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decided: October 14, 1964.


Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1962, No. 2013, in case of Robert E. Griffith, executor of estate of George H. Hambrecht, deceased, v. United Air Lines, Inc., Peter Serzan, George Haworth et al.


Lee S. Kreindler, of the New York Bar, with him Alvin S. Ackerman, and Jerrold V. Moss, for appellant.

Owen B. Rhoads, with him George J. Miller and Arthur W. Leibold, Jr., for appellee.

Seymour I. Toll, with him Charles A. Lord, T. E. Byrne, Jr., John R. McConnell, Ralph Earle, II, Abraham E. Freedman, Milton M. Borowsky, Morris S. Finkel, and Richter, Lord, Toll & Cavanaugh, and Krusen, Evans and Byrne, and Morgan, Lewis & Bockius, and Freedman, Landy and Lorry, for amici curiae.

J. Grant McCabe, III, and Rawle & Henderson, for amicus curiae.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 416 Pa. Page 4]

George H. Hambrecht, a Pennsylvania domiciliary, purchased a ticket from United Airlines, Inc. [United] in Philadelphia for a flight from Philadelphia to Phoenix, Arizona, and return. On July 11, 1961, he boarded a United DC-8 bound for Phoenix. In the course of landing at Denver, Colorado, a scheduled stop, the plane crashed, causing Mr. Hambrecht's immediate death.

United is a Delaware corporation with its principal place of business in Chicago. It regularly does business and maintains operational facilities in Pennsylvania.

Decedent's will was probated in Pennsylvania. In July, 1962, the executor of the Hambrecht estate commenced

[ 416 Pa. Page 5]

    an action in assumpsit against United and certain of its employees in the Court of Common Pleas No. 6 of Philadelphia County.*fn1 The complaint alleged, in substance, that United had contracted to transport safely plaintiff's decedent from Philadelphia to Phoenix and return; that in breach of this contract, certain of United's named employees, in the course of their employment, had negligently operated, managed, maintained, inspected and controlled the airplane, from which negligence the crash and death resulted; that the action was brought pursuant to the Pennsylvania Survival Act (contained in the Fiduciaries Act) of April 18, 1949, P. L. 512, § 603, 20 P.S. § 320.603; that as a result of said breach, decedent and his estate have suffered substantial damages including loss of accumulations of prospective earnings of the deceased.

United and the individual defendants filed preliminary objections in the nature of a demurrer, in which they asserted that the complaint alleged a breach of warranty without alleging a valid basis therefor, that the complaint failed to allege any contractual relationship between the decedent and the individual defendants, and that although the complaint alleged crash and death in Colorado, the action was brought under the Pennsylvania survival statute.

The court of common pleas sustained the cause of action as having been brought under a valid contract of carriage but dismissed as to the individual defendants. However, the court held that the law of the place of the injury, Colorado, not the law of the forum, Pennsylvania, controlled on the matter of damages, and granted leave to amend. No amendment having

[ 416 Pa. Page 6]

    been filed, the complaint was dismissed. Plaintiff appealed from the dismissal as to United.*fn2


Preliminarily, it is necessary to determine whether the order directing plaintiff to amend is appealable. We have previously held that "an order sustaining preliminary objections to a complaint is definitive, and therefore appealable, where it so restricts the pleader in respect of further amendments as, virtually, to put him out of court on the cause of action which he seeks to litigate: [citing case]." Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). The order of the court below does so limit the scope of possible recovery that plaintiff cannot successfully amend. Therefore, we are satisfied that the appeal is properly brought.


[ 416 Pa. Page 7]

The crux of this litigation lies in the differing measures of recovery granted in Colorado and Pennsylvania. Colorado's survival statute provides: "All causes of action, except actions for slander or libel, shall survive and may be brought or continued notwithstanding the death of the person in favor of or against whom such action has accrued . . .; and in tort actions based upon personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death, and shall not include damages for pain, suffering Page 7} or disfigurement, nor prospective profits or earnings after date of death. . . ." Colo. Rev. Stat. Ann. § 152-1-9 (Supp. 1960). (Emphasis supplied.)

Under the Pennsylvania survival statute, recovery may be had for the present worth of decedent's likely earnings during the period of his life expectancy, diminished by the probable cost of his own maintenance during the time he would have lived and also by the amount of provision he would have made for the support of his wife and children during the same period. Skoda v. West Penn Power Co., 411 Pa. 323, 335, 191 A.2d 822, 828-29 (1963).

Since decedent's death was apparently instantaneous, his estate could recover little under Colorado law, but might recover a substantial amount under the law of Pennsylvania.


We turn now to the first major issue presented by the litigation: whether the action could properly be brought in assumpsit rather than in trespass.*fn3

United urges that in The Aeronautical Code of May 25, 1933, P. L. 1001, § 406, 2 P.S. § 1472, the Pennsylvania Legislature has specifically provided that an action against an air carrier by a passenger for personal injury must, as in other tort claims, be brought in trespass. The Act directs: "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."

[ 416 Pa. Page 8]

Contrary to United's position, the clear meaning and intention of the statute is that in tort actions for injuries sustained in air disasters, no special rules applicable only to airplanes -- but not to torts on land or water -- should be utilized. The rules of negligence, e.g., duty, degree of care, burden of proof, liability, remain the same for airplanes as for other carriers. See Rennekamp v. Blair, 375 Pa. 620, 628, 101 A.2d 669, 673 (1954).

In the complaint, plaintiff characterized the contract on which suit was brought as a contract of "safe" carriage. As pointed out by the court below, this reference is inaccurate. It implies an absolute duty which would make the carrier an insurer of the safety of its passengers. Our Court has held that a public carrier owes to its passengers a high degree of care, but it is not an insurer of their safety. Seburn v. Luzerne & Carbon County Motor Transit Co., 394 Pa. 577, 580, 148 A.2d 534, 536 (1959); see Sevast v. Lancaster Yellow Cab & Baggage, Inc., 413 Pa. 250, 196 A.2d 842 (1964). Liability may be imposed only for injuries resulting from negligent conduct.*fn4 Ibid.

The complaint, however, did not limit itself to an allegation of simple breach of contract of safe carriage. The breach is specifically asserted to have been caused by the negligence of United's agents, servants and employees while acting within the course of their employment. Thus, we may conclude that plaintiff is asserting a breach of contract of nonnegligent carriage, rather than merely simple breach of contract of safe carriage.

[ 416 Pa. Page 9]

Pennsylvania law permits a shipper whose goods have been lost or damaged in transit to maintain either an action in assumpsit for breach of contract or an action in trespass for negligence against the carrier for its breach of duty. Robinson Electrical Co., Inc. v. Capitol Trucking Corp., 168 Pa. Superior Ct. 430, 79 A.2d 123 (1951). But there is no Pennsylvania authority either for or against a similar election for personal injuries sustained as a result of a carrier's negligence.

One Pennsylvania case involves a somewhat analogous situation. In M'Call v. Forsyth, 4 W. & S. 179 (1842), a stagecoach passenger was injured when the coach overturned. Our Court there ruled that plaintiff had a choice of remedies, either assumpsit or trespass on the case.

In Pittsburgh Rys. v. Givens, 211 Fed. 885 (3d Cir. 1914), the court of appeals held that the duty of a common carrier to a passenger arises from the contract of carriage, indicating that there was a cause of action in assumpsit for the resulting personal injuries. However, Givens was decided prior to Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938), which requires application of state law in diversity cases. In the absence of any Pennsylvania citation (or other authority) in the opinion, we cannot conclusively say that Pennsylvania law was being construed and applied.

The rule in New York is that an action may be brought in contract for personal injuries sustained by a passenger, but the action may not be brought in contract if death results. Kilberg v. Northeast Airlines, Inc., 9 N.Y. 2d 34, 172 N.E. 2d 526, 211 N.Y.S. 2d 133 (1961). In Maine also, an action in assumpsit may be brought by a passenger for personal injuries. Doughty v. Maine Central Transp. Co., 141 Me. 124, 39 A.2d 758 (1944).

[ 416 Pa. Page 10]

As noted in the opinion below, the English rule appears to be that the injured passenger may properly sue in assumpsit or case at his election. Protheroe v. The Railway Executive, [1951] 1 K.B. 376; Taylor v. Manchester Ry., [1895] 1 Q.B. 134; Kelly v. Metropolitan Ry. Co., [1895] 1 Q.B. 944.

To summarize: Pennsylvania permits suit against a common carrier for damage to goods to be brought in assumpsit or trespass. There is no binding Pennsylvania authority which would either permit or prohibit such an election where a passenger is injured or killed. Maine permits an election, as does the common law of England. New York allows an election if the passenger is not killed.

We cannot perceive, nor has there been brought to our attention, any compelling reason for Pennsylvania to restrict an injured passenger to an action of trespass while, at the same time, a shipper may elect between trespass and assumpsit for damage to goods. We hold, therefore, that plaintiff may bring a valid action in assumpsit for the alleged negligent breach of contract of carriage which caused the death of plaintiff's decedent.*fn5


We now address ourselves to the basic choice of law problem. An easy answer is suggested in the argument that the Colorado limitation, by its own terms, is applicable only to tort actions. Since this is a contract action, the argument continues, we need not concern ourselves with the Colorado statute. To so dispose of the issue would be to ignore the realities of the situation. Counsel for plaintiff candidly admitted that this action was brought in assumpsit in order to avoid the effect of the Colorado limitation. Yet the

[ 416 Pa. Page 11]

    recovery sought is clearly a tort recovery -- damages to decedent's estate as a result of decedent's negligently caused death. The principles which will govern defendant's liability are principles of negligence, not of contract, since the action is for negligent breach, not simple breach, of contract. As we indicated above, under the facts before us, an action for simple breach of contract would not and could not justify a substantial recovery by plaintiff. The essentials of this case remain the same regardless of its label. Mere technicalities of pleading should not blind us to the true nature of the action. The choice of law will be the same whether the action is labeled trespass or assumpsit.*fn6

In this age of increasingly rapid transit of people and goods, that segment of the law known as conflict of laws, or perhaps more accurately, choice of law, has become more and more significant. In view of this development, it is of utmost importance that our Court re-examine its position in this field of law ...

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