Curry, Earl Moss, Jr.

English

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Volume 65 Issue 2 Article 6 February 1963 Conflict of Laws--Wrongful Death Measures of Damages--Substantive or Procedural? Earl Moss Curry Jr. West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Conflict of Laws Commons, and the Torts Commons Recommended Citation Earl M. Curry Jr., Conflict of Laws--Wrongful Death Measures of Damages--Substantive or Procedural?, 65 W. Va. L. Rev. (1963). Available at: https://researchrepository.wvu.edu/wvlr/vol65/iss2/6 This Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW REVIEWunless the grounds upon which the agency acted, in exercising itspower, were those upon which its action could be sustained. Baudinv. Dulles 235, F.2d 532 (D.C. Cir. 1956). It has been decided thatif the agency's action is arbitrary the injured party win have theright to judicial review. Joint Anti-Fascist Refugee Comm. v. Mc-Grath, supra; Friend v. Lee, 221 F.2d 96 (D.C. Cir. 1955).It seems, therefore, that the decision of the principal case doesnot vary from the rules already established concerning agency action.This case will inhibit the use of publicity type enforcement techniquesif such techniques are used in an arbitrary or capricious manner.On the other hand, if the press release is issued in a valid exerciseof the agency's authority and is in compliance with the law thedecision of the case will not affect it, for the courts will not interferein the valid exercise of an agency's power.The courts in these situations are placed in a delicate position,for they must not only promote the public's interest in the adminis-tration of the law but also safeguard the constitutional right of eachindividual. But, as the cases indicate, the rights of the individualrise higher than the preservation of enforcement techniques employedby administrative agencies.Thomas Franklin McCoyConflict of Laws-Wrongful Death Measure of Damages--Substantive or Procedural?The intestate, a passenger of D's common carrier aircraft, waskilled in a crash in Massachusetts, the state of D's incorporation. P,as administratrix of her husband's estate, brought suit in federaldistrict court, in New York, on diversity of citizenship. On appeal,only the cause of action based on the Massachusetts wrongful deathact was considered. The district court applied the Massachusettsstatute, but refused to apply the 15,000 dollar limitation, as beingcontrary to the public policy of New York. The circuit courtreversed. Upon rehearing, the court, sitting en bane, held, reversedand affirmed the district court. If the foreign law normally applicableviolates the strongest moral convictions or appears profoundly unjustat the forum, neither the Full Faith and Credit Clause nor the DueProcess Clause requires that the law be applied. Pearson v. North-L Vol. 651Curry: Conflict of Laws--Wrongful Death Measures of Damages--SubstantiveDisseminated by The Research Repository @ WVU, 1963CASE COMMENTSeast Airlines, Inc., 31 U.S.L. WEEK 2256 (2d Cir. Nov. 8, 1962).It is a well settled principle of conflict of laws that the right tomaintain an action for wrongful death is governed by the law ofthe place of the wrong subject to the qualification that if such lawis contrary to the strong public policy of the forum, the forum may,in its discretion, refuse to enforce the right. Stewart v. Baltimore &0. R.R., 168 U.S. 445 (1897); Northern Pac. R.R. v. Babcock,154 U.S. 190 (1894); Royal Indem. Co. v. Atchison, T. & S. F. Ry.,272 App. Div. 246, 70 N.Y.S.2d 697, aff'd, 297 N.Y. 619, 75N.E.2d 613 (1947). See GOODRICH, CONFLICT OF LAW, § § 11, 92(3rd ed. 1949); LEFLAR, CONFLICTS OF LAWS, § 48 (1959); RE-STATEMENT, CONFLICT OF LAWS §§ 391, 412, 147, 612 (1934).Equally settled is the rule that the law of the forum governs allmatters procedural in nature while the law of the place of thewrong governs all substantive matters. Franklin Sugar Refining Co.v. Lipowicz, 247 N.Y. 465, 160 N.E. 916 (1928).The court in the instant case, has applied the rule as laiddown as dictum by the New York court in Kilberg v. NortheastAirlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526(1961). The Kilberg Case, which arose from the same accident asthe instant case, held that the plaintiff could not maintain an actionfor breach of contract in causing his intestate's death, but that thisdid not preclude the plaintiff from recovering more than the $15,000maximum specified in the Massachusetts act. The New Yorkcourt stated that the Massachusetts wrongful death action was notonly sustainable, but in applying this act the court would refuseto apply the limitation of the Massachusetts statute because NewYork public policy prohibits the imposition of limits on such damages.In effect, the Kilberg case says that the question of damages is oneof procedure rather than one of substance. Judge Froessel, inaffirming dismissal of plaintiff's action for breach of contract, saidthat the overwhelming weight of authority in New York and theUnited States is in accord with the rule that the law of the placeof injury governs not only the existence of the cause of action forwrongful death but also the measure of damages. Kilberg v. North-east Airlines, Inc., supra. The New York court appears to haveplaced its decision on alternative grounds-that New York publicpolicy prohibits the enforcement of the limitation, and that thequestion of damages was procedural, rather than substantive, innature. Both grounds call for the application of the law of the forum.Having determined that New York public policy prohibits the1963 ]2West Virginia Law Review, Vol. 65, Iss. 2 [1963], Art. 6https://researchrepository.wvu.edu/wvlr/vol65/iss2/6WEST VIRGINIA LAW REVIEWimposition of a limit on the amount recoverable by the New Yorkplaintiff, it seems unnecessary for the court to hold that the damageissue is procedural. The great weight of judicial authority supportsthe view that the measure and amount of damages recoverable forwrongful death or a limitation on that amount are just as muchquestions of substantive law, and therefore governed by the law ofthe place where the fatal injury was inflicted, as the right to recoverfor the wrongful death. Maynard v. Eastern Airlines Inc., 178F.2d 139 (2d Cir. 1949); Jackson v. Anthony, 282 Mass. 540, 185N.E. 389 (1933); Royal Indem. Co. v. Atchison, T. & S. F. Ry.,272 App. Div. 246, 70 N.Y.S.2d 697, afI'd, 297 N.Y. 619, 75N.E.2d 613 (1947); Loucks v. Standard Oil Co., 224 N.Y. 99,120 N.E. 198 (1918). For a collection of cases on this principlelisting twenty-four jurisdictions, including New York with the major-ity, see Annot., 15 A.L.R.2d 759 (1951).The dictum of the Kilberg case that is applied in the instantcase is based on Wooden v. Western N.Y. & P. R. Co., 126 N.Y. 10,26 N.E. 1050 (1891). The doctrine of this case is criticized byJudge Cardozo in Loucks v. Standard Oil Co., supra. In the Louckscase, although it was suggested the court might refuse to enforce aright based upon a foreign statute "that outrages the public policy ofNew York", the court held that a Massachusetts statute, similar tothe one in the instant case, must be enforced, despite the fact thatNew York could not give them the same amount of damages asthe New York law would give if the wrong had occurred there.Thus Judge Cardozo clearly indicated that the maximum damageswould be controlled by the Massachusetts statute.At a later date the court refused to apply New York law asto additional liability. It was held to be well established that a causeof action for wrongful death and the extent of the damage recover-able is governed by the laws of the place where the injury causingdeath was inflicted. Royal Indem. Co. v. Atchison, T. & S. F. Ry.,272 App. Div. 246, 70 N.Y.S.2d 697, aff'd, 297 N.Y. 619, 75N.E.2d 613 (1947).Since federal jurisdiction rests on diversity, it is well settledthat the court in the instant case is obliged to apply the law of theforum, including its conflict of laws doctrine, unless some provisionof the Constitution of the United States precludes its application.Klexon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941).By a 2-1 majority, the court, in the first hearing of the instant case,E Vol. 653Curry: Conflict of Laws--Wrongful Death Measures of Damages--SubstantiveDisseminated by The Research Repository @ WVU, 1963CASE COMMENTSheld that the trial court's refusal to apply the limitation of theMassachusetts statute violates the Full Faith and Credit Clauseof the Constitution. See U.S. CONST. art. IV, § 1. Judge IrvingKaufman, who dissented to the first decision of the Second Circuit,stated that he believed that the dull conformity which would resultfrom the use of the Full Faith and Credit Clause as a strait-jacketconfining the body of conflict of laws doctrine was far less desirablethan the results which would be achieved by a more flexible inter-pretation of the Constitution. Pearson v. Northeast Airlines, Inc.,307 F.2d 131 (2nd Cir. 1962).In cases of this nature a court must decide between its ownconflict of laws rule and the policy which prohibits limitations onwrongful death claims. Faced with such a choice, the forum cannotpossibly decide in favor of the latter policy and avoid, as the courthas attempted to do, doing violence to the former. There is a signifi-cant difference between public policy as a rule for the judicialguidance of local affairs and as a rule of conflict of laws. Goodrich,Foreign Facts and Local Fancies, 25 VA. L. REv. 26 (1938). Astrong forum policy against a foreign substantive law has been heldto justify the forum's refusal to apply that law. See STRUMBERG,CONFLICTS OF LAW 198 (2d ed. 1951). It may be urged, however,that only violation of a "fundamental principle of justice" warrantsdismissal on that ground of a plaintiff's claim based on foreign law.Loucks v. Standard Oil Co., supra. The "fundamental policy" (ofthe New York wrongful death statute) is that there shall be someatonement for the wrong. Loucks v. Standard Oil Co., supra. TheMassachusetts statute fulfills this policy and the court shouldtherefore have applied the Massachusetts law."Public policy" is one way to avoid the application of a choiceof law rule which the forum wishes to avoid. The objection ofthe forum, thus, is not to the content of the foreign law but to itsown choice of law rule. Rather than to change or modify thesupposedly applicable rule the court may refuse on public policygrounds to apply the law to which the rule makes reference. Paulsen& Sovern, "Public Policy" in the Conflict of Laws, 56 CoLUm. L.REv. 969 (1956). "Public policy" could serve as a kind of residualequity principle to relieve against the harshness of a general rule asit applies to a specific situation involving important foreign facts.The recognition of public policy as a tool for doing substantialjustice in particular cases is a dangerous matter. Applied withoutthe strictest limitations it could undermine the usual conflict rules1963 ]4West Virginia Law Review, Vol. 65, Iss. 2 [1963], Art. 6https://researchrepository.wvu.edu/wvlr/vol65/iss2/6WEST VIRGINIA LAW REVIEWby causing refusal to grant recovery against a local defendant everytime he makes an improvident bargain. Paulsen & Sovern, "PublicPolicy" in the Conflict of Laws, 56 COLUM. L. REv. 969 (1956).The principal vice of the public policy concept is that it providesa substitute for analysis. The concept stands in the way of carefulthrought, of discriminating distinctions, and of true policy develop-ment in the conflict of laws. Paulsen & Sovern, "Public Policy" inthe Conflict of Laws, 56 CoLuM. L. REV. 969 (1956).Chief Justice Desmond in the Kilberg case rationalized hisdecision by saying that an air traveler from New York might flyover any one of the 14 jurisdictions that limit death case damages,and because the plane might be forced down in any one of them,the place of the injury becomes entirely fortuitous. He went on tosay that the court should protect its citizens against the unfairtreatment of the lawsuits which result from these disasters. Kilbergv. Northeast Airlines, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d526 (1961). Would this same protection be afforded a citizen ofanother state who happen to board a plane in New York, or isthis protection reserved only for the citizens of that state? JudgeKaufman in the instant case, indicates that New York's interestin the welfare of its citizens extends beyond the economic andhuman loss which they sustain since New York has assumed aduty to provide for those unable to care for themselves. This wouldseem to infer, that if the plaintiff had not been domiciled in NewYork the rule of the Kilberg case would not apply. Assume thata New Jersey citizen's representative sued in New York, and thecourt in its discretion did not apply the doctrine of forum nonconveniens, and because of the possible full faith and credit questiondecided not to apply the Kilberg dictum to a non-domiciliary plain-tiff. The court then might well have denied the plaintiff the dueprocess or equal protection of the law guaranteed by the fourteenthamendment. See THE CONSTITUTION OF THE UNITED STATES OFAMEICA ANNOTATED, 967-1170 (Corwin ed. 1952). Thus, theKilberg dictum making the application of the Massachusetts limita-tion turn on the citizenship of the plaintiff, creates a dilemma. Ifthe dictum is applied to all plaintiffs, regardless of citizenship, afull faith and credit question may arise when the plaintiff is not aNew York citizen. If the dictum is applied only to citizens ofNew York, and not to other plaintiffs, the equal protection andprivileges and immunities rights of the fourteenth amendment maybe denied.[ Vol. 655Curry: Conflict of Laws--Wrongful Death Measures of Damages--SubstantiveDisseminated by The Research Repository @ WVU, 1963CASE COMMENTSThe West Virginia court has held in actions to recover forwrongful death, that the law of the place of the wrong rather thanthe law of the forum govern the right of action in this state. Keeseev. Atlantic Grayhound Corp., 120 W. Va. 201, 197 S.E. 522 (1938).The West Virginia court later said that the substantive law of theforeign jurisdiction controls the right to recover and that the ques-tion of survivability of a cause of action was one of substantive law.Tice v. E. I. Du Pont De Nemours & Co. 144 W. Va. 24, 106S.E.2d 107 (1958). These cases seem to indicate that West Virginiawould follow the majority, at least as to the procedural issue, andbe contra to the instant case.By determining that the law of the place of the injury iscontrary to public policy of the forum and is procedural rather thansubstantive, the court in the instant case concluded that the lawof the forum must be applied on the issue of damages. This viewtends to negate both the rationale of certain conflict of law rulesand the reason for their existance-namely, to prevent the outcomeof a lawsuit from differing according to the place chosen to institutethe suit. While the decision of the instant case is no doubt bothpopular and benevolent, it seems to be an open invitation to forumshopping. To avoid this, it seems that legislation need be enactedeither by New York to give a contract cause of action, or by theCongress under the commerce power to provide that damage limi-tations in common carrier accidents would be unlawful and void.By these methods it would be possible to achieve the same laudableresults as the Kilberg and the instant cases without resorting to thelegal reasoning found here.Earl Moss Curry, Jr.Criminal Law-Conspiracy-Consistency RuleX and D were indicted on several counts, including criminalconspiracy, and were tried jointly. D entered a plea of guilty tothe charges of conspiracy. He was sentenced on October 20, 1958.Previously, on October 8, 1958, X had been tried on the conspiracycharge and acquitted. D served one sentence and brought habeascorpus to be released from serving the second consecutive sentence.The lower court granted the writ and P, the warden, appealed. Held,affirmed. In order for a court to have jurisdiction in a case it1963 ]6West Virginia Law Review, Vol. 65, Iss. 2 [1963], Art. 6https://researchrepository.wvu.edu/wvlr/vol65/iss2/6

Conflict of Laws--Wrongful Death Measures of Damages--Substantive or Procedural?

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Conflict of Laws--Wrongful Death Measures of Damages--Substantive or Procedural?

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