Lead Opinion
Opinion by
George H. Hambrecht, a Pennsylvania domiciliary, purchased a ticket from United Airlines, Inc. [United] in Philadelphia for a flight from Philadelphia to Phoenix, Arizona, and return. On July 11, 1961, he boarded a United DO-8 bound for Phoenix. In the course of landing at Denver, Colorado, a scheduled stop, the plane crashed, causing Mr. Hambrecht’s immediate death.
United is a Delaware corporation with its principal place of business in Chicago. It regularly does business and maintains operational facilities in Pennsylvania.
Decedent’s will was probated in Pennsylvania. In July, 1962, the executor of the Hambrecht estate com
United and the individual defendants filed preliminary objections in the nature of a demurrer, in which they asserted that the complaint alleged a breach of warranty without alleging a valid basis therefor, that the complaint failed to allege any contractual relationship between the decedent and the individual defendants, and that although the complaint alleged crash and death in Colorado, the action was brought under the Pennsylvania survival statute.
The court of common pleas sustained the cause of action as having been brought under a valid contract of carriage but dismissed as to the individual defendants. However, the court held that the law of the place of the injury, Colorado, not the law of the forum, Pennsylvania, controlled on the matter of damages, and granted leave to amend. No amendment having
I.
Preliminarily, it is necessary to determine whether. the order directing plaintiff to amend is appealable. We have previously held that “an order sustaining preliminary objections to a complaint is definitive, and therefore appealable, where it so restricts the pleader in respect of further amendments as/virtually, to put him out of court on the cause of action which he seeks to litigate: [citing case].” Sullivan v. Philadelphia,
II.
The crux of this litigation lies in the differing measures of recovery granted in Colorado and Pennsylvania. Colorado’s survival statute provides: “All causes of action, except actions for slander or libel, shall survive and may be brought or continued notwithstanding the death of the person in favor of or against whom such action has accrued . . .; and in tort actions based upon personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death, and shall not include damages for pain, suf
Under the Pennsylvania survival statute, recovery may be had for the present worth of decedent’s likely earnings during the period of his life expectancy, diminished by the probable cost of his own maintenance during the time he would have lived and also by the amount of provision he would have made for the support of his wife and children during the same period. Skoda, v. West Penn Power Co.,
Since decedent’s death was apparently instantaneous, his estate could recover little under Colorado law, but might recover a substantial amount under the law of Pennsylvania.
III.
We turn now to the first major issue presented by the litigation: whether the action could properly be brought in assumpsit rather than in trespass.
United urges that in The Aeronautical Code of May 25, 1933, P. L. 1001, §406, 2 P.S. §1472, the Pennsylvania Legislature has specifically provided that an action against an air carrier by a passenger for personal injury must, as in other tort claims, be brought in. trespass. The Act directs: “The liability of the owner or pilot of an aircraft carrying passengers, for injury or death to such passengers, shall be determined by the rules of law applicable to torts on the lands or waters of this Commonwealth arising out of similar relationships.”
In the complaint, plaintiff characterized the contract on which suit was brought as a contract of “safe” carriage. As pointed out by the court below, this reference is inaccurate. It implies an absolute duty which would make the carrier an insurer of the safety of its passengers. Our Court has held that a public carrier owes to its passengers a high degree of care, but it is not an insurer of their safety. Sebum v. Luzerne & Carbon County Motor Transit Co.,
The complaint, however, did not limit itself to an allegation of simple breach of contract of safe carriage. The breach is specifically asserted to have been caused by the negligence of United’s agents, servants and employees while acting within the course of their employment. Thus, we may conclude that plaintiff is asserting a breach of contract of nonnegligent carriage, rather than merely simple breach of contract of safe carriage.
One Pennsylvania case involves a somewhat analogous situation. In M’Call v. Forsyth, 4 W. & S. 179 (1842), a stagecoach passenger was injured when the coach overturned. Our Court there ruled that plaintiff had a choice of remedies, either assumpsit or trespass on the case.
In Pittsburgh Rys. v. Givens,
The rule in New York is that an action may be brought in contract for personal injuries sustained by a passenger, but the action may not be brought in contract if death results. Kilberg v. Northeast Airlines, Inc.,
To summarize: Pennsylvania permits suit against a common carrier for damage to goods to be brought in assumpsit or trespass. There is no binding Pennsylvania authority which would either permit or prohibit such an election where a passenger is injured or killed. Maine permits an election, as does the common law of England. New York allows an election if the passenger is not killed.
We cannot perceive, nor has there been brought to our attention, any compelling reason for Pennsylvania to restrict an injured passenger to an action of trespass while, at the same time, a shipper may elect between trespass and assumpsit for damage to goods. We hold, therefore, that plaintiff may bring a valid action in assumpsit for the alleged negligent breach of contract of carriage which caused the death of plaintiffs decedent.
IY.
We now address ourselves to the basic choice of law problem. An easy answer is suggested in the argument that the Colorado limitation, by its own terms, is applicable only to tort actions. Since this is a contract action, the argument continues, we need not concern ourselves with the Colorado statute. To so dispose of the issue would be to ignore the realities of the situation. Counsel for plaintiff candidly admitted that this action was brought in assumpsit in order to avoid the effect of the Colorado limitation. Yet the
In this age of increasingly rapid transit of people and goods, that segment of the law known as conflict of laws, or perhaps more accurately, choice of law, has become more and more significant. In view of this development, it is of utmost importance that our Court re-examine its position in this field of law and make certain that our rules are in harmony with the realities of this age.
A.
For a great number of years, the rule of this Commonwealth has been that where suit is brought in our courts for personal injuries sustained elsewhere, the substantive rights of the parties are governed by the law of the place of the wrong. See, e.g., Vant v. Gish,
This place of the injury rule, sometimes termed the lex loci delicti rule, has been the subject of severe criticism in recent years. See, e.g., Restatement (2d), Conflict of Laws, Introductory Note No. 1 (Tent. Draft No. 9, 1964) ;
The basic theme running through the attacks on the place of the injury rule is that wooden application of a few overly simple rules, based on the outmoded “vested rights theory,” cannot solve the complex problems which arise in modern litigation and may often yield harsh, unnecessary and unjust results.
B.
Although the overwhelming majority of writers are opposed to retention of the place of the injury rule, there is disagreement as to the successor to that rule.
Other scholars would solve choice of law problems by applying the law of the state having the most sig
The position of the Restatement (2d), is that torts should be governed by the local law of the state which has the most significant relationship with the occurrence and the parties, and that separate rules apply to different kinds of torts. Contacts considered vital in determining the state of most significant relationship include place of injury, place of conduct, domicil of the parties, and the place where the relationship between the parties is centered. §379(2). The importance of the respective contacts is determined, in part, by considering the issues, the nature of the tort, and the purposes of the tort rules involved. §379(3). However, §379a of the new Restatement provides: “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern.”
The Restatement (2d) is not without its critics. In urging that the policies which should govern the field of conflicts cannot be set down in simple rules,
This is not to say that the place of the injury rule is without support. It is argued by some writers that adoption of a more flexible rule does away with certainty in the field of multi-state torts. Sparks, “Babcock v. Jackson—A Practicing Attorney’s Reflections upon the Opinion and Its Implications,” 31 Ins. Counsel J. 428 (1964). Also, the argument adds, the old rule is much easier to apply and facilitates the task of the attorney in advising his client. See Reese in “Comments on Babcock v. Jackson,” 63 Colum. L. Rev. 1212, 1251, 1254 (1963). The reply is simply stated. Ease of application and predictability are insufficient reasons to retain an unsound rule. Moreover, if the rule is indeed unsound, courts will create exceptions to it or Ayill attempt to circumvent it. Ibid.
This brings us to a consideration of some of the leading cases in which the lex loci delicti rule has been avoided or changed.
In Gordon v. Parker,
Grant v. McAuliffe,
In Schmidt v. Driscoll Hotel, Inc.,
The Supreme Court of Wisconsin, in Haumschild v. Continental Casualty Co.,
Kilberg v. Northeast Airlines, Inc.,
Although the Kilberg result is considered to be correct under modern conflicts theory, the manner in which it was reached has not been without adverse comment. See Leflar, “Conflict of Laws,” 1961 N.Y.U. Annual Survey of American Law 29, 43-45; Weintraub, “A Method for Solving Conflict Problems—Torts,” 48 Cornell L.Q. 215, 244-46 (1963) ; 46 Cornell L. Q. 637 (1961).
The constitutionality of Kilberg was questioned by the defendant airline in Pearson v. Northeast Airlines, Inc.,
The case to which most recent attention has been turned is Babcock v. Jackson,
Most of the comment on Babcock has been favorable. See “Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws,” 63 Colum. L. Rev. 1212 (1963), in which several of the leading authori
In Lowe’s Worth Wilkesboro Hardware, Inc. v. Fidelity Mutual Life Ins. Co.,
Y.
Thus, after careful review and consideration of the leading authorities and cases, we are of the opinion that the strict lex loci delicti rule should be abandoned in Pennsylvania in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.
It must be emphasized that this approach to choice of law will not be chaotic and anti-rational. “The alternative to a hard and fast system of doctrinal formulae is not anarchy. The difference is not between a system and no system, but between two systems; between a system which purports to have, but lacks, complete logical symmetry and one which affords latitude for the interplay and clash of conflicting policy factors.” Harper, “Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen’s Essays,” 56 Yale L.J. 1155, 1157-58 (1947). Moreover, in evaluating qualitatively the policies underlying the significant relationships to the controversy, our standard will be no less clear than the concepts of “reasonableness” or “due process” which courts have evolved over many years. See Cheatham in “Comments on Babcock v. Jackson,” 63 Colum. L. Rev. 1212, 1229, 1230-31 (1963).
We are at the beginning of the development of a workable, fair and flexible approach to choice of law which will become more certain as it is tested and further refined when applied to specific cases before our courts.
VI.
We now reach the point of application of the new approach to the facts of the instant case. The sole issue to be determined at this stage of the litigation is whether the Colorado limitation of damages is applicable so as to preclude recovery by plaintiff in our courts.
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 reasonable certainty that defendant acted in reliance on that state’s rule. Moreover, where the tort is unintentional, the reliance argument is almost totally untenable. Wein
Ordinarily, the place of the injury may have an interest in the compensation of those who render medical aid and other assistance to the injured party. However, where death is immediate, as on the present facts, that state has no such interest. The absence of Colorado’s interest on the specific point is amply illustrated by the statute which limits recovery to damages incurred prior to death.
An examination of the policies which apparently underlie that Colorado statute tends to indicate that state’s lack of interest in the amount of recovery in a Pennsylvania court. The limitation would seem to have been intended to prevent Colorado courts from engaging in what they might consider speculative computation of expected earnings and the extremely difficult mathematical reduction to present worth. The statute may be based on procedural considerations of purely local concern. Colorado would be unconcerned if a Pennsylvania forum is willing to engage in such computations. Or, the limitation might have been intended to protect Colorado defendants from large verdicts against them. Although United obviously does some business in Colorado, it is not domiciled there. Furthermore, it does business in and flies over other states, including Pennsylvania, which do not limit recovery. Certainly, United could reasonably anticipate that it might be subject to the laws of such states and could financially protect itself against such eventuality. The element of surprise is lacking.
Pennsylvania’s interest in the amount of recovery, on the other hand, is great. The relationship between decedent and United was entered into in Pennsylvania. Our Commonwealth., the domicil of decedent and his
From the foregoing analysis, we conclude that on the complaint before us (the facts of which must be accepted as true on preliminary objections), a valid cause of action in assumpsit has been stated and that the law of Pennsylvania is properly applicable to the issue of damages. Therefore, we must reverse the court below and remand for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Notes
An action in trespass for wrongful death was begun at the same time. However, that action is not now before us.
Our Court granted leave to file briefs amici curiae to tbe parties involved in a number of cases now pending before tbe United States District Court for tbe Eastern District of Pennsylvania. These cases, collectively known as the Barra ok cases, involve suits in tort and contract by tbe personal representatives of a number of Pennsylvania residents who were killed in tbe crash of an airliner in Boston on October 4, 1960. Amici curiae also participated in oral argument before our Court.
The court below sustained the institution of the action in assumpsit. In his appeal, plaintiff, of course, does not challenge that ruling. United could not appeal, since the ruling was interlocutory. However, in its argument here, the airline does challenge the propriety of that ruling.
This is distinguished from recovery for damage to goods shipped. Generally, a common carrier of freight is regarded an insurer against loss and bears the burden of showing that the loss was within an exception to the general rule. Arabian American Oil Co. v. Kirby & Kirby,
Whether all the benefits and limitations normaUy attached to an action characterized as assumpsit will automatically apply is not now before us and need not be determined here.
Had we attempted to pursue the easy solution suggested at the beginning of this discussion, we would examine Colorado law to see If the statute is, in fact, limited to tort actions. No Colorado holding on this issue has been called to our attention, nor has our research disclosed any. Although we cannot say with certainty, in all likelihood, the Colorado court would proceed with an analysis similar to that above and would conclude that the damages sought were, in reality, tort damages, to which the statute would apply regardless of the label placed on the action. We would ultimately be faced with the same choice of law problem.
It should be noted that the Restatement was cited in Vant merely as illustrative of a particular proposition. The opinion observed that the Restatement is in process of revision and that the Restatement (2d), also supported the stated proposition.
Tentative Draft No. 9 was approved by the American Law Institute at their meeting of May 21, 1964.
Professor Stumberg cites Carter v. Tillery,
Compare the various approaches and methods suggested in the following: Restatement (2d), Conflict of Laws, Chapter 9 (Tent. Draft No. 9, 1964, approved May 21, 1964) ; Ehrenzweig, Conflict of Laws (1962) ; Leflar, Conflict of Laws (1959) ; Stumberg, Conflict of Laws (3d ed. 1963) ; Cavers in “Comments on
This is substantially similar to Bednarowicz v. Vetrone,
Judge Fold is also the author of Auten v. Auten,
Professors Cavers, Cheatham, Currie, Ehrenzweig, Leflar and Reese.
See discussion of Ehrenzweig’s theory, supra, page 14.
See the discussion on the defense of the lex loci delicti rule, supra, page 17.
The Uniform Commercial Code, Act of April 6, 1953, P. L. 3, §1-105, as amended, 12A P.S. §1-105 (Supp. 1963), has adopted such an approach. Subsection (1) provides: “Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the par
Dissenting Opinion
Dissenting Opinion by
First: I would hold that the Order appealed from is not, as the Court’s Opinion states, “an order directing plaintiff to amend”; the Order appealed from is an Order sustaining preliminary objections and dismissing plaintiff’s complaint. Since the Order dismissed plaintiff’s complaint, it was not an interlocutory but a final Order and was therefore undoubtedly appealable.
Second: I agree with the able opinion of President Judge Sloane and strongly disagree with the majority Opinion. It substitutes for a clear and definite and
More particularly, I dissent for each of the following reasons.
(1) The majority Opinion admits that this is an action in assumpsit but then treats it as if it were an action in tort. It is not clear to me (a) how and why assumpsit lies, not for a breach of the contractual warranty of safe carriage, but for the breach through negligence of a contract of carriage or (b) how plaintiff escapes §406 of the Act of May 25, 1933, P. L. 1001, 2 P.S. §1472, which clearly covers and rules this case. It provides: “The liability of the owner or pilot of an aircraft carrying passengers for injury or death to such passengers, shall be determined by the rules of law applicable to torts on the lands
(2) For over 100 years the law of Pennsylvania has been clearly settled, namely, the substantive rights of the parties, as well as the damages recoverable
In the recent case of Vant v. Gish,
Moreover, the rights and liabilities of an airplane owner or carrier are not as new or novel as the majority suddenly discover. We all know that airplanes fly all over the earth, the sea, and the sky, and that airplane flights, take-offs and landings have undoubtedly created new and novel and difficult problems. These problems — including the question of exactly where the injury arose or accident occurred, and what caused it, and what is the appropriate form of action, and the proper forum, and what substantive law should govern, and what is the measure of damages which are recoverable — arose long before 1964 and have existed for approximately a third of a century.
Furthermore, the law of lew loci delicti has been applied specifically in a recent case arising from an airplane crash. In Rennekamp v. Blair, 375 Pa., supra, a unanimous Court, speaking through Justice, later Chief Justice, Jones, said (pages 621-622) : “This action was instituted in the Court of Common Pleas of Allegheny County [Pennsylvania] by the personal
“The substantive rights of the parties are to be governed by the lex loci delicti — in this instance the law of West Virginia: Randall v. Stager,
“The pilot’s duty to the passenger was to exercise ordinary care in the circumstances. By statute in this State [Pennsylvania] the liability of an owner or pilot of an aircraft for injury or death to passengers carried is to be determined according to the law applicable to torts on the lands or waters of the Commonwealth arising out of similar relationships: Act of May 25, 1933, P. L. 1001, Sec. 406, 2 PS §1472. Swain was admittedly a guest in the plane and not a passenger for hire. Accordingly, the pilot, and by the same token his employers (for the purpose of this case the defendants were the pilot’s employers), owed Swain the same degree of care that an owner or operator of a motor vehicle on land owes to a gratuitous passenger, that is, the care which a reasonably prudent man would exercise in the same or similar circumstances. Such is the rule generally. See Bruce v. O’Neal Flying Service, Inc.,
(3) The majority Opinion demonstrates (a) that it is impossible to formulate at this time a new and different test which can be applied with definiteness and certainty to many varied situations, and (b) it concedes that there is widespread “disagreement among the critics as to the successor to that rule”, i.e., lex loci delicti, and that it will likely have to be developed gradually and frequently changed, and (c) that it is so indefinite and flexible that it will also almost inevitably create instability, uncertainty, confusion and conflict of law throughout our Country, and will undoubtedly greatly increase the volume of litigation which is already swamping Courts, and thereby further delay speedy Justice. Practically speaking, the only thing certain about the new rule is that plaintiffs will bring their suits in or under the law of the State which allows them to collect the most damages.
Many examples could be given to illustrate and demonstrate the confusion, uncertainty and conflict which the majority’s new and flexible formula can and undoubtedly will create, but one will suffice.
Certain friends who are members of a trade association plan to use the same plane in flying to San Francisco to attend a convention. They live respectively in Boston, New York, Philadelphia and Houston. The plane is to commence its flight at Boston, with stops at New York, Philadelphia and Chicago. Those who
Under the majority’s new formula one may well ask in what Court or Courts suits for damages should be instituted by the families or estates of these four passengers, what State’s substantive law would apply and the law of what State would control the measure of damages? Other similar or varied states of fact will undoubtedly arise in the future to plague and vex the Courts and the legal profession. Without a fixed and inflexible rule, the result could be only confusion or chaos, plus an inevitable increase in conflict and litigation.
(4) I fear that the adoption of the majority’s new, indefinite and litigation-inviting test, which overrules Bennekamp v. Blair, 375 Pa., supra, and distinguishes without any legal distinction or justification Vant v. Gish, 412 Pa., supra (decided within less than a year), finally sounds the death knell to the principle of stare decisis which has been, and supposedly still is, a part of the law of Pennsylvania. Borsch Estate,
Stare Decisis — What, Why, Whither?
Stare decisis is a basic, fundamental principle of Law which provides certainty, stability and clarity to the law and enables American citizens, public officials, Congress and legislators alike, to know their powers, rights, limitations and liabilities and to conduct their private lives and to manage their private business and public affairs with certainty. However, — contrary to
Ever since Lord Coke, Chief Justice of England, enunciated (circa 1600) the famous and until recently the time-honored maxim of the law: “The knowne certaintie of the law is the safetie of all,” Stare Decisis has been one of the bed-rocks upon which the House of Law has been erected and maintained. This famous maxim has been a beacon light for Anglo-American Courts, for text authorities and for law-abiding Americans ever since the foundation of our Country.
As early as 1953, in Brown v. Allen,
Mr. Justice Frankfurter, in his concurring opinion in Green v. United States,
“It is obvious, if we are to progress, that there always will be exceptions to every general rule or principle, and that neither the law nor the principle of stare decisis can or should be as immutable as the laws of the Medes and the Persians. Nevertheless, it is obvious, at least to me, that the principle of stare decisis should not be ignored or extirpated, actually or effectually, because of changes in the personnel of a Court. Mr. Justice Franfurter has stated the two exceptions which to him seem justifiable. I agree with him, and while I would express the same thoughts a little differently, I would go further. I would hold that the principle of Stare Decisis should always be applied, irrespective of the changing personnel of this (or any other Supreme) Court, concept in the two situations set forth
Up to the present time the well settled and directly applicable law of lex loci delicti has created no uncertainty or confusion in its language or in its application. Furthermore, there are no new circumstances, there is no change of circumstances, there are no irreconcilable decisions of this Court, the law of lex loci delicti has been consistently — not fluctuatingly — applied, there is no convincing reason or any justification for a change in the law of Pennsylvania, especially where the newly formulated rule creates, as we have
This Griffith case does not fall within any of the aforesaid recognized exceptions to the principle of stare decisis.
For each of these reasons I dissent.
Italics throughout, ours.
On this point, see particularly, Rodney v. Staman,
The Restatement in this field is in process of change, bnt the exact change, or the exact formula, has not yet been finally determined.
The present trend to eliminate stare decisis from our law was foreseen by Justice Owen J. Roberts in 1944 in Smith v. Allwright,