Griffith v. United Air Lines, Inc.

Dissenting Opinion by

Mr. Chief Justice Bell:

First: I would hold that the Order appealed from is not, as the Court’s Opinion states, “an order directing plaintiff to amend”; the Order appealed from is an Order sustaining preliminary objections and dismissing plaintiff’s complaint. Since the Order dismissed plaintiff’s complaint, it was not an interlocutory but a final Order and was therefore undoubtedly appealable.

Second: I agree with the able opinion of President Judge Sloane and strongly disagree with the majority Opinion. It substitutes for a clear and definite and *26well settled rule with its certainty and stability, a new nebulous and obviously tentative rule which is so indefinite and flexible and is capable of so many different interpretations and applications that it will undoubtedly produce uncertainty, confusion, conflicts between States, and increased litigation.

More particularly, I dissent for each of the following reasons.

(1) The majority Opinion admits that this is an action in assumpsit but then treats it as if it were an action in tort. It is not clear to me (a) how and why assumpsit lies, not for a breach of the contractual warranty of safe carriage, but for the breach through negligence of a contract of carriage or (b) how plaintiff escapes §406 of the Act of May 25, 1933, P. L. 1001, 2 P.S. §1472, which clearly covers and rules this case. It provides: “The liability of the owner or pilot of an aircraft carrying passengers for injury or death to such passengers, shall be determined by the rules of law applicable to torts on the lands* or waters of this Commonwealth arising out of similar relationships.”

(2) For over 100 years the law of Pennsylvania has been clearly settled, namely, the substantive rights of the parties, as well as the damages recoverable** are governed by the law of the place of the wrong or as it is sometimes expressed, the law of the place where the injury occurred—lex loci delicti: Vant v. Gish, 412 Pa. 359, 365-366, 194 A. 2d 522, 526 (1963); Bednarowicz v. Vetrone, 400 Pa. 385, 162 A. 2d 687 (1960) ; Rennekamp v. Blair, 375 Pa. 620, 101 A. 2d 669 (1954) ; Maxson v. McElhinney, 370 Pa. 622, 624, 88 A. 2d 747; Rodney v. Staman, 371 Pa. 1, 3, 89 A. 2d 313; Limes v. Keller, 365 Pa. 258, 74 A. 2d 131; Randall v. Stager, *27355 Pa. 352, 354, 49 A. 2d 689; Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870; Mike v. Lian, 322 Pa. 353, 185 Atl. 775 (1936); Dickinson v. Jones, 309 Pa. 256, 163 Atl. 516 (1932) ; Barclay v. Thompson, 2 Pen. & W. 148 (1830) ; Julian v. Tornabene, 171 Pa. Superior Ct. 333, 90 A. 2d 346.

In the recent case of Vant v. Gish, 412 Pa. 359, 194 A. 2d 522 (1963), the Court, speaking through Justice Roberts, said (page 365) : “Under the usual and prevailing doctrines of conflict of laws, the situs of a tort is the place of the injury. See Openbrier v. General Mills, Inc., 340 Pa. 167, 16 A. 2d 379 (1940); Mike v. Lian, 322 Pa. 353, 185 Atl. 775 (1936) ; Restatement, Conflict of Laws, §377 (1934).”*

Moreover, the rights and liabilities of an airplane owner or carrier are not as new or novel as the majority suddenly discover. We all know that airplanes fly all over the earth, the sea, and the sky, and that airplane flights, take-offs and landings have undoubtedly created new and novel and difficult problems. These problems — including the question of exactly where the injury arose or accident occurred, and what caused it, and what is the appropriate form of action, and the proper forum, and what substantive law should govern, and what is the measure of damages which are recoverable — arose long before 1964 and have existed for approximately a third of a century.

Furthermore, the law of lew loci delicti has been applied specifically in a recent case arising from an airplane crash. In Rennekamp v. Blair, 375 Pa., supra, a unanimous Court, speaking through Justice, later Chief Justice, Jones, said (pages 621-622) : “This action was instituted in the Court of Common Pleas of Allegheny County [Pennsylvania] by the personal *28representatives of James F. Swain, deceased, to recover damages for his wrongful death in the crash, near Charleston, West Virginia, of a private airplane in which he was a guest passenger. The defendants were the owners of the airplane' and procured the pilot’s services for Swain’s use of the plane on the trip that ended fatally ....

“The substantive rights of the parties are to be governed by the lex loci delicti — in this instance the law of West Virginia: Randall v. Stager, 355 Pa. 352, 49 A. 2d 689; Restatement, Conflict of Laws, §379. Section 5474 of the West Virginia Code confers a right of action for wrongful death enforceable by the decedent’s personal representative; section 5475 limits the damages recoverable in such an action to not more than $10,000 ....

“The pilot’s duty to the passenger was to exercise ordinary care in the circumstances. By statute in this State [Pennsylvania] the liability of an owner or pilot of an aircraft for injury or death to passengers carried is to be determined according to the law applicable to torts on the lands or waters of the Commonwealth arising out of similar relationships: Act of May 25, 1933, P. L. 1001, Sec. 406, 2 PS §1472. Swain was admittedly a guest in the plane and not a passenger for hire. Accordingly, the pilot, and by the same token his employers (for the purpose of this case the defendants were the pilot’s employers), owed Swain the same degree of care that an owner or operator of a motor vehicle on land owes to a gratuitous passenger, that is, the care which a reasonably prudent man would exercise in the same or similar circumstances. Such is the rule generally. See Bruce v. O’Neal Flying Service, Inc., 231 N.C. 181, 185, 56 S.E. 2d 560; Hall v. Payne, supra, p. 144; Schumacher v. Swartz, 68 D. & C. 3, 8; 6 American Jurisprudence, Aviation, §60; Rhyne, Aviation Accident Law, 57-58.” (page 628)

*29The majority Opinion repudiates this long and well settled law (a) even though it was reiterated as recently as October 11, 1963, and (b) even though the law was applied to claims for death resulting from the negligence of the owner of an airplane, and (c) even though the Act of 1933, supra, proscribes the majority’s new differential test. Furthermore, the Court’s Opinion creates a new test or formula which has no clear and definite application to many varied factual situations which are certain to arise.

(3) The majority Opinion demonstrates (a) that it is impossible to formulate at this time a new and different test which can be applied with definiteness and certainty to many varied situations, and (b) it concedes that there is widespread “disagreement among the critics as to the successor to that rule”, i.e., lex loci delicti, and that it will likely have to be developed gradually and frequently changed, and (c) that it is so indefinite and flexible that it will also almost inevitably create instability, uncertainty, confusion and conflict of law throughout our Country, and will undoubtedly greatly increase the volume of litigation which is already swamping Courts, and thereby further delay speedy Justice. Practically speaking, the only thing certain about the new rule is that plaintiffs will bring their suits in or under the law of the State which allows them to collect the most damages.

Many examples could be given to illustrate and demonstrate the confusion, uncertainty and conflict which the majority’s new and flexible formula can and undoubtedly will create, but one will suffice.

Certain friends who are members of a trade association plan to use the same plane in flying to San Francisco to attend a convention. They live respectively in Boston, New York, Philadelphia and Houston. The plane is to commence its flight at Boston, with stops at New York, Philadelphia and Chicago. Those who *30live in Boston, New York and Philadelphia buy their tickets and board the plane in their own home towns. The Houstonian buys his ticket in Miami but boards the plane at Chicago. The carrier is a Delaware corporation with its main office in Omaha, Nebraska. Fatal engine trouble develops over Missouri and the plane crashes in Kansas. All four friends are killed.

Under the majority’s new formula one may well ask in what Court or Courts suits for damages should be instituted by the families or estates of these four passengers, what State’s substantive law would apply and the law of what State would control the measure of damages? Other similar or varied states of fact will undoubtedly arise in the future to plague and vex the Courts and the legal profession. Without a fixed and inflexible rule, the result could be only confusion or chaos, plus an inevitable increase in conflict and litigation.

(4) I fear that the adoption of the majority’s new, indefinite and litigation-inviting test, which overrules Bennekamp v. Blair, 375 Pa., supra, and distinguishes without any legal distinction or justification Vant v. Gish, 412 Pa., supra (decided within less than a year), finally sounds the death knell to the principle of stare decisis which has been, and supposedly still is, a part of the law of Pennsylvania. Borsch Estate, 362 Pa. 581, 67 A. 2d 119.

Stare Decisis — What, Why, Whither?

Stare decisis is a basic, fundamental principle of Law which provides certainty, stability and clarity to the law and enables American citizens, public officials, Congress and legislators alike, to know their powers, rights, limitations and liabilities and to conduct their private lives and to manage their private business and public affairs with certainty. However, — contrary to *31what some of its eradicators seem to think — stare decisis is not as fixed and immutable as “The laws of the Medes and Persians”, and there are five recognized exceptions to this rule which protect and preserve justice in all changing circumstances.

Ever since Lord Coke, Chief Justice of England, enunciated (circa 1600) the famous and until recently the time-honored maxim of the law: “The knowne certaintie of the law is the safetie of all,” Stare Decisis has been one of the bed-rocks upon which the House of Law has been erected and maintained. This famous maxim has been a beacon light for Anglo-American Courts, for text authorities and for law-abiding Americans ever since the foundation of our Country.

As early as 1953, in Brown v. Allen, 344 U.S. 443, Mr. Justice Jackson (in a concurring opinion on the abuse of the writ of habeas corpus) aptly and pertinently said (page 535) : “Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles

Mr. Justice Frankfurter, in his concurring opinion in Green v. United States, 356 U.S. 165, 192 (1958), said (page 192) : “To be sure, it is never too late for this court [1] to correct a misconception in an occasional decision,[2] even on a rare occasion to change a rule of law that may have long persisted but also have long been questioned and only fluctuatingly applied . . .

*32I repeat what I said in my concurring opinion in Michael v. Hahnemann M. C. & Hospital, 404 Pa. 424, 172 A. 2d 769 (pages 437, 438, 439), and in my dissenting opinion in Olin Mathieson Chemical Corporation v. White Cross Stores, Inc., 414 Pa. 95, 103, 199 A. 2d 266: “In a Constitutional Republican form of Government such as ours, which is based upon law and order, Certainty and Stability are essential. Unless the Courts establish and maintain certainty and stability in the law, businessmen cannot safely and wisely make contracts with their employees or with each other; the meaning of wills, bonds, contracts, deeds and leases will fluctuate and change with each change in the personnel of a Court; property interests will be jeopardized and frequently lost or changed; Government cannot adequately protect law-abiding persons or communities against criminals; private citizens will not know their rights and obligations; and public officials will not know from week to week or month to month the powers and limitations of Government. This has been recognized for centuries by English-speaking peoples ....

“It is obvious, if we are to progress, that there always will be exceptions to every general rule or principle, and that neither the law nor the principle of stare decisis can or should be as immutable as the laws of the Medes and the Persians. Nevertheless, it is obvious, at least to me, that the principle of stare decisis should not be ignored or extirpated, actually or effectually, because of changes in the personnel of a Court. Mr. Justice Franfurter has stated the two exceptions which to him seem justifiable. I agree with him, and while I would express the same thoughts a little differently, I would go further. I would hold that the principle of Stare Decisis should always be applied, irrespective of the changing personnel of this (or any other Supreme) Court, concept in the two situations set forth *33by Justice Frankfurter and in the following situations: (1) Where the Supreme Court of Pennsylvania is convinced that prior decisions of the Court are irreconcilable, or (2) the application of a rule or principle has undoubtedly created great confusion; or (3) in those rare cases where the Supreme Court of Pennsylvania is convinced that the reason for the law undoubtedly no longer exists, and [change of circumstances or] modern circumstances and Justice combine to require or justify a change, and no one’s present personal rights or vested property interests will be injured by the change. Change of circumstances or modern circumstances does not mean, nor has it ever heretofore been considered as the equivalent of ‘change of personnel in the Court,’ or the substitution of the social or political philosophy of a Judge for the language of the Constitution or of a written instrument, or well settled principles of law.”*

Up to the present time the well settled and directly applicable law of lex loci delicti has created no uncertainty or confusion in its language or in its application. Furthermore, there are no new circumstances, there is no change of circumstances, there are no irreconcilable decisions of this Court, the law of lex loci delicti has been consistently — not fluctuatingly — applied, there is no convincing reason or any justification for a change in the law of Pennsylvania, especially where the newly formulated rule creates, as we have *34seen, such obvious uncertainty, confusion and likely conflict of laws between the States.

This Griffith case does not fall within any of the aforesaid recognized exceptions to the principle of stare decisis.

For each of these reasons I dissent.

Italics throughout, ours.

On this point, see particularly, Rodney v. Staman, 371 Pa. 1, 3, 89 A. 2d 313; Rennekamp v. Blair, 375 Pa. 620, 101 A. 2d 669.

The Restatement in this field is in process of change, bnt the exact change, or the exact formula, has not yet been finally determined.

The present trend to eliminate stare decisis from our law was foreseen by Justice Owen J. Roberts in 1944 in Smith v. Allwright, 321 U.S. 649, when he said (page 669) : “The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring- adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”