*1 Appellant, v. United Inc. Griffith, Air Lines, *3 Before Argued April C. 1964. Bell, J., Jones, and Cohen, O’Brien JJ. Roberts, Eagen, Mm New York with Bar, of tbe Lee Kreindler, 8. appel- for V. Moss, and Jerrold Ackerman, Alvin 8. lant. and Miller George B. with him J.
Owen Rhoads, appellee. for Leibold, Arthur W. Jr., E.T. A. Lord, him Charles Toll, I. with Seymour Abra- II, Ralph Earle, R. Jr., McConnell, John Byrne, 8. Morris Borowsky, Milton M. Freedman, E. ham n & and Toll Cavanaugh, and Finkel, Richter, Lord, & Lewis Evans and Byrne, Morgan, Krusen, amici for Freedman, Landy Lorry, Bockius, curiae. & Henderson, and Rawle III,
J. McCabe, Grant curiae. amicus 1964:
Opinion October Mr. Justice Roberts, domiciliary, H. Pennsylvania George Hambrecht, Inc. purchased a ticket from United Airlines, [United] Philadelphia Philadelphia for a from flight he and return. On July 11, Phoenix, Arizona, *4 the In DO-8 bound for Phoenix. boarded a United of at a scheduled landing course Denver, Colorado, im- plane causing Mr. Hambrecht’s crashed, stop, death. mediate corporation is a princi-
United Delaware with its of in business It Chicago. does pal regularly operational and maintains facilities in Penn- business sylvania. probated
Decedent’s will was in In Pennsylvania. the executor of the Hambrecht com- July, estate assumpsit against and United action in menced an employees Pleas of of its in the Court Common certain complaint Philadelphia County.1 al- No. of6 leged, in contracted that United had substance, Philadelphia transport plaintiff’s safely decedent from contract, to Phoenix and that in of this return; breach employees, certain of course United’s named managed, employment, negligently operated, their had inspected airplane, maintained, controlled negligence from resulted; which the crash and death Pennsyl- pursuant brought that the action was to the Act) (contained vania Survival Act in the Fiduciaries April §320.603; P. L. P.S. §603, aas result of said estate decedent and his breach, damages including have suffered substantial loss prospective earnings accumulations of of the deceased. prelimi- United and the individual defendants filed nary objections in the nature of demurrer, they complaint alleged asserted that the a breach warranty alleging without a valid basis therefor, complaint allege any failed contractual rela- tionship between the decedent and the de- individual although complaint alleged fendants, crash and brought death Colorado, action was Pennsylvania under the survival statute. pleas
The court of common sustained the cause having brought action as been under a valid contract carriage but dismissed as to the individual defend- ants. place the court However, held that injury, Colorado, the law of the forum, Pennsylvania, controlled the matter damages, granted leave to amend. No having amendment trespass wrongful An action begun death was at However, same time. that action is not now before us. *5 ap- Plaintiff was dismissed. complaint
been filed, as to United.2 from dismissal pealed
I.
wheth-
to determine
it
necessary
is
Preliminarily,
appealable.
amend is
to
directing plaintiff
order
er. the
sustaining
that “an order
held
previously
We have
is
complaint
definitive,
to a
preliminary objections
pleader
it so restricts
where
appealable,
therefore
put
of
in
further amendments
respect
as/virtually,
he seeks
cause
action
on the
him out
court
Philadelphia,
Sullivan v.
[citing
to litigate:
case].”
or-
107 A. 2d
Th crux of this lies in the Penn recovery in Colorado and granted measures “All provides: Colorado’s survival statute sylvania. for or except libel, actions slander action, causes not shall survive and or brought continued the death of withstanding person in favor whom action against .; such has accrued . . tort actions based upon personal damages injury, recoverable the death person whose after such action has accrued shall be loss limited to favor expenses earnings prior sustained incurred and shall not death, include damages pain, suf- granted Our Court leave file briefs tbe amici curiae to parties pending in a number of involved cases now tbe before Pennsyl for tbe States District Court Eastern United District of collectively cases, cases, These known in vania. Barra ok personal representatives in tort and contract suits tbe volve Pennsylvania of a number of residents who were killed tbe airliner Boston October crash of an Amici curiae 1960. argument participated in oral before our Court. also *6 profits fering prospective or disfigurement, or nor earnmgs . .” Rev. Stat. date death. . Colo. after (Supp. 1960). (Emphasis supplied.) §152-1-9 Ann. recovery Pennsylvania Under survival the statute, likely present may be had for the worth of decedent’s earnings during period expectancy, di of his life by probable minished maintenance cost his own during by the the time he have lived also would provision sup amount of port he have for would made period. during of his wife and children the same Skoda, v. West Penn Power Pa. Co., 323, 335, (1963). A. 2d 828-29 apparently
Since decedent’s death was instantane- his ous, estate could recover little Colorado under might but law, recover a substantial amount under the Pennsylvania. law
III. major presented by We turn now to the first issue litigation: whether properly the action could be brought assumpsit trespass.3 rather than in urges
United May that in The Aeronautical Code of Pennsyl- P. L. 25, 1933, 1001, §406, P.S. §1472, Legislature provided specifically vania an ac- against tion by passenger personal an air carrier for injury brought must, other tort be in. claims, trespass. liability The Act directs: “The of the own- pilot er carrying of an passengers, aircraft for in- jury passengers, or death to such shall be determined by applicable the rules of to torts on lands arising waters this Commonwealth out of similar relationships.” 3 The court below sustained the institution of the action assumpsit. appeal, plaintiff, course, In his challenge does not ruling. appeal, ruling United could not since the was inter locutory. However, argument here, in its the airline chal does
lenge propriety ruling. of that meaning clear
Contrary
position,
United’s
for
actions
in tort
of the statute is
and intention
ap
rules
special
air
no
disasters,
sustained
injuries
on land
to torts
airplanes
plicable only
—but
negligence,
utilized. The rules
or water —should
liability,
of proof,
burden
degree
care,
duty,
e.g.,
carriers.
other
as for
airplanes
the same
remain
2dA.
Pa. 620, 628,
Rennekamp
Blair,
See
con-
characterized
plaintiff
In the complaint,
“safe”
contract
as a
suit was brought
tract
ref-
this
out
the court
pointed
below,
As
carriage.
*7
duty
absolute
implies
It
an
inaccurate.
erence is
safety
an
of
carrier
insurer
make the
which would
public
that a
Court has held
Our
passengers.
of its
of care,
degree
to its
a
passengers
high
carrier owes
v. Lu-
their safety.
an insurer of
Sebum
it
but
is
shipped. carrier of an a common showing against and bears the burden of loss insurer general exception to the rule. Arabian Ameri within was loss Kirby Kirby, Superior & 171 Pa. Ct. 2d Co. v. 90 A. Oil can (1952). goods Pennsylvania permits shipper whose law damaged ei- or maintain have been lost transit assumpsit or ther an for contract action breach trespass against negligence car- an action in for duty. Co., for Electrical rier its breach Robinson Capitol Trucking Superior Corp., Inc. v. Ct. 168 Pa. Pennsyl- 79 A. But there is no 2d 123 authority against vania for election either a similar personal injuries sustained a result a car- negligence. rier’s Pennsylvania
One analo- case a somewhat involves gous Forsyth, situation. In & 179 M’Call v. W. S. (1842), stagecoach passenger injured when was plain- coach overturned. Our Court there ruled assumpsit tiff had a choice of tres- either remedies, pass on the case. Pittsburgh Rys. (3d
In
The in rule New York may is that an action be brought personal injuries in contract for sustained passenger, a but action brought not in con- Kilberg tract if death results. v. Northeast Airlines, 9 N.Y. 2d Inc., N.E. 2d 526, 211 N.Y.S. 2d 133 (1961). In Maine an assumpsit action also, in may be passenger brought by personal injuries. a for Doughty Transp. v. Central Maine Co., Me. 124, A. 2d 758 rule English in the opinion below, As noted properly passenger may injured to be that appears v. Protheroe or his election. assumpsit in case at sue Railway Executive, [1951] 1 K.B. 376; Taylor v. Manchester Ry., [1895] Q.B. 134; Kelly Metro Q.B. 944. politan Ry. Co., [1895] against suit permits Pennsylvania To summarize: brought to be to damage goods a common carrier for Penn- binding in or is no trespass. There assumpsit pro- permit either would authority which sylvania injured hibit an where a is passenger such election com- an as does permits election, killed. Maine if election York an mon allows law New England. not killed. is passenger brought nor there been cannot perceive, We Pennsylvania reason for any compelling our attention, tres- to an action injured passenger to restrict be- at a elect pass shipper may the same while, time, goods. assumpsit trespass damage tween valid plaintiff therefore, may bring We hold, breach for the assumpsit alleged negligent action death carriage which caused the contract plaintiffs decedent.5 .
IY. ourselves to the basic choice We now address An ar- answer is problem. easy suggested that the Colorado own limitation, by its gument terms, to tort actions. Since is con- applicable only this argument we need action, continues, tract the Colorado ourselves with statute. To so concern would be to ignore of the issue the realities dispose for plaintiff Counsel candidly situation. admitted was brought assumpsit this action order to of the Colorado the effect limitation. avoid Yet normaUy all the benefits limitations Whether attached assumpsit automatically apply will characterized an action *9 need not be us determined now before here. is not is a tort recovery sought recovery damages clearly — decedent’s estate of negligently result decedent’s caused death. The de- principles govern which will not of fendant’s are liability principles of negligence, since the action for contract, negligent breach, simple un- contract. As indicated breach, above, we der the facts before breach of simple an action us, contract not and would could not a substantial justify recovery plaintiff. re- by of this case essentials main the regardless same of its label. Mere technicali- ties of should not blind us true nature pleading to the of the action. The choice of same law will be the whether the action is trespass assumpsit.6 labeled
In this age increasingly rapid people transit goods, segment the conflict law known as laws, perhaps more choice of law, accurately, has become more and significant. more In view this development, it is utmost importance our Court re-examine position its in this field of make certain that our rules are with the harmony realities of age. this
A. For a great number of the rule of Com years, this monwealth has been that where suit is in our brought for personal courts injuries sustained the elsewhere, substantive rights parties are governed law of of the wrong. See, Vant v. e.g., Gish, 412 Pa. A. 365-66, 2d 522, 526 (1963); Bed- attempted pursue easy Had we suggested solution at beginning discussion, of this we would examine Colorado law is, fact, see If the statute limited to tort actions. Colo No holding rado on this attention, issue has been called to our nor any. Although has our research say disclosed we cannot with certainty, likelihood, in all proceed the Colorado court would with analysis to that similar above and would conclude that were, damages sought reality, damages, tort to which stat regardless apply placed ute would of the label action. We ultimately problem. with be faced would same choice of law
12 687 A. 2d
narowics v. 400 Pa. 162 Vetrone, 385, A. 2d 101 v. Pa. 620, 375 Rennekamp Blair, (1960); 2d 89 A. v. 371 Pa. (1954); Staman, 1, 669 Rodney Atl. 775 Pa. 185 313 Mike v. 322 (1952); Lian, 353, 148 (1830). 2 Pen. & v. W. Thompson, (1936); Barclay have cases In of the more recent support this rule, Restatement, original reliance on the placed great §378, of (1934), particularly Conflict Laws wrong place “The of the states categorically, in legal sustained person determines whether Ren supra; Bednarowicz v. Vetrone, jury.” See, e.g., cf. Staman, supra; v. v. nekamp Blair, supra; Rodney supra.7 Vant v. Gish, termed sometimes injury rule,
This of severe subject lex loci delicti has been rule, (2d), Restatement e.g., in recent years. See, criticism 1 (Tent. Note No. Introductory of Laws, Conflict 199- of Laws 1964) Conflict No. ;8 Stumberg, Draft 9, ed, Choice- “A of the Critique 212 1963); Cavers, (3d (1933); 47 Harv. L. Rev. 173 of-Law Problem,” Law,” Applicable of the & “Choice Cheatham Reese, “Comments Currie in (1952); L. Rev. 959 52 Colum. in Con- Development A Recent v. Jackson,9 on Babcock (1963) 1233 Colum. L. Rev. 63 1212, flict Laws,” Jackson”]; on Babcock “Comments [hereafter Relationship’ Significant “The ‘Most Ehrenzweig, Prob. Contemp. 28 & Law Torts,” Law Conflicts Conflict Bases “Policy Harper, (1963); 700 Lorenzen’s Professor Rereading on Reflections Laws: in Vant was cited the Restatement be noted 7 It should opinion proposition. particular merely of a as illustrative process revision the Restatement observed proposition. supported (2d), stated also Restatement approved Law the American No. 9 was Draft 8 Tentative May 21, meeting 1964. at their Institute (1963). N.Y.S. 2d 743 N.E. 2d 2d 12 N.Y. cases, leading infra. other with discussed will case This Essays,” 56 Yale L.J. “The 1155 (1947); Morris, Proper of a Law 64 Harv. Tort,” (1951); L. Rev. 881 Reese “Comments Babcock v. Jackson,” Colum. L. Rev. This (1963); “Is Traynor, Conflict Really Necessary?” Texas L. Rev. 657 (1959); L.Q. authorities cited 46 Cornell 640 n.20 and 62 (1961) Mich. L. Rev. 1358 n.3
The basic theme on the running attacks through place of the rule is that injury application wooden *11 simple few overly based on the outmoded rules, “vest- ed rights problems cannot solve theory,” complex the in arise modern litigation and often yield harsh, unnecessary unjust results.10 g., e. See, Cheatham & Reese, supra; Ehrenzweig, supra; Reese, supra.
B. the Although overwhelming majority of are writers opposed of retention the place of the injury rule, there disagreement as to the successor to that rule.11 10 Stumberg Tillery, Professor cites Carter v. 465 257 S.W. 2d (Civ. App. 1953), example unjustness Tex. as extreme rigid, Plaintiff, unreasoned adherence to the rule. her hus defendant, band Texas, flight all residents of were on a from Paso, Texas, private plane. New Mexico to El in defendant’s plane strayed off course and landed on dirt in road Mexico. attempting off, plane While take crashed. forum The Texas injury, Mexico, applied. held the law of the Since remedy the Mexican so was dissimilar from that in afforded Texas, grant Ap the Texas court refused to relief and dismissed. parently, parties Texas, all because were suit could residents brought Thus, plaintiff not have been in Mexico. loft with was Stumberg, ; (3d 1963) out redress. Conflict of Laws 210-211 ed. “ Stumberg, Wrong’ Place ‘The and the Conflict of — Torts 388, Laws,” (1959). L. 34 Wash. Rev. 399 11Compare approaches suggested the various methods following: (2d), Chapter Laws, Restatement Conflict of 9 approved 9, May 21, 1964) (Tent. ; Ehrenzweig, Draft No. Leflar, (1962) ; (1959) ; of Laws Conflict of Conflict Laws Stum- 1963) (3d ; berg, ed. of Laws Cavers in on Conflict “Comments ap ou places great stress approach Professor Currie’s forum has the forum law of where plication it. Currie before a' interest the issue legitimate Rev. L. on Babcock v. 68 Colum. “Comments Jackson,” Conflict of Laws §122 (1963); Ehrenzweig, “The Conflicts Restatement Second ; Comments, (1962) 779-82 A of Torts: 51 Calif. L. Rev. 762, Caveat,” also . while Ehrenzweig’s Professor (1963) view, great forum stressing application places law, opposed emphasis on the interests of the parties, de whether particularly governmental interests, un adequate could obtain insurance fendant liability could insurer der the and whether applicable law reasonably premium. Ehrenzweig calculate Colum. L. Rev. Jackson,” “Comments Babcock “Conflict of (1963); Leflar, Laws,” see “The ; Rev. Second (1961) Comments, N.T.U.L. A Calif. Conflicts Restatement Torts: Caveat,” 782-91 see (1963); generally Ehrenzweig, L. Rev. 762, Conflict Laws problems
Other would solve choice of scholars *12 law of state the most having sig- the the by applying (1963) Jackson,” 1212, ; v. L. Rev. Babcock 63 Colum. 1219 Law,” Reese, Applicable L. & “Choice of the 52 Colum. Cheatham Jackson,” (1952) ; on v. in “Comments Babcock Rev. 959 Currie Ehrenzweig, (1963) ; ‘Most 1233 “The Colum. L. Rev. 63 Torts,” Relationship’ Significant in 28 the Conflicts Law of (1963) Harper, “Policy Contemp. ; the of Prob. 700 Bases Law. & Rereading Lorenzen’s of Laws: Reflections Professor Conflict (1947) ; Essays,” Leflar in “Comments on Bab 56 Yale L.J. 1155 Leflar, (1963) Jackson," ; Rev. 1247 Colum. L. cock v. 63 Laws,” Reese, (1961) ; “Conflict Rev. of N.Y.U.L. 36 36 “Conflict Second,” Contemp. Prob. 28 & the Restatement Law and of Laws Necessary?” Traynor, Really (1963) ; Conflict 37 “Is This 679 Weintraub, Solving (1959) ; Con “A Method for L. Rev. 657 Texas Comments, (1963) ; Torts,” Cornell L.Q. 215 48 flict Problems — Caveat,” Calif. of A Restatement Torts: Conflicts Second “The “Symposium, generally ; in the (19639 New Trends see Rev. L. ” Contemp. (1963). Laws, & Prob. 673 28 Law of Conflict particular relationships nificant contacts or the with they Although slightly in differ the man issue. relationships ner which these and contacts are place importance analysis upon all evaluated, policies underlying conflicting of of the the laws relationship particular the of those the contacts to policies. See Cheatham in “Comments on Babcock (1963) 68 Colum. Har L. Rev. ; Jackson,” supra per, 11; note Leflar in on Babcock “Comments (1963); v. Jackson” 63 Colum. L. Rev. of Reese, “Conflict the Sec Laws and Restatement Contemp. (1963); ond,” Law & Wein Prob. 679 Solving “A Problems— traub, Method Conflict L.Q. 48 Cornell Torts,” position (2d),
The the Restatement is that torts governed by should be the local law of state which the significant relationship the has most the occur- with separate parties, apply rence and the and that rules different kinds torts. vital Contacts considered determining relationship significant the state of most place place injury, include domicil conduct, parties, relationship the and the be- where the parties impor- §379(2). tween the is centered. respective part, tance the contacts is determined, by considering the nature issues, tort, purposes §379(3). tort rules involved. provides: §379a of “In However, new Restatement personal injury, an action for a the local law of the injury rights occurred state where determines the parties, and liabilities of other unless some state significant relationship a more the occurrence with parties particular as to issue involved, the local which event latter state will govern.” *13 (2d)
The Restatement is without its critics. policies urging govern In that the which should the simple cannot field conflicts set down in be rules, 16 Ehrenzweig opposed Re-
Professor is to the new as Ehrenzweig, e.g., as he to old. statement was See, Significant Relationship’ “The ‘Most the Conflicts (1963). Contemp. 28 Law Law & Prob. 700 Torts,” Restate- Currie is the new Professor concerned in §379a, old rule ment, quoted has retained the effect, v. Currie in “Comments on Babcock
above. (1963). Others Jackson,” 63 L. Colum. Rev. 1212, “signifi- are concerned that Restatement, relationship” theory on it based, cant is theory, nothing contact-counting become more than a policy analysis underlying considera- of the without v. Jack- tions. Leflar in on Babcock See “Comments (1963); 63 Colum. L. Rev. son,” 1247, Solving “A Method for Conflict Problems Weintraub, (1963) L.Q. ; Comments, Cornell —Torts,” “The of Torts: A Cave- Second Conflicts Restatement (1963). noted L. 51 Calif. Rev. 762 However, at,” agree must all there almost authorities earlier, place approach replace policy analysis to injury rule. say injury rule is not to that the This support. argued by It is is without adoption some writers away does with cer a more flexible rule tainty Sparks, “Bab in the field torts. of multi-state Practicing Attorney’s Reflections Jackson — A cock v. Opinion Implications,” upon Coun and Its Ins. argument (1964). old Also, J. 428 adds, sel apply and facilitates the task much easier is rule advising attorney his client. Reese See L. on Babcock Colum. Rev. Jackson,” “Comments reply simply stated. predictability application are insufficient Ease of unsound rule. if the to retain Moreover, reasons exceptions courts will create unsound, indeed rule is Ayill it. circumvent attempt Ibid. it
17 c. brings
This to a the us consideration of some leading cases in the lex delicti loci rule changed. been avoided Supp. (D.
In Gordon v. 83 Mass. Parker, F. 1949), Pennsylvania brought domiciliary a in the suit Federal District Court of for alienation Massachusetts of his wife’s affections resident. Massachusetts apparent Pennsylvania, the matrimonial domicil and injury, had such causes of ac- abolished acknowledged tion; Massachusetts had not. The court original position the However, the Restatement. expressly analyzing policies after the interests the two court ruled that Massachusetts states, governed judg- summary law and denied motion for ment.
Grant 41 Cal. 264 P. McAuliffe, 2d 2d (1953), involved in a collision Arizona two between containing California automobiles residents. California permit Arizona law would not com- an action to be menced after death im- tortfeasor; California posed applica- no such limitation. In order to avoid tion of the lex loci delicti court the California rule, question characterized the survival a matter of ad- governed by ministration of decedents’ estates, of the forum. Justice wrote deci- who Traynor, regard later commented that sion, he did it as ideally policy analysis, but that on it articulated, right application reach the did Cali- result, i.e., Traynor, Really fornia law. sary?” “Is This Conflict Neces- 37 Texas L. Rev.
In Driscoll Schmidt v. Hotel, Minn. Inc., (1957), 2d N.W. ille- defendant, Minnesota, liquor person gally an sold intoxicated auto- whose in a was involved collision with mobile another Min- A automobile while Wisconsin. nesota Minnesota imposed shop” liability act “dram for the intoxicated tavern-keeper upon person’s made who conduct imposed illegal liability un- no on seller was sale; observed The court der Wisconsin law these facts. apply, inter- that should old Restatement rule liquor punishing its est Minnesota violations remedy providing injured party with a laws and negated. the Wisconsin So also be would would *15 affording injuries in in Wiscon- interest remedies for liquor resulting foreign The from violations. sin place apply in- the of the court refused law jury. Forum that of controlled. law, Minnesota, Supreme in
The Court of Haumschild Wisconsin, Casualty Continental 2d 95 N.W. Co., v. 7 Wis. 130, by (1959), a 2d 814 had before it a suit Wisconsin against injuries ain husband for sustained wife her in Wiscon motor collision California. Under vehicle may in Cali her in tort; a wife sue husband sin law, expressly may not. abandoned she The court fornia, applied original to the facts rule Restatement as specifically doing a it in overruled and, before long so, issue characterized the line cases. The court “family applied the one of not tort law,” law, The caution was ex law the Wisconsin. domicil, pressed, con that the should not be decision however, rejection general of the rule that the sidered as rights injury place governs of the the substantive parties ordinary of the under circumstances.
Kilberg 2d 9 N.Y. Airlines, Northeast Inc., factually (1961), 172 N.E. 2d N.Y.S. 2d is passenger A case. York who to the instant New similar City an airliner York had boarded New for Boston plane crashed in killed when Massachusetts. was brought theory negligent on the breach of was Suit carriage in order to avoid the contract injury and Massachusetts limitation of rule $15,000 wrongful initially actions. court death The held on permits passenger New York con- sue although injured, tract where he be no action such brought where death in deliberate results. However, the court Massachu- dictum, went to consider the possible application setts limitation and its wrongful death action which was not then before precluded concluding public policy court. After application of meas- held that court limitation, damages procedural governed ure of ais matter to be by the forum. law the
Although Kilberg cor result is considered theory, rect under modern conflicts the manner it which was reached adverse been without comment. See “Conflict of N.Y.U. Leflar, Laws,” Survey Annual of American 43-45; Law Wein Solving “A traub, Method Conflict Problems— (1963) L.Q. Torts,” Cornell Cornell 244-46 ; Q.L. questioned constitutionality Kilberg was
the defendant airline in Pearson v. Northeast Airlines,
*16
(2d
1962),
Inc.,
ably acknowledged
tendency
de-
courts
recent
part
injury
take
order to
of the
rule in
from
having contacts
states
into account the interests of the
parties.
v. United
Richards
the issues and the
with
(1962).
Ct.
592-93
369
82 S.
12-13,
585,
U.S.
States,
been
recent attention has
to which most
The case
191
Most of A Recent on Babcock v. “Comments Jackson, ble. See Development in Conflict of 63 Colum. L. Rev. Laws,” leading (1963), several of authori- substantially Vetrone, similar Bednarowicz This (1960), applied in which our A. 2d 687 Court Pa. the cause of and dismissed action. See note of Ontario accompanying supra, text. *17 Auten, Judge Auten is also the author of v. 308 N.Y. Fold (1954), in which New York abandoned 2d 99 124 N.E. (place in mak of law rules contracts cases choice traditional etc.) gravity” performance, favor of a ing, “center theory. “grouping of contacts” expressed ties But have decision.14 their views on the ” Ehrenzweig see Jackson “Comments on Babcock v. supra, Sparks, at 1243 v. Jackson — A ;15 “Babcock Practicing upon Opinion Attorney’s Reflections (1964).16 Implications,” Its As 31 Ins. Counsel J. 428 opinion con Professor Currie observed, “Indeed, every tains of the items comfort for critic almost system.” traditional Bab Currie “Comments supra, cock v. at 1234. Jackson,” In Lowe’s Worth Wilkesboro Inc. Fi v. Hardware, delity (4th Mutual Ins. 319 F. Cir. 2d 469 Co., Life 1963), plaintiff brought a North Carolina an action against Pennsylvania in that state insurance com pany negligent delay appli acting upon an Pennsylvania cation for life insurance. which law, applied. denied such a cause of was The court action, appeals Pennsylvania held so because had “the significant relationships constituting most with events alleged parties.” tort with the Id. at See 473. George Douglas also Co., 332 F. Inc., 2d Aircraft (2d 1964). Cir.
Y.
after
Thus,
careful review and
consideration
leading
opin-
authorities and
we are of the
cases,
ion that the strict lex loci delicti rule should be aban-
Pennsylvania
doned in
in favor of a more
rule
flexible
permits analysis
policies
un-
interests
particular
derlying issue before the court.17 As
Cavers, Cheatham, Currie, Ehrenzweig,
Professors
Leflar
and Reese.
Ehrenzweig’s
theory, supra, page
See discussion of
14.
the discussion on the
See
defense of the lex loci delicti
rule, supra, page 17.
Code,
April 6, 1953,
Uniform Commercial
Act
P. L.
amended,
3, §1-105,
(Supp. 1963),
12A
adopted
P.S. §1-105
as
approach.
(1) provides:
“Except
provided
Subsection
such
section,
in this
when a transaction
bears a reasonable
hereafter
par-
state and also to another
to this
state
nation
relation
*18
481-82,
supra, 12 N.Y. 2d at
Jackson,
said Babcock v.
of
merit
“The
2d at 749,
We approach fair and flexible of law choice workable, certain fur- become more as it is which will tested applied specific our refined when ther cases before courts. may agree either the law of this state or of such other
ties rights Failing govern their such nation shall and duties. state or applies hearing agreement appropriate to transactions this Act (Emphasis supplied.) this state.” relation We acknowledge approach adopting new in the area choice overrule we law, necessity, our earlier cases based the lex But loci delicti rule. we must not perpetuate an ad- obsolete rule blind *19 herence to the principle of ad- stare decisis. Although herence to that principle is a course generally wise judicial it does not command we action, rigidly follow without deviation earlier pronouncements which are unsuited to modern experience and which no long- er adequately serve the interests of the justice. Surely, orderly development of the to responsive law must be new conditions and to persuasion rea- superior soning. “[Wjhen a after it has been tested rule, duly by has been experience, found to be inconsistent with the sense of justice or with the social there welfare, should be less hesitation in frank avowal and full aban- donment. . . . There should be to greater readiness abandon an untenable position when be the rule to discarded reasonably supposed to have de- termined the conduct of the litigants, particularly in when its it origin was the product of institutions conditions which gained have significance new development Avith the progress the years.” Cardozo, The Nature of the Judicial Process 150-51 (1921).
VI. We now reach the point of application of new to approach facts the instant case. The is- sole to sue be determined at this stage the litigation is whether the Colorado limitation of damages appli- is preclude cable so as to recovery plaintiff by in our courts.
The state which injury as occurred, has such, little relatively interest the measure of damages it be recovered unless can be said with cer- reasonable acted in tainty defendant reliance on that state’s rule. where the tort Moreover, is unintentional, is almost reliance argument totally untenable. Wein- Solving “A Problems— Method Conflict tranb, L.Q. is This Cornell Torts,” 215, 220, present abundantly of the in the case; clear the site purely was accident fortuitous.
Ordinarily, injury may in- have compensation medi- terest render of those who injured party. How- cal aid and other assistance to the present facts, where death is ever, immediate, Colo- that state no such interest. The absence specific point amply illustrat- rado’s on the interest damages recovery ed statute which limits prior incurred to death. apparently policies
An examination of to indicate underlie that Colorado statute tends recovery in state’s lack of interest the amount of Pennsylvania court. limitation seem would prevent *20 from been to courts have intended Colorado engaging they might speculative com- what consider putation expected earnings extremely of diffi- the and present The cult mathematical reduction to worth. may procedural of based on statute be considerations purely local unconcerned concern. Colorado be would Pennsylvania willing engage in such if a forum to is computations. might in- the been limitation have Or, protect large ver- to tended Colorado defendants from against Although obviously dicts them. United does it not domiciled there. some business is Colorado, other it does in and over business flies Furthermore, including Pennsylvania, which not limit re- do states, anticipate covery. Certainly, reasonably United could subject might to it the of that laws such states protect financially against itself could such eventuali- surprise lacking. ty. The element of is Pennsylvania’s recovery, interest in the amount of great. relationship other is between hand, on the Pennsylvania. and United was entered into in decedent Commonwealth., the domicil of his decedent and Our vitally family, is administration concerned with the surviving well-being decedent’s estate dependents granting recovery, in- to the extent of full strong cluding expected earnings. policy This is so it Penn- has been embodied in the Constitution Assembly sylvania, §21: Article “The General III, requiring payment by employers, em- enact laws ployers compensa- employes jointly, of reasonable injuries employes arising for tion to course in the employment their . . hut in no other cases shall .; Assembly limit amount he recovered General to injuries resulting per- injuries death, or for property, sons and in in- case death such from juries, right (Empha- action shall .” survive . . . supplied.) sis foregoing analysis,
From the on we conclude complaint (the before us must be facts accepted preliminary objections), as true a valid assumpsit cause action has been stated and Pennsylvania properly applicable the law of is damages. issue we Therefore, must reverse proceedings court below and remand for further opinion. inconsistent with this
Reversed and remanded. Dissenting Opinion by Mr. Chief Bell: Justice appealed
First: I hold would that the from Order Opinion as the Court’s not, is ing plaintiff “an order direct- states, appealed Order amend”; from *21 sustaining preliminary objections an Order and dis- plaintiff’s complaint. missing Since the Order dis- plaintiff’s complaint, missed it was not an interlocu- tory undoubtedly Order but a final and was therefore appealable. agree opinion I
Second: with the able of President Judge strongly disagree majority and with the Sloane Opinion. It substitutes for a clear and definite and
26 certainty stability, a new well settled rule with its obviously in- nebulous and is so tentative rule which capable many different definite and flexible and is of so interpretations applications undoubt- it will produce edly uncertainty, between conflicts confusion, litigation. and increased States, particularly, follow- I for of the More each dissent ing reasons. Opinion majority
(1)
an
this is
admits
assumpsit
it
it as if were
action
but then treats
why
(a)
It
action
tort.
not clear me
how
assumpsit
war
not for a
of the contractual
breach
lies,
neg
through
ranty
carriage,
but for the
safe
breach
plaintiff
carriage
(b)
ligence of
or
how
a contract
escapes
May
§406
1001,
L.
of the Act of
P.
1933,
25,
clearly
this case.
2
rules
covers and
P.S. §1472,
liability
pilot
provides:
of an
“The
or
It
of the owner
carrying passengers
injury
to such
aircraft
or death
ap
by
passengers,
determined
the rules
shall be
plicable
Com
to torts on the
of this
lands* waters
relationships.”
arising
out
similar
monwealth
years
Pennsylvania
(2)
For over 100
the law
rights
clearly
namely, the substantive
has been
settled,
damages
parties, as well as the
recoverable**
place
wrong
governed
the law the
are
expressed,
where
as it is sometimes
the law the
injury
Gish,
occurred — lex loci delicti: Vant v.
412
(1963);
A.
194
2d
526
Bednaro
365-366,
522,
Pa. 359,
(1960)
Pa.
162
;
v.
400
A. 2d 687
Vetrone,
wicz
Rennekamp
(1954) ;
v.
375 Pa.
27
Mackey
355 Pa.
49 A. 2d
v.
352, 354,
689;
Robertson,
328 Pa.
A.
Mike
504,
195
322 Pa.
506,
870;
Lian,
353,
v.
(1936);
In the recent case Vant v. 412 Pa. Gish, through (1963), speaking A. 2d 522 Justice the Court, (page 365) pre said : “Under the usual and Roberts, vailing doctrines tort the situs laws, of conflict of Openbrier injury. is the General See v. (1940); Mills, Pa. 16 A. Mike Inc., 2d 379 (1936) Lian, Pa. 185 Atl. ; Restatement, (1934).”* §377 Conflict of Laws, rights airplane Moreover, liabilities an or owner carrier are not as new novel ma- as the jority suddenly airplanes all discover. We know that fly all sky, over the and the earth, sea, and that airplane flights, landings take-offs and have undoubt- edly problems. created new novel and difficult question problems including These exactly — injury where the arose or accident and what occurred, appropriate caused and what it, form of action, proper and the forum, what law substantive govern, should damages and what is the measure of long which are recoverable—arose before 1964 and have approximately century. existed a third of a lew Furthermore, loci delicti has been applied specifically arising a recent case from airplane Rennekamp crash. In v. Blair, su- Pa., pra, speaking through unanimous Court, Justice, (pages Chief later said Justice, Jones, 621-622) : “This action was instituted the Court of Common Pleas County Allegheny [Pennsylvania] personal * process Restatement this field is change, bnt change, formula, yet the exact exact finally has not been determined. re-
representatives deceased, F. Swain, of James *23 wrongful damages crash, in the death cover for his airplane private Virginia, of a West Charleston, near passenger. guest defendants The he a in which was procured airplane' the and of the were the owners trip plane the pilot’s of the for Swain’s use services fatally .... that ended parties rights to are
“The substantive the by governed instance loci delicti—in this the lex Stager, Virginia: 352, Pa. Randall v. law of West §379. Conflict of Laws, 689; 49 A. 2d Restatement, right Virginia Code confers a of the West Section by wrongful dece the death enforceable for of action representative; the personal limits section dent’s damages more to not in such an action recoverable .... than $10,000 duty passenger pilot’s exercise to to the
“The was By this ordinary statute in the circumstances. care pilot liability [Pennsylvania] or of an owner the State passengers injury carried to or death for of an aircraft applicable according to to the law determined is to be Commonwealth the or waters on the lands torts May relationships: arising Act of out similar was §1472. 2 PS Swain P. L. Sec. 406, passenger plane guest admittedly and not a in the a pilot, token Accordingly, the same and hire. purpose employers (for de- this case his pilot’s employers), owed Swain were the fendants operator a degree an owner of care same gratuitous passenger, on land to a motor vehicle owes reasonably prudent man would care which is, Such or similar circumstances. in the same exercise Flying generally. See Bruce v. O’Neal rule Hall 560; 231 N.C. S.E. 2d 181, 185, Service, Inc., p. supra, Payne, 144; Schumacher v. Swartz, Jurisprudence, American 8; Aviation, & C. 3, D. 628) (page Rhyne, 57-58.” Law, Aviation Accident §60; majority Opinion repudiates long The and this well (a) though settled re- even it was reiterated as cently (b) though as October and even 11, 1963, applied resulting law was claims for death from negligence airplane, (c) the owner even and though proscribes majority’s supra, the Act Opin- new differential test. the Court’s Furthermore, ion creates new test formula which has no clear application many situa- varied definite factual tions which are certain to arise.
(3) majority Opinion (a) demonstrates impossible it is to formulate at this a new and time applied different test which can be with definiteness certainty many (b) varied it situations, *24 widespread among “disagreement concedes that there is the critics as to the successor to that lex rule”, i.e., likely developed loci and that delicti, it will have be gradually frequently changed, (c) and and that it is so and that it in- will also almost indefinite flexible evitably instability, uncertainty, create and confusion throughout Country, law our and will un- conflict of doubtedly greatly litigation increase the volume of already swamping thereby which is and fur- Courts, delay speedy Practically ther speaking, Justice. only thing plain- certain about the rule new is that bring tiffs their in or will suits under of the damages. which them to State allows collect the most examples given Many could be to illustrate and uncertainty demonstrate confusion, and conflict majority’s new and which undoubtedly flexible formula can and but
will one will create, suffice. are
Certain friends who members of a trade associa- plane plan flying the same in tion use to San Fran- They a convention. respectively to attend cisco live in Philadelphia York, New and Boston, Houston. The flight plane stops commence its is to at with Boston, Philadelphia Chicago. and New York, at Those who buy Philadelphia their York live New and Boston, plane towns. home in their own tickets and board the buys boards Miami but his ticket Houstonian cor- plane Chicago. a Delaware at The carrier is poration Nebraska. main office Omaha, with its develops engine and over Missouri Fatal trouble killed. plane friends are in Kansas. All four crashes majority’s ask well new formula one Under the damages or suits for should Court Courts what pas- four or estates of these the families instituted apply and sengers, would State’s substantive law what measure control the would the law of what State will damages? of fact or varied states Other similar plague undoubtedly vex the future to and arise in profession. legal and Without fixed Courts only could be confusion the result inflexible rule, plus liti- in conflict and inevitable increase chaos, gation. majority’s adoption
(4) new, I that the fear litigation-inviting overrules which indefinite and Bennekamp test, distinguishes supra, Blair, Pa., justification any legal Vant v. distinction without year), supra (decided within than a less 412 Pa., Gish, principle finally of stare knell the death sounds part supposedly still been, is, decisis Pennsylvania. Borsch 362 Pa. Estate, the law *25 A. 2d 119. Why, Whither? What, Stare Decisis— principle fundamental is a basic, decisis Stare stability clarity provides certainty, to and Law which public American officials, enables citizens, and the law powers, legislators Congress to know their alike, and their rights, and and to conduct liabilities limitations manage private private their and and business lives certainty. contrary to public with However, affairs — de- what some of its to think —stare eradicators seem cisis as fixed and immutable “The laws as recognized the Medes and and there are Persians”, five exceptions preserve jus- protect to this rule which and changing tice in all circumstances. England,
Ever since Lord Chief Justice Coke, (circa recently 1600) enunciated the famous and until maxim of cer- time-honored the law: “The knowne taintie the law is the Decisis safetie Stare all,” upon has been one of the bed-rocks House which the has Law been erected and famous maintained. This Anglo-American light maxim has been a beacon for law-abiding for text authorities for Ameri- Courts, Country. cans ever since the foundation our early As Brown v. U.S. Allen, (in concurring opinion Justice Jackson Mr. corpus) perti- aptly
abuse of the writ habeas nently (page 535) “Rightly wrongly, : said the be- widely by practicing profession lief is held that respects longer impersonal this Court no rules of law personal guided impressions but is in these matters may by majority from time time be shared of Justices. has Whatever been Court intended, this impression generated ju- also much of the precedents diciary regard and authorities is longer no mean they obsolete, words what have always profession, meant the law knows principles no fixed opin- concurring
Mr. Justice in his Frankfurter, ion in v. United States, Green 356 U.S. (page 192)
(1958), : said “To it is sure, never too late for this court [1] to correct a misconception in an even on a decision,[2] occasional rare occasion to change persisted long a rule of law that have but questioned long only been also have fluctuatingly ” applied . . . *26 opinion concurring I I said in my what repeat Pa. M. C. Hospital, Michael v. Hahnemann & dis in my and 439), 172 A. 2d (pages Corpora Chemical in Olin Mathieson opinion senting 95, 103, Pa. Inc., tion v. Cross Stores, White form Republican A. “In Constitutional 2d 266: a law upon which based as is Government such ours, Un essential. and are Stability Certainty and order, and certainty maintain and establish less Courts and safely cannot in the businessmen law, stability with their or with employees make contracts wisely contracts, meaning other; wills, bonds, each each and with change fluctuate and leases will deeds interests Court; property of a personnel in the change changed; or lost frequently and jeopardized will be law-abiding protect adequately cannot Government private criminals; against or communities persons rights obligations; their and know citizens will from to week will not know week officials public of Gov and limitations powers or to month the month been centuries recognized ernment. This peoples .... English-speaking al- if there we are progress,
“It is obvious, general prin- rule exceptions every will be ways principle nor and that neither ciple, should be immutable the laws can or as decisis stare the Persians. it ob- of the Medes Nevertheless, decisis principle to me, at least stare vious, or effec- ignored extirpated, actually not be should personnel of Court. changes because tually, exceptions has stated the two Mr. Justice Franfurter I justifiable. agree him seem with him, the same express thoughts differ- I little would while I further. would hold go I prin- would ently, should always Decisis irre- applied, Stare ciple personnel this changing (or other any spective in the two Court, concept situations set forth Supreme) *27 situa and in the by following Justice Frankfurter Pennsylvania of Supreme tions: Where the Court (1) ir the Court are prior convinced that of decisions or or prin rule reconcilable, (2) application of ciple has or (3) created undoubtedly great confusion; in those of Penn rare cases where the Court Supreme un sylvania is convinced for the the reason no longer of circum doubtedly [change and exists, stances modern combine circumstances Justice or] or present no require one’s justify change, in personal or rights vested interests will be property or jured by change. circumstances Change modern not nor has it ever circumstances does mean, heretofore been equivalent ‘change considered as the of personnel in the or the substitution of the Court,’ or social political of a for lan philosophy Judge of the guage Constitution a written instrument, or well settled principles law.”* present to the
Up time the well settled and directly applicable law of lex loci delicti has un- created no certainty confusion its or in language appli- its cation. are no there Furthermore, new circumstances, there is no change there ir- circumstances, are no reconcilable decisions of this Court, the law of lex loci delicti has been consistently fluctuatingly ap- —not — is no convincing there plied, reason or justifica- any tion for a change the law Pennsylvania, especially where formulated newly rule creates, as we have my pudiated cisions, into the same class about was foreseen wright, day concern is *The and train nine subject.” and overruled present years ago, U.S. by only. Justice J. Owen opinion trend to eliminate stare decisis from our law the instant as a I have no tends when he said announced restricted railroad justices bring- adjudications decision, overruling assurance, Roberts who deem today may (page 669) in view of current de in Smith v. All [1944] ticket, they : “The tribunal of this that announced have new shortly good reason for this light re likely uncertainty, confusion seen, such obvious conflict of between the States. laws any not fall within This case does Griffith exceptions principle recognized aforesaid stare decisis. I reasons dissent.
For each these Appellant, v. Clawson. Elliott, *28 Mus- Argued C. J., Before 1964. October Bell, Roberts, O’Brien Cohen, Eagen, Jones, manno, JJ.