Marilyn W. Pearson, as Administratrix of the Goods, Chattels and Credits of John S. Pearson, Deceased v. Northeast Airlines, Inc.

Co., F.2d Y., H. R. N. H. & N. PEARSON, Marilyn as Administratrix W. today reads public 1960), (C.A.2, Goods, and Credits of the Chattels gov- spectacular rather share Plaintiff-Ap Pearson, Deceased, John S. large “won on sums ernment takes pellee, quiz programs or in lotteries television public informed sweepstakes.” AIRLINES, INC., in income taken NORTHEAST of the amount that is Defendant-Appellant. large paid to busi- from salaries taxes executives, entertain- ness stars No. Docket 27350. large earners, and world and other ment Appeals United States Court of taken taxes that are the amounts Second Circuit. any we Have from estates. decedent’s Argued April before the Panel awarding 1962. juries, today’s assurance that range one before verdicts July Panel Decision 1962. that, us, $136,267.23, unlike are aware Rehearing en Banc Ordered they money, receipt of almost other Sept. 1962. guess a tax I free? would venture are Rehearing en Banc Decided lawyers number of substantial Nov. 1962. (excluding engaged personal those injury business) would unsure receiving $100,- consequences tax personal injury 000.00 verdict. Should jurors expect informed?

we better to be considering sub- cases Some of the merely would not be er-

ject that it hold give simple on the instruction ror argues here, plaintiff hold

point but, as matter should be left See, McWeeney judge’s discretion. trial supra, p. Y., N. H. & H. R. N. easily dispose so not think can I do we grant, above, subject. I stated might jurors’ im- deliberations that peded required, in com- if were calculating earnings past puting loss guess past earnings, of future regulations. Simple tax future advice, rates present however, that award their not be income tax reduced does will If, as seems vice. to be such have prejudice conceded, will be visited no advice, why plaintiff with- such my opinion, serious harm can ? In hold jurors’ defendant lack to a result They field. in this of information should Except for truth. loss know advantage, plaintiffs will suf- unfair knowing jury from a truth. I fer error to

consider reversible refuse subject. simple on the instruction judgment would reverse or-

I a new trial.

der McGohey. Judge

was tried before judge recovery plaintiff’s ruled that $15,- arbitrary not bound limit provided by Chapter section of Laws.1 Massachusetts General doing holding so of the he relied on the Havens, New Haight, Gardner, Poor & Kilberg Appeals, New York in Court of and City (William Junkerman J. York Airlines, Inc., v. Northeast 9 N.Y.2d City, Bowring, Douglas York New B. (1961). 133, 172 211 N.Y.S.2d N.E.2d defendant-appellant. counsel) of for damages jury The thereafter awarded Speiser, Sterritte, Shu- and Frank G. statutory well in excess of the maximum City Geoghan Law, mate, York & New judgment accordingly.2 and was entered De- Speiser M. (Stuart Florindo and M. From judgment, this adverse the defend counsel) City, for Rosa, of New York appealed Court, ant airline to this claim plaintiff-appellee. ing, alia, recovery inter that the should Judge, LUMBARD, Chief limited, Before law, have been as a matter of MOORE, WATERMAN, CLARK, and in accordance with the Massachusetts KAUFMAN, FRIENDLY, SMITH, appeal by statute. The a was first heard Judges. MARSHALL, panel Circuit HAYS and consisting of this Court of Chief Judge Judge Lumbard, Swan and this Judge, KAUFMAN, with whom Circuit majority held, panel A writer. of that SMITH, WATERMAN, CLARK, HAYS my dissent, over Full and Faith Judges, MARSHALL, concur. and Circuit Credit Clause of the United States Con question principal, considered The courts, stitution barred New York and a federal is whether en banc this Court hearing brought a federal court an action sitting of New in the state court diversity juris in New York of virtue constitutionally “apply” Massachu- a awarding diction, from unlimited recov giving a cause of action setts ery in a lawsuit “based” Massa refuse, rea- and for death for being chusetts statute.4 The issue one policy, provision to follow of state sons great significance of —the would limit which that statute of develop of the states to conflict of recovery $15,000. ques- The plaintiff’s upon ap ordered, laws doctrine—it was for in an action arises tion plication plaintiff-appellee and plane crash in occasioned brought majority of a The the affirmative vote action was Massachusetts. for judges District Court circuit, ap United States in of this active that the York, District and the Southern peal be reheard en banc Airlines, Inc., Northeast 1. Pearson $20,000. Mass.Gen.Laws Ann.Ch. § (S.D.N.Y.1961). F.Supp. 539 (Supp.1961). of the Massachusetts Gen- This section 2. jury brought in a verdict sum “Damages reads: for death Statutes eral $134,043.77. judgment court’s negligence of common If carrier. later amended to was include an addi- pas- proprietor common carrier of a $26,160.88 of interest. tional * * * sengers causes the death of passenger, or it shall IV., he be liable in “Full Article Section 1. Faith and damages given sum of not less than two in the shall be each Credit State to the Acts, Records, more than fifteen thousand nor thousand dollars, and Public Judicial Pro- every to be assessed reference to ceedings of other State. And the culpability degree may by general of the defendant Congress prescribe Laws agents, or its servants and his Acts, or of Manner Records provided distributed as Proceedings and proved, recovered shall and the persons one, and to the use of the section Effect thereof.” proportions, specified.” therein in the Airlines, Inc., v. Northeast 4. Pearson has since been The statute amended 1962). (2d Cir., F.2d 131 upper recovery limit raise 46(c) 5. See U.S.C. consequence re of this revenue from As a New York citizens. The hearing decedent, and extensive reconsideration New York citizen and domi- authorities, ciliary, purchased flight six pertinent the issues his ticket at the n active judges reached New have of this Court offices of Northeast Airlines. contrary ma plane of the He to that boarded the a conclusion jority Northeast La adopt original panel, Airport, City Guardia of New York, opinion of Island, from the bound dissent this writer’s Nantucket Mas- sachusetts, evening August F.2d 136 panel, appearing at 307 and on the ruling plane that the decedent’s We hold crashed in vicinity Appeals Nantucket. New York Court pow proper state’s exercise having action, Another no connection doctrine; develop of laws er to conflict family, already with the Pearson had apply the limi to and the refusal court’s been maintained in the courts of the recovery provision Massa tation of by State of New York the administrator exercise statute a constitutional chusetts Kilberg, of passenger Edward J. also a judgment power. of of such flight on the same ill-fated to Nantucket.7 affirmed, as therefore District Court is highest court New York ruled in panel’s in accordance with modified action, by that case that of virtue holding pre on the issue of unanimous New rules, prop- choice of law was requires judgment This issue interest. erly by founded created no further discussion.6 Wrongful the Massachusetts Death Act. stated, however, additional considerations It Several that.New York courts discuss, should, con- we us that the appropriate, shall convince if damages award compelled. reached is statutory clusion we have excess of $15,000 maxi- recovery required by mum the Massa- dispute. facts are not in The essential chusetts statute. Fundamental New Marilyn Pearson, and adminis- widow W. policy, given expression by a state Pearson, of John the estate S. tratrix of provision prohibiting the domiciliary New of citizen and a legislature New York enacting any from present York, action commenced limitation, prevent was held to Airlines, New against recov- Northeast Inc. applying York courts husband, damages of her for the death limitation er by negli- means of court-made allegedly law. The defendant’s caused court emphasized that the limitation gence. Airlines is a Massa- deem- Northeast ed the 1894 drafters of the state con- corporation authorized to do chusetts stitution to be unjust, “absurd and Pursuant to that in New York. business measuring pecuniary authorization, value of all it maintains ticket offices lives, kin, by next actively pro- throughout the same arbitrary transportation effect, standard.”8 use of its fa- In motes Appeals York citizens means New State of cilities New advertising. Kilberg, operates York, widespread It fashioned a rule of law flights allowing recovery damages from New York full schedule without arbitrary limit, airports substantial and earns amount modeledon the New York 768; 1652; F.2d at 136. Geo.L.J. 74 307 Harv.L.Rev. 6. See 36 723; N.Y.U.L.Rev. 37 Notre Dame Inc., Airlines, Northeast Lawyer 194; Rutgers 620; 15 L.Rev. supra. 357; Syracuse 35 St. John’s L.Rev. 12 period has, in the short case This 395; 733; L.Rev. 28 U.Chi.L.Rev. 39 resolution, garnered an in since time 511; 271; U.Cin.L.Rev. 15 Vand.L.Rev. ordinately large space legal amount of 47 Va.L.Rev. 692. Albany 313; periodicals. See 25 L.Rev. 187; Medinger Brooklyn 257; Heights 8. See Ark.L.Rev. B.U.L.Rev. R. R. Brooklyn 336; Co., App.Div. 42, 46, L.Rev. Calif.L.Rev. 39 N.Y.S. 1497; 187; 46 Cornell 61 Colum.L.Rev. 637; 170; 30 Fordham L.Rev. L.Q. wrongful although Wrongful Statute,9 death statute to this accident Death although territory as the it occurred outside the served statute still Massachusetts adopting approach plaintiff’s New York. this for cause foundation Judge McGohey, would concedethat the facts of this death. e., (a) purchase case—i. Mr. Pearson’s Klaxon Co.v. constrained the edict of airplane Mfg. his ticket at a New York office Electric Stentor doing large corporation of a S.Ct. part York; (b) Tompkins, of its business in New Erie R. R. Co. v. attempt York, (1938), his to travel from New 82 L.Ed. regularly domiciled, applied principles where he was on a properly flight scheduled York berg Kil- most which was con- conflict of laws enunciated in York; recognize (c) ducted over New and declined to the Mas- wife, upon liability. New York domicile of his adminis- sachusetts limitation Wrong- beneficiary tratrix and under the already This writer has criticized the closely ful Death Act—are so related argument apparently adopted by pan- State New York have that it would opinion, el that New York was constitu- the constitutional its own tionally applying disabled from its own litigation. substantive rules of law to a cause of However, proponents of this consti- arising plane out a crash in analysis contrary tutional would deem it dissent, Massachusetts. See 307 F.2d at to the mandate of the Full Faith and Although Judge 136. Swan did not ex- Credit Clause if New were to enter- pressly approve proposition of con- wrongful a tain claim for death “under” law, stitutional the inference seemed in- Massachusetts act but escapable that, effect, panel ma- principles governing York permitted recovery. the exent of jority had exalted the lex loci delictus summary, In to constitutional status with the conse- urge recog- that once a New York court quence that New York was barred from wrongful nizes a claim for death based applying any part the whole or law, on Massachusetts that con- law must policy own death to the events every They trol incident of the claim. occurring in Nantucket.10 If in- this is argue required that New York is not to deed panel’s opinion, the rationale of the give any faith or credit to the Massa- then it is the first decision to “freeze” act, gives chusetts but once it Massachu- into constitutional mandate a choice-of- setts law some and credit faith it must rule derived from what be de- give also it faith and credit. full Age scribed as the Ice of conflict of laws jurisprudence ju- a time when that —at construction of the con- find this We risprudence stage is in an advanced Despite untenable. mandate stitutional majority rejects thaw.11 A of this Court arguments put forth in resourceful this rationale for the same reasons which persuaded behalf, arewe that its statutory prompted reject this writer to init his upon limitation the amount of dissenting opinion. money be recovered should mer- that suggested, however, greater statutory that obeisance than It is a differ- length analysis supports ent constitutional addressed to limitations during panel. propo- The the action reached result time brought, analysis willing parties are or to the who em- nents of this to as- are bring suit, or to powered New York’s “contacts” to that the sur- that sume support are to of the cause of action the transaction sufficient or abatement vival injured party. application an of New York’s entire Buckley, See, g., Hausman v. 299 F. 9. See note of this writer’s dissent e. 11. 1962); Zogg (2d Cir., opinion. panel v. Penn Mu F.2d at 2d 696 Cir., Co., (2d Ins. 276 F.2d tual Life 10. See 307 F.2d 139-140. 1960). qualifies applying the Clause in of limita- the statute its statute each instance obligations rights statu- tions so as to bar still to which a cause of action gives viable in tory the locus cause of action birth. delicti. Wells See Co., Simonds Abrasive precedent, no to are directed We (1953). The logic any compelling unaware and are Wells case even tells us that this is true requires precedent, which independent of though refusing ap- the forum to state is statutory quali a state to enforce ply a into” statute of limitations “built recog it chooses fications whenever statutory cause of action for action.12 foreign-based cause nize a “integral” death as an or “substantive” numerous example, cases are For provision. applies own stat forum state which a despite Despite fact in Wells effort of limitations ute duration period pierce different is limitations core the constitutional incorporated statute expressly occupied by in the la mere sue rather is than be creating jurisdiction bels, is not con are the case we told g., See, us, Bournias v. trolling litigation e. be cause of action. before (2d 220 F.2d involve Atlantic Maritime cause limitations statutes usually accomplished 1955). judi merely Cir., “procedure”, is This matters of referring limitations house-keeping. told cial are further We involving “procedure” proposition is mere of this buttress legal verbiage say niceties of such “substance”. difference sheer us; legerdemain it is the $15,000 do not concern between limited to loudly. speaks $160,000 mere result one that run specifically a state verbiage held that “procedure”. equal Court has But any Full Faith Credit ly explain the does violate thin that would constitu- urged say on behalf of preme not, case, of cases 12. Most tlie in Court did maximum-liability principle that completely that South Dakota could have inseparable part provision is an ignored applied Ohio law and own and must be enforced and therefore having applied that once Ohio law on con vested-rights forum are relics of the the theory, rights apply tract it also had to Ohio sufficiently discussed regarding law the statute of limitations. g., See, 140-42. e. writer in 307 F.2d at What the Court did do was there ac Mills, 451, 24 194 U.S. S.Ct. tually Davis v. compare inter balance the ; (1904) 692, L.Ed. 1067 Slater v. 48 ests and contacts of South Dakota and Co., R. 194 Ohio; National R. U.S. Mexican it held that the interests of the 120, 581, (1904); 24 S.Ct. 48 L.Ed. 900 significant as former were not of those Babcock, R. R. Co. 154 Northern Pac. v. that, the latter and under the Full Faith 978, 190, 14 S.Ct. Clause, U.S. and Credit Ohio law had to be (1894). It should further be noted that fully applied. extent, To that we con analyzed in Court these cases superseded by sider Wolfe to have been proper independent problem of a in terms States, 1, Richards v. United courts, the federal be 15, 585, choice-of-law 594, at 82 : S.Ct. 7 492 L.Ed.2d Tompkins; of Erie the advent fore “Where more than one state has suf hardly ques ficiently determine the therefore substantial contact with the ac tivity tion whether a state has constitutional question, the forum analyze ques power analysis conflict of laws possessed by of the interests separate involved, terms of constitutionally tions in issues. the states could apply to the of urged decision forcefully case the of the cases most One having of one or another law state support analysis activity.” an interest the multistate discussion is under Order of United Com- Wolfe, rate, mercial Travelers 331 1687 America v. At Wolfe dealt with an ad- 586, 1355, mittedly unique situation, relationship U.S. L.Ed. 91 It was there held that a between members of a fraternal benefit enforcing rights society. language Dakota court South created own Court’s leads by the constitution of a fraternal us to believe that Wolfe would not con- be incorporated trolling benefit association under in this case. See 331 U.S. at regarding had to 641-642, law Ohio 605-606, Ohio and at 67 S.Ct. 1374 (dissenting opinion). the statute of limitations. But the Su- ciently governed limita- of local concern to be time tional distinction between be- one the law the In Haumschild forum. tions and dollar limitations 130, Casualty It “procedure” Continental 7 Wis.2d tween “substance”. (1959), case second purposes N.W.2d true that one of the approval by Supreme cited a court with statute relieve of limitations is to Court, system dealing claims the law of “stale” forum and with long parties’ interspousal im- dispute where domicile occurred as to the facts enough munity ago applied for- committed is either to a tort evidence gotten Surely the wide outside the can- But state. these cases or manufactured. variety statutory be be periods cannot dismissed an invocation with explained solely substance-procedure dichotomy. evi- of stale on the basis ele- dence. There is no another doubt therefore, cannot, Our decision character, ment, of a more “substantive” ap interpreted a forum’s be plying to condone might which concern as a described manner in wanton its own rules potential for the interests of defend- by labeling “procedural” while matters ant.13 arbitrarily choosing for parts up- however, cases rest, We do not eign by label to enforce statute wishes holding the constitutional hold, ing them We do “substantive”.14 disregard limi- forum to however, that a with substantial delicti. tations of the locus dispute a le ties has to a transaction year, past cited has, within the gitimate ap constitutional interest emanating from approval two cases If, plication of law. of its own rules highest our states courts of two wholly indeed, lack those connections are gov- applied law to rule local ing tenuous, then it or at best of action based ern an of cause incident proper the state to conclude that state. See law of ap power in its constitutional exceeded 1, 12 States, 369 U.S. United Richards v. plying See, g., e. local Home law. n. 7 L.Ed.2d S.Ct. McAuliffe, Dick, Cal.2d Grant v. Insurance Co. v. Currie, (1930); 264 P.2d A.L.R.2d Judge speaking Traynor, for the Califor- “The Constitution and Choice although Court, Supreme held that Interests and the nia Law: Governmental injuries personal Function,” 9, the of action for cause Judicial 26 U.Chi.L.Rev. law, (1958). hypothesi, is, matter Arizona the But ex based that of its or abatement was suffl- before survival the case us. only that statutes

13. There can be no doubt “stale evidence” is not the rea- That embody for of a concern son statutes of limitations is limitations for corrob- very speedy disposition of within a rea- claims fact same orated origin, complex may give period after for the of facts rise to sonable their both a quasi-con- pro- protection of the defendant action in contract or cause of litigation. tort; of This seems a of action in tracted fear tract and cause it very period universally true that the to be the reason that is almost statute wrongful death of limitations cases is of limitations each of ac- cause ordinary length. usually than of tion differ in See shorter will Restate- negligent ment, 899, The fact that Torts b. § of torts. Comment action wrongful limitations death of statutes language usually clas 14. Much denominated “sub- are actions maximum-liability provision sifying Restatement, stantive”, Conflict of as might appeared clearly procedural 397, poli- have some Laws reveals § subterfuge. embody merely just such a are those be But of cies disregarded by Compare judicial housekeeping. language has since been N.X. Appeals McKinney’s Dee.Est.Law, of Court ConsohLaws c. Kilberg interpreted 13, (two-year period an as affirmation of a of limitations § 130 policy. public action) strong See Daven state with N.Y.Civ. for Webb, 392, (three-year period port 11 N.Y.2d 230 N.Y.S. for Prac. Act (1962). injury property person). negligent 17, N.E.2d 902 or 2d argument advanced, prin- primer once New tution as a fundamental ciples gives developing credit to for faith and of a some conduct give system federal must rather than manual Massachusetts statute is, Supreme inci- each technical rules. credit—that Court was faith and full recently en- pro- mindful must of this dent of the when it cause by the statute nounced precisely as forced defined Indeed, creating it has not new. it—is consequence “As a modern by one of our as unsound been attacked leading practice conducting widespread of conflict scholars the field throughout business activities described Currie has Professor laws. States, entire United this Court has argument for someone it as natural in a series of eases held that more assumption “schooled states than one seize hold only gov- must one state law one and part local activities which are * any ern transaction the whole multistate regulate transactions and the Choice “The Constitution protect interests of its Law: Interests Governmental people, though phas- own even other Function”, Judicial U.Chi.L.Rev. might es of the same transactions underlying assumption is That regulatory legislation justify in oth- expressed by inconsistent with the views Employers er states.” Watson Li- ago long as as ability Corp., Assurance when Alaska Packers Ass’n v. Industrial Commission, 532, 55 Accident was decided. recognizing We construe this as that a recog- expressly In that case the Court single “transaction” within contain rights nized that under the asserted legitimate- itself several distinct “issues” necessarily statute of one state ly subject made of more than qualified denied or of another. the law one state. necessity the ex- “The decide [to True, New York reiterated its tent ‘to statute of one partial adherence to the rule of lex loci deny rights may qualify or require delictus. But does this that New under the of anoth- asserted statute deprived any power York be is not the less whether the er’] public policy a fundamental rule of to one policy statute and up of the forum is set incident of the cause of action? New brought to a as defense suit nothing ap York has done more than to foreign under statute ply a traditional choice-of-law rule which up is set de- designates the law of Massachusetts proceedings fense to a suit or under the source of case, the local statute. either death. It absorbed the Massachu rights each, same. conflict is the In corpus setts into the rule of New York prevail claimed under one statute on- purposes adjudicating law for of this ly by denying effect to the other. fairly. Siegmann Meyer, case See 100 resolved, the conflict is to both be Cir., (2d 1938); F.2d 367 Guinness v. giving by automatic effect to the Miller, (S.D.N.Y.1923) (L. 291 F. 769 clause, compel- and credit full faith Hand, J.), aff’d, (2d Cir., 538 F. ling the courts of each state to 1924), Guinness, aff’d sub nom. Hicks v. its own subordinate statutes those U.S. S.Ct. other, appraising but of the governmental the (1925); Cavers, “The Two ‘Local Law’ ju- interests of each Theories,” (1950); Harv.L.Rev. turning risdiction, and the scale of Logical Cook, Legal “The Bases of according weight.” to their decision Laws,” of Conflict 33 Yale L.J. 457 547, 55 294 U.S. at S.Ct. at (1924). doing We believe that in so New The decision we reach seems York is not bound to model all of keeping governing in with view the litigation be of rules Consti- in which interest, whelmingly legitimate interstate flavor.15 has a it is concededit adoption principle of convinced such a would effect We are on Massachusetts law. upon an may each issue incursion Massachusetts examine New York public policy litigation far more cre- New York conduct which in the —the bring may up- purported parties serious than liability, incursion who ates peri- policy liability, action, Massachusetts which we have an extent of upheld today. during liability may If sued Massachusetts local od upon, which the must, by compulsion, cases, rules appropriate constitutional matters govern every aspect immunity, so procedure, of a transaction insurance etc.— intimately affecting weighing of New interests the contacts of various York, concept transaction, then full faith and states with the may, being interfering credit is an extraordi- utilized as without with the Consti- nary legi- example controlling oppressiveness tution,' shape its rules the liti- gation. timate and lawful interests. dissenting argued assault It is Kilberg principle limited Clause, today has not been reach opinion we the decision the Full Faith and Credit invasion an unwarranted will result are likewise told however. We freedom Massachusetts’ York of New action, the Due Process Clause violates no state can henceforth and that In order that Amendment.16 Fourteenth incurring legislate risk that without there must the latter clause violated having some the courts a sister deprivation life, liberty be some property. transaction, will use contact with argued our decision It is intended reach a never law to result property. deprives But the defendant arguments legislators. find these We being Airlines is assert that Northeast to deprived unconvincing they rest on a because “property” is to assume premise very dubious constitution with very issue, e., point in i. that North underpinning. al concede that We given right property some vested east by Wrongful Death of Massa Statute application the Massachusetts designed certainly chusetts, almost liability for death. This rule of regulation eye an occur toward the already panel has stated his writer transpiring wholly rences within Massa that no such vested exists. dissent fully chusetts, should be honored 140-142. 307 F.2d See completely when the liti incident under argu- Such, it, “deprivation property” gation we local one. take This is-a explain purported import Insurance dis- of Home Co. v. ment also urged upon us, Dick, is drawn tinction we cannot concede the case before us and some of But between cases, constitutionally pro earlier Massachusetts unqualified applica Abrasive v. Simonds U.S. claim to the Wells tected L.Ed. 1211 of its statute cases with an tion over- 15. In modern multistate chusetts courts public policy argument ing laws of other States at just p. 527: “Modern conditions which scribed guarding Massachusetts citizen of this State to the and anomalous to in the N.Y.S.2d n. 8. The interstate flavor of air transactions. [sic] converse transportation ease, Kilberg move. have situation, subject through long ^[*] as means of 172 N.E.2d at See 307 F.2d interests ^[*] is well de- at 9 N.Y.2d make utilized the the travel- ^[*] and over varying Massa- An it un- air 16. begin The traveler of a few several plane without due an he never the er or tuitous.” any person “* * plane airplane’s place in one State other from New York intended to cross but into which * has flownbecause * hours’ duration meet with disaster in a State process unexpected developments, or * * nor shall injury catastrophic life, liberty, commonwealths. becomes and end in another. any law of bad pass through State descent or * * entirely in a property, deprive weath- flight for- His replace “substantive” expressed to subordinate was This distinction “integral” parts of statute in or a opinion case majority panel this in as to defendant from so relieve a this fashion: foreign statute. under enforceable the de- plaintiff was “In Wells the deprived the But is the forum to be remedy; sue he could prived of all power a stat- constitutional to deal with could defendant where in state exactly the in manner when ute the same longer has a be found and only re- a favorable will be difference Pennsyl- than of limitations statute plaintiff defend- sult to the instead the a dif- or.follows forum] vania [the Supreme in The fact ant? Court case In our ferent conflicts rule. ignore that a choose to held state the as to had no choice defendant qualify under or to that arise defenses protection deprived of the forum. If laws of Watson v. the Employers another state. imposed the of the limitation Liability Corp., Assurance Kilberg recognizes, which, created as liability, un- he be treated the will Louisi- held that the concern of justly.” F.2d at 135. protection residents ana of its argued merely short, it is that Wells empower in its was sufficient to it to hear plaintiff off to the courts one closed against courts a direct nonresi- action a Kilberg upon the whereas fastened company, despite a no- dent insurance liability. an This defendant irrevocable action clause in a Massachusetts contract allegedly controlling theory, a dis- which draws obligations of temporary inconveni- tinction between the insurer. plaintiff ence to the and irremediable escape prejudice defendant, see no therefore falters in at We today, that respect. proposition we announce least one serious It assumes may, legitimately under plaintiff step state interested will be free to across case, apply a this lines, defendant, circumstances state the firmly serve and start long existing policy again. assumption fixed his all over suit This although own, immediately would remove prone attack. dis- “integral” pro- provided an plaintiff’s missal of defense anbe creating the adjudication statute locus’ effective vision of the where there is no Court, in Bournias This of action. other forum in cause which suit brought.17 Co., supra, in an Maritime Atlantic Judge Harlan, opinion then Circuit Furthermore, once conceded that sitting given in property a District Court held no vested defendant one-year merely refuse York could his interstate ac- because of limitations incor- statute in tortious conduct in Panamanian result tivities creating very porated statute happens to be favorable whose law upon which the suit was of action him, distinction cause then the between part brought. There, here, of a for- as and the result result Wells rejected weight. eign was so to elimi- of its own We must em- falls to the suit to enhance phasize we are not here nate concerned defense Bournias, length liability; wisdom of New York’s choice- with only power time, it is dollar of-law, in this case limit. but to choose of adversely'affected Kilberg. defendant.18 Both did forecast in upheld a result was Jus- Just in Wells forum developed contention, shortly, Further, public-policy on a dismissal our application an fact grounds the thin line treads between a policy party public one favors forum’s judgment judgment on the merits and a constitutionally the other is than rather prejudice; ju- should a second without irrelevant. judgment view it as risdiction merits, might “irremediably attempt plaintiff made distin- be to will An be 18. ' finding support guish prejudiced” on the Court’s there. This lends Bournias to application Insurance rational in Home of its own law a tice Brandeis’ dictum to particular litigation?19 Dick, 50 S.Ct. issue in the Co. v. 338, 342, (1930): is principle “It Could there be 74 L.Ed. of conflict arbitrary time of laws more extend than the one ad- true that State brought defendant, in its vanced on behalf be of the suit within which * * * * * apply the New York need And courts Massachusetts own *. applied law at all be but that of limitation once New York models local statute right jurisdiction its rule of in another on the Massachusetts to created remedy law it abdicates all in the latter to where the make wise even govern unquestioned choice of at It should be to the other barred.” inci- litigation? forum dents of the Just this late date that the law as we stat- very dealing ed when under certain circumstances with the Full Faith and expand rights Clause, seriously Credit qualify or Due Process Clause if obligations legi- so construed would created the statute of be destructive foreign timate and lawful this works to the state interests state. Whether and lose meaning. clearly party precedent There benefit of one or the other is is no supports proposi- such a the issue of full faith and irrelevant to credit; tion and stamp we are can find no reason disinclined we to our approval any greater relevancy holding on such that it has dubious doctrine. process. of due issue laws, The field of conflict the most underdeveloped jurisprudence in our standpoint, A violation of the Due Proc just practical now ess Clause the Fourteenth Amendment breaking loose from the ritualistic think- only depriva requires not that there be a century. ing opinions last Recent of the property we have found tion —and great Supreme and the wave also none here—but some unreasonable or writing academic reinforce this trend liability. imposition unreasoned flexible and articulate toward selection laws, area of conflict of the Due governing of the laws multistate transac- arbitrary prevents ap an Process Clause development tions.20 The will be still- jurisprudence plication of a state’s impose if inflexible constitution- born we disputed an event. It is not out-of-state name of al strictures national un- arbitrary that New would not be ity, which could restrictions not be re- selected its own law to if it legislation.21 paired state or federal controversy. How, then, this whole of arbitrary become the selection can Finally, hold, we for the reasons constitutionally prohibited original when dissenting stated in writer’s intelligent Judge opinion, McGohey right an more makes even was statutory “specifical- period Century Comparative was Twentieth and Con- ly” unmistakably Law, 349, as to in so refer built flicts 357-58 question. the cause But States, Richards v. 20. See United Supreme Wells, Court said: “Dif- 12-13, 82 S.Ct. 7 L.Ed.2d 492 upon foreign based whether ferences known to the common law or Freund, arrangement “Chief 21. See Justice Stone & of the code of Laws,” Conflict 59 Harv.L.Rev. are too unsubstantial (1946): “If the 1235-36 task of the basis for constitutional Conflict form distinc- understand, harmonize, is to of Laws the Full under Faith and tions Credit competing weigh interests' in multistate 345 U.S. at Clause!” events, and if the desideratum of uni- formity approached will most satisfac- torily by evolving a lucid discussion of the 19. For need for rules that deliberate- problems deciding ly objectives, conflict of laws on the these then seek we seem particular hardly ready dispute, precepts issues for a set of basis im- Cavers, “Re-Restating posed process the Conflict Court de- Chapter Contracts,” Laws: cision as fixed canons of constitutional law.” ghosts instructing jury supporting measure that the rather to be itself with damages upon conjuring. of degree not should based its own culpability but of the defendant’s ground It is common New York pecuniary sus loss the extent of just any courses followed of the Moreover, dependents22 tained judges All of the outlined. seven original unanimously by as decided Kilberg Appeals repudiated Court of there, panel, and for stated the reasons majority ex an action contractu. The running judgment on the interest recov likewise disclaimed ery might idea that by Massachusetts be determined should tort, had, under New law. wrongful Judge York’s Chief death act. affirmed, judgment said, 40, 34, as below is Desmond N.Y. N.Y.2d 526, 133, award 135-136, modification 172 N.E.2d S.2d reduced (1961), clarity: for with entire “We will interest. require plaintiff still on the Mas- sue pub- Judge, sachusetts statute refuse FRIENDLY, but we Circuit grounds policy Judge, one LUMBARD, lic to enforce of its whom Chief * * * provisions damages” as MOORE, (dissent- Judge, join Circuit —“We part ing). refuse to of the Massa- Moreover, in a chusetts subse- law”. nothing Constitu in the Federal I find involving wrong- quent case a claim for legislature prevent the would tion that state, ful death a sister the Court wrong amending its from York of New Appeals had what it said in underlined Law, act, Estate Decedent § ful death Kilberg. stating After “We in- there ,et seq., death in sister include the dicated that the courts this State were travelling York resident a New .state damages free to award in excess of the flight ticket from York on a New on a amount limited death stat- York, purchased or the courts in New brought ute under which the action was wrong reading from now New * * * ”, applied it a rule of the sister such a case. act cover ful death disallowing pre-judgment interest any one of “contacts” these 'Whether contrary despite the direction of § York in thus warrant New would alone of the New York Decedent Estate Law. wrongful death act and .applying its own Davenport Webb, 392, 11 N.Y.2d refusing any “faith and credit” to 17, 19, N.Y.S.2d 183 N.E.2d (cid:127)“public certain acts” sister (1962) New York . under the ly far con does. So the combination gives doctrine thus some faith credit here, issue Alaska Packers .cerns the foreign death act. Commission, Industrial Accident Ass’n Kilberg it enforced the Massachusetts 55 S.Ct. U.S. statute, Mass., Ann.Laws c. (1935), States, and Richards v. United 1958) (as in effect insofar as de- 7 L.Ed.2d proprietor “If crees com- indicate no more that but * * * agree passengers I would also mon carrier than that. that New constitutionally negligence free York is to overrule or of his wilful, reason or per that forbid or act, (cid:127)decisions restrict the or reckless or wanton reason of representatives party gross negligence sonal to a con or unfitness the lessness, or care- carriage made in wilful, New York tract or the wanton or reckless contract, .suing, on the act, agents, of his its servants or wherever occur. passenger, death Our broth causes he or * * imposition damages ers’ fears of in liable in shall be *.” disregards flexible constitutional strictures on But the words im- (cid:127)development following: mediately of choice of law rules are “in the sum of needless; quite majority seems than two thousand nor less thus more than 22. See 307 F.2d 146-147. govern dollars, often to be assessed same thousand make the rules that

fifteen degree culpabili- transactions within New York to with ty to the reference state, or events in a defendant or of his its serv- sister it does not follow agents, and ants and recovered dis- when New looks statute or to provided one, sister a claim tributed as in section state the source of pro- persons courts, enforceable its Constitu- to the use of the Although Supreme portions, specified.” decline, tion allows therein give Kilberg words, provide Court’s “to did not detail as to full faith just provisions supply credit to all New York what would those substantial place language only of the of the excised statute which in the cause save inhered of action or name there would be no limitation on the which conditions recovery, depend[s].” which amount to sue Ten- our brothers fill the gap; they Coal, George, nessee Iron & R. decide that in New York the Co. R. 587, 588, recovery 354, 360, amount U.S. Massachu- under the (1914); setts is Act to be of United measured the loss Order dependents Commercial sustained gard Travelers of America v. without re- Wolfe, degree culpa- of defendant’s U.S. bility. (1947). Appellant L.Ed. 1687 contends that the Full IY, Clause, Faith and Credit Art. why important reason a forum An and the Due Process Clause the 14th thereby do this that it Amendment forbid this. proper of ac- freedom interferes with superficially A attractive answer is legislature state. of the sister tion validly if York could arrive at that New claim cre- conditions of a The terms and theory i'esult on of contract leg- inevitably reflect ated through balancing or construction of amendment or of those considera- islature’s act, own the Constitu- oppose and of tions that those favor legisla- tion not demand liability. does a different conclu- imposition of sion goal through excising unwilling because New York attains the same quite create ture altering provi- allowing enforced it to be claim on terms say sion of “superficially I the Massachusetts Act. as most com- of amount without limit period since the rights be, attractive” two can or for a mon law processes only conceptually— differ not only by statutes of limitations bounded altogether unimportant ordinarily applicable. The Full Faith legal system designed in a that, maintain a in mak- insures and Credit Clause among degree fifty legislature creating ing certain order states choice, the n —but Although practically weigh as well. claim need not have to risk primary looking interest of the framers of the of sister states that the courts intergovern- rights Constitution in “public the area of acts” as a to its source disregard mental relations was doubtless to set substantial conditions will boundaries between new imposed Federal calculation which it has —a states, they Government and the were so numerous and would involve variables preventing also concerned unpredictable preclude encroach- intelli- ments Ogden one state gent another. inap- See This choice. consideration Saunders, forum, Wheat. plicable to instances where the 6 L.Ed. looking solely law, Madison character- its own substantive disregards ized the Full wholly Faith and Credit Clause as that of the sister among provide those permissible “which for the as the Court held harmony proper among Packers; nothing intercourse in Alaska there turns the States.” The Federalist No. not the 42. on whether or lawmakers Granted that whenever a New York sister acted or court state have how have judgment, enforcing enacting enters a True, it is acted. conduct in the “law”, given consequences and that New York diifer- state has been “The stand legislators A.L.R. 1159 from what ent ard of inevitable under Massachusetts desired; the the but is state that law-making juris- punitive e., Death refer Act is ‘with duplicate

result of the —i. degree’ wholly culpability avoided ence to the of be that can never diction —not Bonding compensatory.” system Massachusetts in our federal even —not enacting 128, legislators States, & Ins. Co. v. by United taken 132, forum 77 S.Ct. 189 1 L.Ed.2d which in the absence of state (1956). sure, Recovery in- limited, The impose all. is to be at would not statutory may creasing scope also, liabilities but there is a minimum which proof pecuniary be lawmak- recovered particularly that without makes it vital loss, Beatty Fox, 216, that'once v. 328 102 of one know ers state should Mass. (1952), transitory right N.E.2d and, 781 created a has been if the defendant sufficiently may culpable, be them, enforce- it the uniform the award will receive damages sustained, as, Full outrun the ment from other which for states example, contemplated, aged in person the death of an Faith and Credit Clause or an 612, infant. 609, Hughes Whether means Fetter, see v. provi that New York will enforce those (1951), 980, com- sions of providing the Massachusetts Act pare 10, not Id. should fn. and that larger recovery a than would obliged speculate states to that other be ordinarily allow or that New York will may reject what take is liked and what wholly a substitute new lia standard of might prospect well is disliked —a bility damages, judge and as the district discourage prevent other- enactments thought, here F.Supp. 539, (S.D. 199 deemed desirable. wise N.Y.1961), a majority view which the adopts cir- explanation without not altered is other The situation than dealing original dissenting opinion,1 here we are cumstance give forum result is for wrongful If the act. New York death to a recovery in disregard on limitations Massachusetts application statute an al it which to type together one different from what the framers rights, when at least a source looks as of the latter is, intended. To allow that many New York as “contacts” as it strange indeed, way “provide to principle here, basis I see no can had harmony proper and intercourse other, every why not so do among the States” which the Full Faith majority appears hold that and Credit pro Clause was intended to pe- is a Indeed, case the instant view. mote. culiarly one for reliance weak wrongful relating Kilberg opinion justifies this, death all special rule The departs approve, Massachusetts statute on the our brothers basis acts. penal open us, therefore, particu character. in its norm is that “It exactly strong public larly acts are of our own Massachusetts in view “[T]he Campbell’s damages, Hud- is not.” policy act to death action Lord as what damages Lynn R. 185 Mass. & Boston R. measure of son treat 66, being procedural 519, 510, “Their 71 N.E. or remedial case damages punish- theory pol as to question controlled our own State basic compensation.” 41-42, Porter Sor- 9 N.Y.2d at N.Y.S.2d ment icies.” 837, 137, 172 ell, 182 N.E. Mass. N.E.2d at 529. It is true at culpa primary purpose that “the standard 147. The the New at 1. This injury disregard legislation, certainly, bility, total for the and of “most” acts, probably, actually de the decedent’s death sustained James, primary purpose Harper Torts, pendents, & violates Law legislation, clearly not of in 24.2 at 1288 but most cluding York, is con which New of New Massachusetts Act pecuniary plain bene loss of the York here looks as the source for the cern behind,” F.2d who tiff’s claim. remained ficiaries 497-498, 85 L.Ed. does Clause Full Faith Credit enforcing that, not demand given by for statute of a sister Although, Appeals in Court of procedural um must own abandon Kilberg, dicated in there are cases where rules. ily .and ordinar Thus forum given question issue “whether will rules as to its own procedure” one of substance or mode discovery, matters as evidence doubtful, at N.Y.2d N.Y.S.2d trial; give jury would free to 172 N.E.2d at this is foreign although provid trial the regards one. That the Massachusetts just versa, judge, ed for trial to a or vice part limit as an essential of the cause may disregard it as limitations venue legislature of action created giving claim, the statute Ten rise to the beyond only peradventure. clear Not Coal, George, nessee supra. Iron R.& R. Co. v. together does the the statute tie words foreign When the state has not closely possible, as unique as but the na period qualifica made of limitations a ture of claim, $2,000 payable the with right, may apply tion on the forum the regardless damages of the and with longer statute, its own Bournias v. At varying awards above that with de the lantic Co., 152, Maritime 220 F.2d 154- gree culpability, plain makes it (2 Cir., 1955). 158 Likewise the forum ceiling integral the right part is as may enforce a statute of limitations is, moreover, as the floor. There enacting shorter than what the persuasive state has other evidence Massachu right legislative in” “built setts’ no state can re intent. Effective in (cid:127)/ 1959, quire the keep Massachusetts open another General Court its courts rewrote given completely the statute the enforcement of but de a claim “degree clined to abolish former’s either the law which latter would not culpability” or solely by standard enforce if limitation created its own. recoverable; on the amount it Co., instead Wells v. Simonds Abrasive 345 U.S. simply 514, 856, 1211 increased the maximum from (1953).2 73 S.Ct. 97 labeling However, merely $15,000 $20,000. c. a difference Ann.Laws Mass. “procedural” 229, (Cum.Supp.1961), as Mass.Acts or law from § year 238, 1958, this substantive will c. 1. Just the stat rather than § “remedial” again amended, 1, application of Full Faith effective Jan. ute was defeat change being only Clause, 1963, John Mu 178, the rais Hancock Credit Yates, recovery ing $3,000 minimum Life U.S. Ins. Co. v. tual clearly $30,000. 129, (1936), Mass.Acts 81 L.Ed. the maximum 57 S.Ct. 1962, sense tells us Klaxon v. Stentor Electric c. 306. Common holds. Cf. Manufacturing Co. right part Inc., 487, of a is a that “The size U.S. 3. In change legislature making forum No holds that con this case explicitly stitutionally period it, disapproved, “where a had before extend the have removed re statute creates a new and in the bills which would covery ceiling altogether. Legisla or in same act See same section limits 583, enforced,” can it Record at Commonwealth of the time within which tive Mills, 451, 454, Massachusetts, 1962, Court U.S. General Davis v. of Committee Work and Busi Bulletin case, Legislature (Final Ed., to the Davis Har ness of the In addition 214, 140, (committee risburg, Sess.) states rec (1886), H. No. the bill L.Ed. 358 and Bournias v. At ommendation Co., supra, passed, based on consideration lantic Maritime indicate it bills, which, two of No. do is clear three H. this when right creating would have abolished meant No. the state H. Report ceiling); Council, 37th condition Mass.Judicial time limitation to be a on it and (“accepted” (1961) applicable generally. June — 47 thus 45 1962) report (adverse on bill to eliminate ceiling). right,” Leflar, of Laws the Full Conflict Faith On the and Credit Clause. layman would, contrary, clearly pointed A out at 118. was so anyone could indeed, Mr. Justice John astonished that Brandéis “merely procedural” case, acceptance supra, Hancock characterize as blind a recov rule of increase state law which characterizations made ery $160,000 courts $15,000 way well would or be the surest to under beyond though appre mine that, guarantee. he could this If. even defeating wholly the label ciate recov affixed rule the forum were bringing ery conclusive, equally because of untimeliness New York could over recovery in this ride action was. Until the law now Massachusetts limit on departed when area has not so far from did not have the that it contacts understanding had in common of men. The Su field of here. also, preme question “twilight zone”, has said “the there be a damages Sampson proper in Channel, measure 110 F.2d separably (1 Cir.), 756-757 denied, connected with the of ac cert. * * 650, Ry. *,” Chesapeake 1099, tion 60 ; S.Ct. (1940) & Ohio Kelly, 630, 241 Co., v. U.S. 36 S.Ct. D’Onofrio Construction v. Recon Co. 632, (1916), 60 L.Ed. 904, (1 Cir., 1958); 1117 and this rule 255 F.2d 910 Iovino applies specifically with reference to Waterson, 41, (2 Cir., v. 274 F.2d 48 wrongful claims for 1959), death. See North denied, 949, cert. 362 80 U.S. S.Ct. 190, Babcock, ern Pac. R. R. v. 154 U.S. 860, (1960), 4 L.Ed.2d a de 867 where 197-198, 978, 14 958 38 L.Ed. S.Ct. by the termination forum that a (1894); Ry. Slater v. Mexican National procedural respected .matter is will be Co., 120, 591, 48 L.Ed. though even inde another court in its (1904); Goodrich, 900 Conflict of Laws pendent judgment regard the is would (3 1949), 105; 762, ed. 15 A.L.R.2d sue as substantive. The survival of a (1951). A limit on the amount of re against claim a deceased defend resident covery statutory right on a no re bears ant, McAuliffe, 859, Grant v. Cal.2d * * * “limitations semblance to those (1953), 264 P.2d 944 cited the ma imposed promote practicality, conveni jority, may lie in this zone.4 But integrity practice”/ ence, of local and the the"^ penal transformation and limited said, which, proper as this Court has are J‘ statutory liability compensatory into ly “procedure”. denominated Collins v. e goes beyond American Automobile Ins. 230 F.2d and unlimited one far th ' 1956). (2 Cir., 416, 421-422 concept “procedure” widest or “rem- edy”. suppose No one would that Con-'" I find little contention force in gress, simply classifying its edict as distinction between substance and “procedural”, constitutionally given could di procedure not be should constitu- significance application courts, diversity in tional rect the Federal in ac- Casualty Co., v. Haumschild Continental where no there was indication that 130, (1959), slightest 95 N.W.2d 814 7 Wis.2d state of the accident had the in majority opinion, in in also cited held followed another terest course would the forum the law of forum when the inter-spouse immunity of death defense or of domicile, spouses’ which allowed the the actor was place action, rather than that of the asserted as to one of the latter’s dents; resi accident, spouse apparent determine whether one here it is that the inter tort; legislature to sue another for had the est of the Massachusetts in recognition limiting traditional view of what could be collected from governing domicile the law of the carrier common death that state relations, Emery Emery, v. marital was not confined to Massachusetts suits. (1956), Judge Traynor 289 P.2d 218 45 Cal.2d In the Grant case ex hardly pertinent. pressly distinguished statutory is It should decision causes wrongful death, be observed that Grant also action for 864-865, 41 Cal.2d both related to common law Haumschild claims 264 P.2d 947-948. altogether amount nature disregard on the different tions, limitations Massachusetts decreed. recovery what in staté amount “proce label If the mere acts. judgment death We would reverse enlarge inadequate is thus dure” Court, deci- done District beyond lim Judge Federal panel sion of written Swan. inadequate itations, to en likewise Faith and Full hurdle the able a state to v. Deu Levinson Clause. See also Credit 648, 651-652,

pree, S.Ct. U.S. Tungus (1953), 592-593, Skovgaard, dealing S.Ct. 3 L.Ed.2d “procedure” “substance” application acts of state to maritime claims. COMPANY, SOUTHERN RAILWAY Appellant, only consider There remains York has done what New contention CAMPBELL, Mary Appellee. I. Mrs. Employers supported Watson v. No. 19438. Liability Corp., 348 U.S. Assurance That Appeals L.Ed. 74 States United validly Fifth Circuit. could case held that Louisiana company subject insurance 1962. Nov. contracted, Louisiana, had outside Rehearing Denied Jan. judgments pay amounts awarded resulting injuries in from or settlements Louisiana, in- to a direct action despite stipu-

jured person a contractual against an in advance

lation judgment Louisi- or settlement. impose permitted ana was thus borders new insurers risks within its

liability, by it, wholly independ- created duty insured,

ent of the contractual Casualty Lumbermen’s Mutual Co.

see Elbert, differing many respects,

the latter essential

Collins v. American Automobile Ins.

supra, 419-422; 230 F.2d at Louisiana enforcing “public purport did not to be altering

act” of then pleasure, it to suit as New York is

doing might here. The Watson decision sustaining

well be cited as opera-

New York to make defendant’s ap-

tions within its borders a basis for

plying its own statute to deaths in the flights

course contracts made com- mencing York; way in New in no does invoking uphold New York’s the Mas- right

sachusetts Act as the source of the transforming

and then into one

Case Details

Case Name: Marilyn W. Pearson, as Administratrix of the Goods, Chattels and Credits of John S. Pearson, Deceased v. Northeast Airlines, Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 8, 1962

Citation: 309 F.2d 553

Docket Number: 27350_1

Court Abbreviation: 2d Cir.