferred for

the benefit of the federal courts or to serve their con-

venience. Its purpose was generally to afford to suit-

of ors an opportunity in such cases, at their option, to

assert their rights in the federal rather than in the

state courts. In the absence of some recognized public

policy or defined principle guiding the exercise of the

jurisdiction’ conferred, which would in exceptional

cases warrant its nonexercise, it has from the first

been deemed to be the duty of the federal courts, if

their ‘jurisdiction is properly invoked, to decide ques-

tions of state law whenever necessary to the rendition

of a judgment. Commonwealth Trust Co. v. Bradford,

297 U.S. 613, 618, 80 L. Ed. 920, 924, 56 S. Ct. 600;

Risty v. Chicago, R. I. & P. R. Co., 270 U. S. 378, 387,

70 L. Ed. 641, 650, 46 S. Ct. 236; Kline v. Burke

Constr. Co., 260 U. S. 226, 234, 235, 67 L. Ed. 226,

232, 43 S. Ct. 79, 24 A. L. R. 1077; MeClellan v. Car-

land, 217 U. S. 268, 281, 282, 54 L. Ed. 762, 767, 30

S. Ct. 501. When such exceptional circumstances are

not present, denial of that opportunity by the federal

courts merely because the answers to the questions

of state law are difficult or uncertain or have not yet

been given by the highest court of the state, would

thwart the purpose of the jurisdictional act.” p. 234,

S. Ct. 11, L. Ed. 13.

It is clear that the Court of Appeals had both the

power and duty to pass on the question involved and its

Tefusal to do so thwarts “the purpose of the jurisdictional -

act.”

19

(d) This Court should now decide the applicability of

the Ohio Constitution and the inapplicability of the Vir-

ginia Statute, it being conceded that the Supreme Court

of Ohio has never decided the particular question involved,

and no procedure exists to now secure a decision from the

Supreme Court of Ohio. See Question No. 4.

In the course of the argument before the Court of

Appeals, Judge Weick posed the question if it would now

be possible to employ some procedure to secure a decision

from the Supreme Court of Ohio. ®

Ohio does not have a statute similar to Florida Stat-

utes Annotated (1957), Sec. 25.031, or a Supreme Court

rule similar to Florida Appellate Rule 4.61 which permits

the Supreme Court of Florida to issue opinions on the

certification of a question from the Supreme Court of the

United States or a United States Court of Appeals. See:

Clay vs. Sun Insurance Office, Ltd., 363 U. S. 207 (1960).

Same case 377 U.S. 179 (1964). Aldrich vs. Aldrich, 375

U.S. 75 (1963). Same case 375 U. S. 249 (1963). Same

case 378 U. S. 540 (1964). Dresner vs. Tallahassee, 375

U.S. 136 (1963). Same case 378 U. S. 539 (1964). «~

The only conceivable practice that might be employed

in Ohio to ultimately secure an opinion from the Supreme

Court would be under the-Ohio Uniform Declaratory .

Judgment Act (O. R. C. 2721 et seq.). The Ohio Supreme

Court and Court of Appeals do not have any original juris-

diction in declaratory judgment actions or any jurisdiction

to render advisory opinions, so that the case would, in the

first instance, be filed in the Common Pleas Court. Sec-

ondly, the Declaratory Judgment Act is not applicable

when there is a pending case between the same parties on

the same issues.

Obviously, any declaratory judgment action regarding

a $30,000 limitation would, on its face, be removable to

20

the federal courts by a non-resident defendant. In com-

mercial aircraft cases, there being no Ohio companies in

such business, the question in this case can never, as a

practical matter, bé passed on by an Ohio court, unless

some commercial air line neglects to remove a case to the

federal courts, a very unlikely possibility.

' The result is that there is no procedure in Ohio that

can be employed to secure a ea the Supreme

Court of Ohio as suggested by Judge Weick. —~

It is clear that under the Jurisdictional Act, the fed-

eral courts have the duty and power to pass on a question

not heretofore decided by the Ohio courts, and that this

Court has the power, if not the duty, to do so. Plaintiff’s

decedent was killed in January of 1960. We respectfully

submit that to avoid further delay before this case can be

finally disposed of, this Court should pass upon the ques-

tion presented, as the Court believes it would be decided

by the Supreme Court of Ohio, although the Supreme

Court of Ohio has never passed on such question.

(e) The decision of the Sixth Circuit Court of Ap-

peals in this case is in conflict with the holding of the

Second Circuit Court of Appeals in PEARSON vs.

NORTHEASTERN AIR LINE, 309 F. 2d 553 (cert. den.

372 U. S. 539). See Question No. 5.

The Constitutions of New York and Ohio, in sub-

stance, each provide that there should be no limit on the

amount recoverable in a wrongful death case. While this

provision of the Ohio Constitution employs inherently

clear and unequivocal phraseology, there are no Ohio

cases considering such provision.

It would be a most natural and persuasive approach

for any Ohio court to adopt and follow the New York cases

considering a substantially similar constitutional pro-

21

vision; and such a practice would generally, if not in-

variably, be employed by the Supreme Court of Ohio.

It is obvious that the decision of the Sixth Circuit

Court in this case is in conflict with the decision of the Sec-

ond Circuit in the Pearson case, supra, as the two cases

reach diametrically opposite results in the application of

substantially similar constitutional provisions.

For such additional reasons, the Petition for a Writ

of Certiorari should be granted.

CONCLUSION:

The questions presented in this case have not here-

tofore been presented to or decided by this Court, although

such questions currently are the subject of more discus-

sion by the courts and legal writers than any other field

of the law.

All of the questions presented are recurrent and of

general interest throughout the United States; and we pfe-

dict will be decided by this Court in the near future.

The Petition for a Writ of Certiorari in this case

should be allowed and the questions Ereented decided

now by this Court.

Respectfully submitted,

Frep A. Smiru, 4

7th floor, Toledo Trust Bldg.,

Toledo, Ohio 43604,

Attorney for Petitioner.

VERNON E. RoHRBACHER, 3

Henry W. Goranson, é

7th floor, Toledo Trust Bldg.,

Toledo, Ohio 43604,

Of Counsel for Petitioner.

22

APPENDIX A.

_QPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

(Dated May 25, 1965.) edi

Before Weick, Chief Judge, and Miter and Cecr,

Circuit Judges.

Ceci, Circuit Judge.

This appeal arises out of a. wrongful death action

brought in the United States District Court for the North-

ern District of Ohio, Western Division. The plaintiff-

appellant is Henry Goranson, administrator, with the will

annexed, of the estate of Harold T. Goranson, deceased.

We will refer to Henry Goranson as the plaintiff and to

Harold Goranson as the deceased. Capital Airlines, Inc.

and United Air Lines, Inc., were named as defendants and

are defendants-appellees herein. These two airline com-

panies have been consolidated under the name of United

Air Lines, Inc., a corporation organized under the laws of

Delaware. Although the deceased was a passenger on a

plane of Capital Airlines, we will refer to the appellees as

United or the defendant.

It is alleged that the decedent was a resident of the

state of Ohio and that the plaintiff was duly appointed ad-

ministrator by the Probate Court of Wood County, Ohio.

The defendant denies the validity of the appointment, ap-

parently on the ground that the deceased was not a bona

fide resident of Ohio. For the purpose of this opinion, we

must assume that the deceased resided in the state of Ohio

at the time of his death.

On or about January 18, 1960, the decedent was a

passenger for hire on a Vickers-Armstrong Viscount air-

craft of the then Capital Airlines, Inc., a common carrier

of passengers by air. The deceased was a Captain in the

oe ene oe: gare 2 eer ee rere

United States Navy and was en route from Washington,

D. C., to Norfolk, Virginia. While the plane was being

operated in the vicinity of Charles City, Virginia, it

crashed as a result of the alleged negligence of the defend-

ant and the deceased was killed.

An action was filed by an ancillary administrator of

the estate of the deceased in the United States District

Court for the Eastern District of Virginia, Norfolk Divi-

sion, under the style Lawler, Administrator v. Capital

Airlines, Inc., United Air Lines, Inc., et al. On February

20, 1963, the district judge, in an unappealable order, held

that the Virginia statute limiting liability in a wrongful

death case to $30,000 was applicable. This action was dis-

missed without prejudice by the district judge on Decem-

ber 30, 1963. We do not regard this case as being in any

way determinative of the questions arising out of the’ case

filed in the Northern District of Ohio now before us.

The complaint was filed in the Ohio court on Novem-

ber 14, 1961. Subsequently, the district judge for the

Northern District of Ohio transferred the case to the East-

ern District of Virginia. The plaintiff then brought an

original action in this Court for a writ of mandamus to

require the district judge to vacate the order of transfer.

We held that there was no clear abuse of discretion and

denied the petition. Goranson v. Kloeb, United States Dis-

trict Judge, 6 Cir., 308 F.2d 655 (Oct 13, 1962). By order

dated April 10, 1963, 221 F.Supp. 820, the district judge

for the Eastern District of Virginia transferred the case

back to the Northern District of Ohio, for the reason that

the plaintiff did not have capacity to sue in Virginia.

The question in this case arises out of a conflict of the

law between Ohio and Virginia in* wrongful death cases.

Liability in Virginia is limited to $30,000 by Section 8-633,

et seq., Code of Virginia, 1950, as amended. Article I, Sec-

24

Hon 19a of the Constitution of the State of Ohio provides,

‘The amount of damages recoverable by civil action in the

courts for death caused by the wrongful act, neglect, or

default of another, shall not be limited by law.”

By order of March 2, 1964, entered on a motion for

summary judgment, the district -judge, for the Northern

District of Ohio, held that “the measure of damages in an

action for wrongful death is governed by the lex loci

delicti” and that the Virginia statute limiting liability to

$30,000 is applicable in this case. The district judge certiy.

fied that a controlling question of law was involved and

we allowed an appeal under Section 1292(b), Title 28,

US.C.

In a per curiam opinion in Goranson v. Kloeb, supra,

we said that under conflict of laws “Ohio.recognizes the

application of the principle of ‘lex loci delicti’ in wrongful

death cases” and that “The measure of damages is gov-

erned by the law of the place where the accident occurred.”

Because of the importance of the question on conflict of

laws and some recent decisions, we approach the question

presented de novo.

[1] Jurisdiction is invoked by reason of diversity of

citizenship (Section 1332, Title 28, U.S.C.) and Ohio law

is controlling. (Erie R. Co. v. Tompkins, 304 U.S. 64, 58

S.Ct. 817, 82 L.Ed. 1188.) It is conceded that the Supreme

Court of Ohio has never decided the particular question

involved.

[2, 3] As early as 1891, in Alexander v. Pennsyl-

vania, 48 Ohio St. 623, at p. 636, 30 N.E. 69, at p. 71, the

Supreme Court of Ohio said:

“An act should be judged by the law of the juris-

diction where it was committed; the party acting or

omitting to act must be presumed to have been guided

by the law in force at the time and place, and to

LLEGEL LEE POLE LOL LLLIO TE IT OEAEAL Fi phe IEE I pe em an 8 teeny . eerste Ese are er won-? — nme oe meee ree

ee ‘ >

er 25 a

which he owed obedience; if his conduct, according

that law, violated no right of another, no cause of

ction arose, for actions at law are provided to re-

, dress violated rights.

This rule of conflict of laws has heen continuously

followed in Ohio since that time. Ellis v. Garwood, 168

Ohio’ S. 241, 152 N.E.2d 100; Louisville & N. Rd. Co. v.

Greene, 113 Ohio St. 546, 149 NE. 876; Weiser v. Smith,

73 Ohio App. 380; Ford Motor Co. v. Barry, 30. Ohio App.

528, 165 N.E. 865; Louisville & N. Rd. Co. v. Greene, 26

Ohio App. 392, 160 N.E. 495.

‘We are asked by counsel for appellant, in this wrong-

_ ful death action, to establish a new rule for Ohio on the |

grounds that the Virginia limitation of damages:is against

public policy and that it would affect Ohio domidliaries

inequitably. It is argued that since the Ohio Constitution

(Art. I, Section 19a above quoted) prohibits any limita-

tions on damages in a wrongful death action in Ohio a

conflicts rule which accepts such. a limitation from any

other state is contrary to public policy in Ohio and ought

not be enforced. It is further argued that when the forum

state has significant contact with parties to the litigation

who would be adversely and unjustly affected by applying

a conflict of laws rule such as Ohio has,.it should be

abandoned. It is true in this case that the application of

the Ohio rule enforcing the Virginia limitation of damages,

would adversely affect the decedent’s family, in that the

amount of damages that might be recovered would be

: | limited to $30,000. :

The Supreme Court in Richards v. United States, 369

US. 1, 82 S.Ct. 585, 7 L.Ed.2d 492, has recognized that

there is a tendency on the part of some states “to depart

from the general conflicts rule in order to take into ac-

count the interests of the State having significant contact

bs

with the parties to the litigation.” 369 U.S. 12, 82 S.Ct.

592. We are urged to follow Kilberg v. Northeast Airlines

Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526, in

which the New York court, under similar circumstances

adopted the above reasoning and refused to accept the

Massachusetts limitation of damages.

There is a definite trend away, in tort cases, from the

general rule of conflict of laws in favor of the theory as

announced in the Kilberg case, supra. See the following

cases: Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944,

42 A.L.R.2d 1162; Schmidt v. Driscoll Hotei, Inc., 249

Minn. 376, 82 N.W.2d 365; Haumschild v. Continental

Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814; Kilberg v.

Northeast Airlines, Inc., 9 N.Y. 2d 34, 211 N.Y.S. 2d 133,

172 N.E.2d 526; Pearson v. Northeast Airlines, Inc., 309

F.2d 553, 92 A.L.R.2d 1162, C.A. 2, cert. den. 372 U.S. 912,

83 S.Ct. 726, 9 L.Ed.2d 720; Babcock v. Jackson, 12 N.Y.

2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1,

and Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d

796. It is to be noted thai all of these cases except Pearson,

were decided by state courts. No federal court deviated

from the rule of conflict of laws adopted by the state in

which it sat. In Pearson, supra, the Second Circuit fol-

lowed the New York court in Kilberg.

In a recent case, the Supreme Court of Oklahoma

declined to follow the lead of New York in Kilberg. The

Court said:

“‘(W)e decline to hold with the view that the pub-

lic. policy of this State pursuant to the theory of Sec-

tion 7 of Article XXIII of our Constitution is such or

so strong as to require a determination that the Mis-

souri statutory limit of $25,000.00, recovery in a

' -wrongful death action does not apply in a suit brought

- in Oklahoma.” Cherokee Laboratories, Inc. v. Rogers,

Okl., 398 P.2d 520, 525.

27

There is considerable discussion in the recent cases

on whether the extent of damages recoverable is to be

treated as part of the substantive or the procedural la

of the state.’ The reasoning in these cases is persuasive

’ ‘but we are not at liberty to adopt a new rule of conflict of

laws for Ohio, in the face of such a well established rule

as is now practiced in Ohio. In a case such as the one now

before us, a federal court sitting in Ohio is limited to in-

réting and applying the law of Ohio as it stands. Erie R.

Co..v. Tompkins, supra.

The recent case of Cherokee Laboratories, Inc. v.

Rogers, supra, is substantially similar to the case at bar.

The plaintiff's (Rogers) decedent was a passenger in an

airplane on a flight from Tulsa, Oklahoma, to a point in

Indiana. The plane crashed in Missouri and the decedent

was killed. An action was brought in Oklahoma, in which

state there is mo limitation of damages. Missouri has a

statute which limits the damages to $25,000.- The plaintiff

recovered judgment for $250,000. The Oklahoma Supreme

Court held that the substantive law of Missouri, includ-

ing damages, was applicable and reversed the trial court,

unless the plaintiff would accept a remittitur of $225,000.

The Court said in its opinion “Under the facts of the

present case we are not called upon to indicate what our

decision would he if the proof had shown specifically that

some of the elements of negligence relied upon by plain-

tiff had occurred in Oklahoma.” 398 P.2d 525. In a letter

supplemental to their brief, counsel for plaintiff quote this

statement and point out that there are acts of negligence -

alleged in their complaint which had occurred long prior |

*The only mention by an Ohio court on this subject is the

following statement by an intermediate court: “The accident,

occurred in Kentucky, the law of that state governs as to

liability and the measure of damages.” Louisville & N. Rd. Co. v.

Greene, 26 Ohio App. 392, 404, 160 N.E. 495, 499 (1927).

-

28

to the time of the flight and which was the proximate cause

© of the accident. It is not alleged that these acts of negli-

gence occurred in Ohio. In fact, they are not laid in any

particular jurisdiction. As in the Oklahoma case, we are

not called on to decide what might be the effect on the

plaintiff's case if it could be proved that acts of negligence,

which proximately caused the accident, occurred in Ohio

or some state other than Virginia.

We find no merit to the constitutional questions con-

cerning the Virginia statute presented by the appellant nor

to the argument that the Full Faith and Credit Clause of

the Constitution of the United States requires the rule of

the Kilberg case to be followed.

The motion of counsel for the defendant, which pre-

sents the question before us in this case, was denominated

a “Motion for Summary Judgment.” It was in fact a mo-

tion to limit liability for the amount of damages recover-

able by the plaintiff, rather than a motion for judgment.

We affirm the order of the district judge on this interlocu-

tory appeal that the maximum recovery for pecuniary and

pnitive damages may not exceed $30,000, for any act of

nexligence occurring in the State of Virginia which was

the proximate cause of the death of the decedent, Harold

Goranson.

”%

29 s 7

APPENDIX B.

ORDER OVERRULING PETITION FOR REHEARING AND

AMENDING OPINION.

(Filed August 26, 1965.)

Before: Weick, Mrtuer and Cecn, Circuit Judges.

The conflict of laws rule in Ohio in wrongful death

cases, such as the one now before us, is that the law of the

place where the wrong occurred is applicable and the

measure of damages is governed by that forum.

Upon the second and third grounds stated for rehear-

ing, the .Court will amend the opinion by adding at “the

end of the opinion, following the figure $30,000, “for any

act of negligence occurring in the State of Virginia which

was the proximate cause of the death of the decedent,

Harold Goranson,” and by striking the word “first” in the

first line of the second full paragraph on page two.

_ It is ordered that the petition for rehearing be denied

and that the opinion be amended as above stated.

Entered by order of the Court.

s/-Cart W. Reuss,

Clerk.

«

30

APPENDIX C.

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

(Filed May 25, 1965.)

Appgeat from the United States District Court for the

Northern District of Ohio

Tuts Cause came on to be heard on the record from

the United States District Court for the Northern District

of Ohio and was argued by counsel.

On ConsIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause and the same is hereby af-

firmed. .

It is further ordered that Defendants-Appellees re-

-cover from Plaintiff-Appellant the costs on appealiJas item-

ized below and that execution therefor issue out of said

District Court.

Entered by order of the Court.