Appeal, No. 159, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 3343, in case of Kenneth E. Rennekamp and M. Gordon Gulley, Exrs., Estate of James F. Swain, deceased v. Oliver Blair and E. P. Mellon, 2nd, trading as The Meloby Company. Judgment affirmed.
John E. Evans, Jr., with him Evans, Ivory & Evans, for appellants.
Joseph F. Weis, with him Thomas F. Weis and Sherriff, Lindsay, Weis & McGinnis, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This action was instituted in the Court of Common Pleas of Allegheny County by the personal representatives 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 jury returned a verdict for the plaintiffs in the sum of $10,000. The court en banc entered judgment for the defendants n.o.v. and this appeal by the plaintiffs followed. The sole question involved is whether the evidence adduced at trial was sufficient to support a finding of causative negligence on the part of the pilot.
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. Negligence is adjudged in West Virginia, however, according to the principles of the common law, and, in the absence of evidence to the contrary, as here, it is to be presumed that the common law of West Virginia in relevant connection is the same as the law of the Pennsylvania forum: General Motors Acceptance Corporation v. Foley, 311 Pa. 477, 481, 166 A. 909; Restatement, Conflict of Laws, § 622.
Viewing the evidence in the light most favorable to the verdict, the material facts may be summarized as follows.
Swain, a geologist in the employ of a Pittsburgh engineering firm, found it necessary to make a business trip to Dante, Virginia. Being well acquainted with the defendants, who were partners in the Meloby Company, he requested the use of their privately owned airplane for the trip. One of the partners arranged for him to be flown in the firm's plane with Sherman S. Houston acting as pilot. Houston, who was a professional flier, was employed as such by another company (Mellon-Stuart Construction Co.) but his services were ordinarily available to the partners of the Meloby Company. Swain was to be flown gratuitously.
With Houston and Swain aboard, the plane took off from the Allegheny County Airport and in due course arrived at Kanawha Airport near Charleston, West Virginia, where it was tied down for the night. Next morning the plane was refueled and engine oil added. At that time it was noted that oil was dripping from the nacelle (enclosing shelter or cover) of the right engine ...