Staley, Chief Judge, McLaughlin, Kalodner, Hastie, Ganey, Freedman and Seitz, Circuit Judges. Freedman, Circuit Judge. Seitz, Circuit Judge. Hastie, Chief Judge, with whom McLaughlin and Ganey, Circuit Judges, join.
This appeal arises out of wrongful death and survival actions brought by plaintiff-appellee, Donald A. Scott, Administrator of the Estate of Thomas L. Moody, deceased, against defendant-appellant, Eastern Air Lines, Inc. Plaintiff's decedent, a Pennsylvania resident, was killed while returning home aboard a Lockheed Electra aircraft operated by Eastern. The plane crashed into the navigable waters of Boston Harbor shortly after taking off from Boston's Logan Airport on a flight to Atlanta, Georgia, with the first scheduled stop at Philadelphia. Basing jurisdiction on diversity of citizenship, the decedent's administrator brought suit on the "law side" of the United States District Court for the Eastern District of Pennsylvania, alleging that the decedent's fatal injuries were the result of "negligence, breach of warranties, and breach of contract" on the part of Eastern.*fn1
The following facts are undisputed. Mr. Moody resided in an apartment in Philadelphia from June 1, 1955, until his death. During this period, he was employed by Sears Roebuck & Co. as a territory field man with an office in the Sears' Administration Building in Philadelphia. His ill-fated trip to Massachusetts was taken in furtherance of his employer's business; it concerned the opening of a new store in Sagus, Massachusetts. The ticket on which the decedent was travelling at the time of his death was issued in Philadelphia by Northeast Airlines for a trip from Philadelphia to Boston on October 3, 1960, on Northeast Airlines, and for a return trip from Boston to Philadelphia on October 4, 1960, on the Eastern aircraft.
Eastern is incorporated under the laws of the State of Delaware and does business in various states, including Pennsylvania. Its principal place of business is neither in Pennsylvania nor in Massachusetts.
At the time of his death, decedent was unmarried and childless. He was, however, survived by a brother, Robert, of Los Angeles, California, who was named as sole beneficiary in decedent's will. The necessary letters of administration were granted by the Register of Wills of Philadelphia County, and an inventory of the estate disclosed that decedent owned personal property situated in Pennsylvania but no real property anywhere. He did, though, at the time of death, have a lease on his apartment in Philadelphia. The debts of the estate, all owing to Pennsylvania creditors, were approximately $1,000. The estate was solvent and paid out over $1,000 in Pennsylvania inheritance taxes. However, the estate did resist a claim by the Commonwealth of Pennsylvania for $4,773.03 in inheritance taxes on decedent's interest in the Sears Roebuck saving and profit sharing pension fund passing out of his estate to beneficiaries residing in North Carolina who had been designated by decedent in accordance with the rules of the plan.
The district court tried the case in two stages. First, evidence was heard on the sole issue of liability, with the jury returning a verdict in favor of the plaintiff and against Eastern. This, of course, meant that the negligence of the airline was a proximate cause of Moody's death. Next, after refusing Eastern's request for an instruction to the effect that damages could only be awarded in accordance with the laws of Massachusetts, the district court instructed the jury to award damages in compliance with the laws of Pennsylvania. This they did, rendering a verdict of $2,500 under the Pennsylvania Wrongful Death Act, 12 Purdon's Pa. Stat. Ann. § 1601 et seq., and $45,000 under the Survival Act, 20 Purdon's Pa. Stat. Ann. § 320.601. We are here concerned with the propriety of applying Pennsylvania law to the issue of damages rather than the law of the place of injury, Massachusetts.
The question presented to this court is one of some importance. Not only will our decision directly affect the instant litigants, but it may also have an important bearing on the outcome of many other suits arising out of the Eastern Air Lines crash. We have carefully considered the opposing arguments and theories presented at oral argument and in the respective briefs, and have concluded that the ruling of the district court should be affirmed.
The Massachusetts statutes concerning liability for wrongful death and the survival of causes of action, as in effect at the time of the accident, made one whose negligence has caused the death of another liable "in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability" and also permit recovery of certain expenses incurred as a result of the wrong. Mass. Gen. Laws ch. 228, § 1(2) and ch. 229, § 2. The Massachusetts law is obviously restrictive and penal in nature as it provides for liability, within the specified limits, commensurate with the "degree of culpability." Pennsylvania's Wrongful Death and Survival Acts, on the other hand, are compensatory in nature. As applied to this case, recovery under the Survival Act would include the amount of lost past earnings from the date of death to the date of trial less what the decedent would have probably spent on his own maintenance, plus the amount of future earnings, reduced to present worth, from the date of trial less the probable cost of decedent's maintenance during the time he would have lived. Recovery for the wrongful death would encompass funeral expenses and expenses of administration necessitated by reason of the injuries causing death.
With respect to the survival action, it is our view that plaintiff has presented a valid diversity claim under the laws of Pennsylvania. As already noted, the complaint alleged that the decedent's fatal injuries were the result of Eastern's "negligence, breach of warranties, and breach of contract." During the pre-trial proceedings, plaintiff specifically waived his breach of warranty theory, but there is no evidence that there was any waiver of the contract claim. Such a claim is cognizable in assumpsit under Pennsylvania law as a cause of action for breach of contract of nonnegligent carriage. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).
Eastern, however, argues that under the agreed "statement of the case," which largely constitutes the record on this appeal, there is no basis for finding a contractual obligation between Eastern and the decedent. With this we cannot agree. In Griffith, the Pennsylvania Supreme Court held that in adjudicating a claim based on breach of contract of nonnegligent carriage "* * * 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." 416 Pa. at 11, 203 A.2d at 800. A reading of the agreed "statement of the case" discloses that plaintiff alleged in his complaint that decedent's death was caused, among other things, by Eastern's negligence, and at the trial of the cause, he relied upon the issues of Eastern's negligence with respect to: (1) the design and operation of the airplane; (2) the use of this airplane at Logan Airport in view of the known field conditions; and (3) in permitting the airplane to operate with a defective co-pilot's seat. Since the jury found in favor of plaintiff and against Eastern, this finding perforce had to be predicated on the existence of negligence.
The fact that plaintiff did not introduce into evidence a document entitled "contract of carriage" is not fatal to his claim, for the common carrier's contractual obligation to transport its passengers in a nonnegligent manner is not bargained for by the respective parties; rather it is imposed by law. As reiterated in Doughty v. Maine Central Transp. Co., 141 Me. 124, 129, 39 A.2d 758, 759 (1944),
" 'The law requires the common carrier of passengers to exercise the highest degree of care that human judgment and foresight are capable of, to make his passenger's journey safe. Whoever engages in the business impliedly promises that his passenger shall have this degree of care. * * * The passenger's remedy may be either in assumpsit or tort, at his election.'"
Although the Pennsylvania Supreme Court in Griffith did not explicitly refer to the derivation of the carrier's obligation, in holding that Pennsylvania will recognize a claim based on breach of contract of nonnegligent carriage, the court did say,
"We cannot perceive, nor has there been brought to our attention, any compelling reason for Pennsylvania to restrict an injured passenger to an action in trespass while, at the same time, a shipper may elect between trespass and assumpsit for damage to goods. * * *" 416 Pa. at 10, 203 A. 2d at 800.
Robinson Electrical Co. v. Capitol Trucking Corp., 168 Pa. Super. 430, 79 A. 2d 123 (1951), is the Pennsylvania decision which held that a shipper of goods could elect between trespass and assumpsit. In that case, the court said:
"The liability of a common carrier for goods entrusted to it for transportation does not arise from contract, but is cast upon the carrier by the law. * * * An action either ex delicto or ex contractu will lie for breach of the carrier's duty. * * *" 168 Pa. Super. at 433, 79 A. 2d at 125.
Since it is clear that a shipper of goods impliedly promises that the goods will be transported in a nonnegligent manner, the conclusion is inescapable that an airline also impliedly promises that its passengers will be carried in a nonnegligent fashion. No amount of sophisticated argumentation can convince us that Pennsylvania imposes a higher duty of care with regard to the shipment of goods than it does with respect to the carriage of passengers. Indeed, such a value priority would be unthinkable in this day and age. In light of the foregoing discussion, therefore, we think that plaintiff, under the facts of this case, did all that was required of him to establish his state-related claim of breach of contract of nonnegligent carriage. He alleged the breach of contract, he introduced into evidence the airplane ticket purchased by decedent in Philadelphia, and he proved that the negligent breach of Eastern's implied promise constituted a proximate cause of decedent's death. Nothing else need have been done.
Now the argument has been advanced that the Pennsylvania Supreme Court in the Griffith case seemed to adopt the old common law procedural device of waiving the tort and permitting recovery in assumpsit in order to enable Pennsylvania law to control recovery sought by a paying passenger for negligent injury suffered at the hand of a common carrier. It is contended under this argument that Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), did not go so far as to require a federal court seeking to redress a maritime tort to accept Pennsylvania's invocation of an ancient device of common law pleading to accomplish a fictitious transmutation of a suit on a maritime tort into a suit on civil contract with resultant abdication of federal authority over maritime mishaps. This theory, though adroitly phrased and vigorously asserted, is not a perplexing one as we think this court decisively settled the issue in Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (C.A. 3), cert. denied, 375 U.S. 940, 11 L. Ed. 2d 271, 84 S. Ct. 343 (1963). In that case, plaintiffs, alleging maritime jurisdiction, sought redress in the federal district court on claims involving tort, breach of contract, and breach of warranty. The district court dismissed the actions as being not within the maritime jurisdiction. 203 F. Supp. 430. On appeal, this court, speaking through Chief Judge Biggs, held that although the tort claims under consideration fell within admiralty jurisdiction,
"* * * a contract or warranty relating to the airframe or power plant of a land -based aircraft and a contract of carriage by air between two cities on the United States mainland are not maritime in substance, nor are such contracts and warranties made maritime by virtue of the fact that the aircraft in question flew briefly over navigable waters en route from Boston to Philadelphia." 316 F.2d at 766.
Proper judicial administration commands that once the expectation is established that a particular claim is state-created and not maritime in nature, that expectation will not be dashed except for the most compelling of reasons. And since we think that Weinstein accurately distinguished between tort claims that are maritime in nature and contract claims that are not, we hold that recognition of the diversity claim for breach of contract of nonnegligent carriage can in no sense be construed as an abdication of federal authority over maritime torts.
As the contractual claim against Eastern is rooted in Pennsylvania law, it is governed directly by the teaching of Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), which directs district courts to look to the choice of law rule of the state in which it sits. Pennsylvania's rule was articulated in the now familiar case of Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A. 2d 796 (1964). In Griffith, the plaintiff's decedent purchased a ticket from United in Philadelphia for a flight from Philadelphia to Phoenix, Arizona, and return. On the way to Phoenix, the decedent met immediate death when the plane crashed in the course of landing at Denver, Colorado, a scheduled stop. The issue before the court in Griffith was whether Pennsylvania or Colorado law should govern the amount of recoverable damages. In reasoning toward the ultimate conclusion that Pennsylvania law controlled, the court stated:
"* * * the strict lex loci delecti rule should be abandoned in Pennsylvania in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court. * * *" 416 Pa. at 21, 203 A. 2d at 805.
The court wisely avoided the pitfall of substituting one rigid rule for another, but did go on to rely upon a balance of the following factors: the interests of the place of the injury; the interests of the place where the relationship was created; the domicile of decedent and his family; the place of the administration of the decedent's estate; and the domicile of the decedent's surviving dependents.
Aside from the obvious factual similarity between Griffith and the instant case, it becomes apparent when we apply Pennsylvania's interest and policy analysis to the facts of this case, Pennsylvania "has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law." See McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682 (1966). The only arguable factor pointing to the application of Massachusetts law is that Massachusetts was the place of injury. Under Pennsylvania law, however, this factor in itself does not necessarily create a legal interest in favor of the application of Massachusetts law. For example, in Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966), a case concerning actions for the death of Pennsylvania domiciliaries killed in an airplane crash in Georgia, the court, in holding that Pennsylvania law applied, stated that "under no stretch of the imagination can Georgia be viewed as a concerned jurisdiction," 422 Pa. at 624, 222 A.2d at 899, and implied that the Griffith case, like Kuchinic, exemplified a "false conflict" where the place of injury had only "nominal contacts with the transaction." 422 Pa. at 624 n.4, 222 A.2d at 899 n.4.
When the facts of this case are juxtaposed with those of Griffith and Kuchinic, it becomes evident that the conflict here is just as "false" as it was there. Appellant's argument that Massachusetts has a substantial interest in view of the underlying policy of its Wrongful Death Act to deter potential tortfeasors from engaging in tortious conduct in Massachusetts is unpersuasive. If deterrence is, as it seems to be, the underlying policy of the Massachusetts act, see Hudson v. Lynn & B.R.R. Co., 185 Mass. 510, 71 N.E. 66 (1904), there can be no impingement upon this policy by exposing appellant to Pennsylvania's more liberal, compensatory measure of damages. Indeed, liability for compensatory damages is in itself a deterrent against tortious conduct, and appellant cannot reasonably contend that it and ...