The opinion of the court was delivered by: BECKER
This is a suit on a policy of insurance covering accidental death. The jury, instructed as to the New York presumption against suicide which we held applicable to the facts, found for the plaintiff, Virginia Barry Melville, who was the sole beneficiary under the $500,000 policy. This opinion addresses defendant's post-trial motions.
At the core of those motions and of the case lies a complex question of choice of law: whether the presumption to be applied with respect to suicide is that of Pennsylvania, New York or Delaware where: (1) Pennsylvania is the forum state, the situs of the principal office of the insurance broker which placed the policy, and the sometime residence of the plaintiff; (2) New York is the place where the insurance contract was made, as well as the state where the defendant insurer was incorporated and had its main office; and (3) Delaware was the residence of the insured, the situs of his death, the locale where most of the facts relevant to the question of accident or suicide occurred and the place where the order for insurance was initiated. In answering that question we will be obliged to determine the applicability of the landmark case of Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964) in a contractual context. In the course of that determination we will be obliged to engage in a comprehensive survey and analysis of Pennsylvania choice of law principles and their underlying policy bases.
The foregoing is a synopsis of the facts underlying our choice of law decision. The facts which formed the basis for the decision on the merits are not so mundane; indeed, they are extraordinary. They relate to the life and times of the insured, Josiah Marvel ("Jay") Scott, member of a respected and wealthy Wilmington family, who bilked the family fortune of many millions, most of which he squandered on disastrous venture capital undertakings, and some of which he lavished upon the plaintiff, who was his secretary and his mistress. The saga ended -- and this case began -- when Scott, on the brink of exposure for his misdeeds, died in an exceedingly strange airplane crash which was presaged, in full view of spectators at the Wilmington airport, by bizarre aerobatic maneuvers. The trial testimony thus ranged from the moods and escapades of Jay Scott to the aerodynamics of aerobatic flight. The aerodynamic testimony was adduced to aid the jury in determining whether the "loops," "split-S," "tight turns" and "hammerhead stalls" performed by the chartered Atlantic Aviation Piper Cherokee Arrow in which Scott was a passenger at the time of the fatal crash occurred, as the plaintiff contends, either because the pilot was responding brilliantly to a mechanical malfunction, or because the pilot was showing off or had gone mad; or, as defendant argued to the jury, because Scott had interfered with the pilot's use of the plane's dual controls in order to cause the plane to crash, and the pilot had valiantly, but futilely, attempted to compensate for Scott's actions so as to keep the plane aloft.
The choice of law question, which is the principal issue considered in this opinion, is best understood in context of the procedural history of the case and of the facts adduced at trial; hence, we address these matters first. However, we shall also take up the following issues raised by defendant's motion:
(1) whether the evidence was insufficient to support the verdict, so that defendant was entitled to a directed verdict and, thus, is now entitled to a judgment n.o.v.;
(2) whether the verdict was so contrary to the weight of the evidence that defendant should be granted a new trial;
(3) whether we correctly instructed the jury as to the New York presumption against suicide; and
(4) whether we erred when we admitted into evidence certain F.A.A. documents (Airworthiness Directives) which opined that particular parts of the Piper Cherokee Arrow model involved posed dangers serious enough to require prompt and/or regular inspections, repairs, or replacements.
The choice of law question is both unsettled and abstruse. However, for the reasons which follow, we reaffirm the choice of law decision previously made, although on different grounds from those on which it was previously made. In the course of our discussion we will note and document our conclusions that:
(1) the presumption against suicide is substantive not procedural, hence not to be determined by mere reference to the law of the forum;
(2) in general terms, the post- Griffith Pennsylvania choice of law cases have moved from (Griffith) interest analysis to a hybrid scheme containing elements of both interest analysis and the "significant contacts" approach of Restatement (Second) of Conflict of Laws (Restatement II), but with strong territorial overtones reminiscent of the traditional rules of Restatement of Conflict of Laws (Restatement I) ;
(4) in any event, the post- Griffith case law on choice of law in contract cases is in utter disarray and confusion, leaving unclear how Pennsylvania would resolve the case at bar, particularly in view of the fact that, in interest analysis terms, this is an "unprovided-for case," i.e. one in which no state has an interest;
(5) it is therefore necessary to examine the issue before us on alternative assumptions: that the traditional choice of law rules for contracts are applicable, and that the Griffith interest analysis/ Restatement II hybrid approach is applicable; and
(6) both assumptions lead to choosing New York's law on the presumption of suicide.
We also are satisfied that we correctly stated New York law when we charged the jury that if they believed there to be a "fair question" whether Scott died from accident or suicide, they should "find accident." Additionally, we find no error in our evidentiary (rulings) and hold the evidence to be sufficient to sustain the verdict.
Accordingly, defendant's post-trial motions will be denied.
II. The Procedural History
The litigation between the parties did not begin in this Court. Instead, plaintiff first sued the defendant in the state courts of New York. That suit was dismissed on the ground of forum non conveniens, at least in part because the insurer claimed that most of the witnesses who could testify as to whether the crash was an accident or the product of a suicide resided in Delaware or Pennsylvania. The dismissal was conditioned upon the insurer's consenting to jurisdiction either in Pennsylvania or in Delaware and on its waiving the statute of limitations. Barry v. American Home Assurance Co., 38 A.D. 2d 928, 329 N.Y.S. 2d 911; aff'd, 31 N.Y. 2d 684, 337 N.Y.S. 2d 259, 289 N.E.2d 180 (1972). Thence, Ms. Melville, who was then a citizen of Pennsylvania, brought this diversity action.
III. The Facts Adduced at Trial
The facts adduced at trial concerned three subjects: (1) the placement of the insurance policy; (2) the events in Jay Scott's life preceding the fatal flight; and (3) the flight itself, (including both eyewitness and expert testimony).
The evidence with respect to the insurance policy was undisputed and was essentially as follows. In 1966, Scott, a citizen of Delaware, ordered the insurance policy through the Delaware office of Johnson & Higgins, an insurance broker whose main office is in Philadelphia. As Scott had requested, the broker placed the order by phone call with the defendant, a New York corporation, which effected an oral binder at defendant's principal place of business in New York. Defendant subsequently issued the written policy and posted it in New York, mailing the policy to the broker's Philadelphia office, through which it eventually reached Scott in Delaware. That policy was in effect at the time of Scott's death and is the subject of this case.
Halamka was an experienced, former navy pilot. Although his occupation was selling insurance, his true love was flying. He took charter assignments for Delaware Aviation Service whenever they offered him a flight. On October 16, 1970, Delaware Aviation called on Halamka to fly a charter from Wilmington, Delaware, to Teterboro, New Jersey (which is near New York City), and back again. He agreed. The only passenger in the single-engine plane was the charterer, Jay Scott.
The flight to Teterboro was uneventful. Scott disembarked, went to New York where he lunched with a business associate, Quing Yng-Wong, and returned to Teterboro. Prior to boarding the plane, he placed a telephone call to the plaintiff Virginia Barry (Melville) to request that she meet him for dinner upon his return to Wilmington.
Ms. Barry had been Scott's secretary for a number of years. She was, as we have noted, also his mistress, and he had kept her in style for quite some time.
On the return flight to Wilmington, after it had been cleared for landing, and while it was flying at an altitude of less than 1000 feet over a congested area near the airport, the plane engaged in a series of what appeared to be aerobatic maneuvers: one or two loops, some steep turning climbs and dives, a split-S, and one or two hammerhead stalls.
The plane failed to recover from a hammerhead stall and crashed nose first into the ground, killing both Halamka and Scott.
The eyewitnesses disagreed to some extent in their characterization of the maneuvers. Plaintiff called Mr. Kirk, the Wilmington Airport air traffic controller, who testified that the flight appeared to be "coordinated;" i.e., it appeared that the three basic control surfaces of the airplane were being operated as a unit.
However, defendant presented an eyewitness, Mr. Meihofer, an experienced pilot, who insisted that the flight was erratic and uncoordinated and that he had also seen the plane "porpoising."
So then, there was no dispute that the observed flight was bizarre and hazardous. Indeed, the Wilmington air traffic controller testified that he had not seen such flight in a congested control zone, at such low altitude, in his 12 years on the job.
Another expert insisted that he had seen such maneuvers done as "show-boating" on several occasions; but he did not suggest that he had seen such a performance by a pilot who had been cleared for a landing, and who was therefore identifiable and sanctionable.
Additionally, defendant presented substantial evidence that Halamka was a competent pilot, stable and happy, with no known reason to risk his license, his reputation, or his life. In this regard, defendants called Mrs. Halamka, the pilot's widow. Her testimony, and that of others acquainted with Halamka's character and skill, revealed no flaw that would suggest his responsibility for the crash.
Both plaintiff and defendant offered expert aeronautical testimony to explain the crash. We shall summarize that testimony in due course. The defendant did not, however, rely solely, or even principally, upon that testimony, except to forge a link in its theory that Jay Scott, then beyond desperation, took his own life (and that of the pilot) to avoid the shame of his gross misdeeds against his family and social peers, the imminent total exposure of which would cause his world, already in shambles, to crumble. The aeronautical testimony merely closed the ring by showing how, according to defendant's theory, Scott was able to commit suicide, while making it look like an accident. In view of the predominance of the social history in defendant's version of the case, we begin by summarizing the extensive testimony which the defendant offered to establish it.
After a stint in the Marines, Jay Scott received his B.A. from Yale and made a start towards a career in law by entering the University of Virginia Law School. However, by Christmas his law career had ended. Jay so disliked law school that he left and began training as an investment counsellor, under the tutelage of a close friend of his parents who managed the family finances. Over the years, Jay's parents had placed most of their multi-million dollar estate into a variety of trusts for themselves, and for their three children, Jay, his brother and sister.
By 1960, Jay was given full responsibility for financial management of the family trusts. By 1970, he had misappropriated several million dollars from the trusts and apparently dissipated every penny he had taken. He obtained the trust corpus by forging the signatures of his parents to stock assignments and by causing his secretary, the plaintiff, to do likewise. Cleverly, he concealed his misappropriations by regular and timely payments of "dividends" to the family calculated to match the dividends of the stocks that were supposedly the corpus of the trust. Jay invested the proceeds of his sales of the family fortune in high risk "venture" stocks, as well as in high living. By 1970, almost all the investments were in companies that were going bankrupt. Meanwhile, Jay had also fraudulently obtained substantial loans from several Wilmington banks and had engaged in an extensive pattern of kiting, writing checks on insufficient funds. He had even used his position of trust as Treasurer of the University of Delaware Library Association to misappropriate some $34,000. The defendant adduced evidence at trial that at the time of his death Jay Scott defendant owed a total of three million five hundred thousand dollars ($3,500,000) to 27 creditors. Among the largest creditors were: (1) Capital Bank and Trust Company . . . $521,147.17; (2) Chandler Leasing Division, Pepsico Leasing Corporation . . . $440,040.82; and (3) Delaware Trust Company . . . $327,271.44.
Only 8 days before the fatal crash, Jay's underground life began to surface. The Scott family attorney, learning through his firm's representation of a Wilmington bank that large judgments had been entered against Jay, informed Jay's uncle. Together they told Jay's parents, who in turn told Jay's brother. The parents and brother were, of course, concerned and sought an explanation. Jay's mother, dissatisfied with his explanation, decided to reassure herself by checking the safe deposit box in which the family trust securities were kept. It was empty.
When Mrs. Scott confronted him with this news, Jay lied, telling her that all the securities were in her personal safe deposit box. Mrs. Scott, not having used the box in years, could not locate her key, and Jay conveniently claimed to have lost his. When the bank drilled Mrs. Scott's box open, only three days before the crash, it was also empty. When he was confronted with this news, Jay lied again. Knowing that his father was away on a trip, he told his mother that all the securities were safely in his father's box. By this time, in defendant's view, Jay was trapped, having burned all his bridges behind him. Defendant theorized further that Jay thereupon laid plans for a suicide-murder that would prevent his having to face the disgrace which would ineluctably follow from the discovery that he had stolen millions from his mother, father, sister, and brother, and that he had defrauded a charitable endeavor in which he was associated with other prominent Delawareans. Moreover, he, and perhaps Virginia, the plaintiff, faced criminal prosecution. And, while much of the over $2 million in life and/or accidental death insurance which Jay possessed had been purchased some years before and not in the face of this crisis, defendant theorizes further that, because of the insurance, Jay could plan that his wife and his mistress and his children by both of them would be provided for.
Defendant's theory that Jay planned an airplane suicide was buttressed by the following evidence about his final days. First, one week before the crash, on October 9, 1970, Jay took out a $50,000 insurance policy covering only the risk that he die accidentally while travelling and naming a new mistress as beneficiary. Moreover, Jay acted suspiciously on a charter flight which he took on Monday, October 12, 1970, one day before his mother was scheduled to have her (empty) safe deposit box opened and only four days before the crash. As on the final day, Jay had chartered a flight to Teterboro, but due to weather conditions, he was carried in a twin-engine two pilot plane, in which the passenger sat in the rear seat. Jay proceeded to ask questions about the controls of the plane and about how they compared to the controls of a single-engine plane. After Jay disembarked from the plane, the two pilots saw him examining the control panel of a single-engine plane.
The next day Jay ordered the fateful charter, insisting that a single pilot single-engine plane be provided.
Admittedly, Jay left no suicide note. In fact, all the witnesses except one, both plaintiff's and defendant's agreed that he showed no signs of despondency or of impending doom in the weeks, days and hours preceding his death. Even at the luncheon which immediately preceded the final flight, Quing Yng-Wong reported that he and Scott had kidded around.
Defendant, however, says that this is not evidence contra suicide, but rather evidence of how coldly Jay Scott planned. Indeed, defendant submits, Scott's activities and personal contacts in his last day were so preposterous, given the imminence of his exposure, that they can only be understood as a charade, a deliberate, if overdrawn, attempt to leave evidence that he had not committed suicide so that his beneficiaries could collect on his insurance policies. Thus does defendant account for Jay's call to the plaintiff before he left Teterboro airport to return to Wilmington, and the substance of his luncheon earlier that day with Quing Yng-Wong at which Jay evinced a serious continuing interest in his doomed business ventures and attempted to get Quing Yng-Wong to aid therein. More representative of Jay's true state of mind, defendant contends, is his encounter a few weeks prior to the fatal crash with a personal friend who was then the Mayor of Wilmington. During that encounter Jay, looking defeated, confided that he was in "deep trouble," and importuned the friend for a $75,000 loan, which was promptly made.
As we suggested above, the significance of the defendant's interpretation of the "motive" evidence depends on its presenting a plausible theory of how Scott could have caused the plane to crash that matches the eyewitness accounts of how the plane did in fact crash. Defendant's theory is simple. It is that Scott, having been told only a few days before how the various controls of an airplane work, waited until the plane was near to landing and then used the controls to crash it.
According to defendant's theory, the reason that Jay had insisted on a single engine plane was that in such a plane the pilot and the passenger sit behind a dual set of controls. Thus the passenger could push or pull on the control yoke causing the plane to climb or dive; he could turn the yoke right or left causing the plane to bank; and/or he could step on the left or right rudder causing the plane to move left or right. Halamka, a competent pilot, would have been applying just the right pressure on any or all of these controls to direct the plane in for a landing. A sudden strong pressure, exerted by Jay Scott, in either direction on any of these controls, would have led to a sudden change in flight. Halamka could have compensated by struggling to use the same or a different control, attempting to overcome Scott's action. Defendant concludes that the result of such a struggle would have been precisely what the eyewitnesses saw: aerobatic maneuvers with some degree of coordination, but done sharply and erratically. Thus theory as to how Jay actually accomplished his suicide-murder was supported by the testimony of Mr. Meihofer, an eyewitness to the crash who is himself a pilot, and of Mr. Robinson, called by defendant as an expert in aeronautical engineering.
Counsel for the plaintiff, Ms. Melville, presented a different version of the events at issue. He conceded the defendant's chronicle of Jay's bad deeds, raising only a faint defense to the near certainty that Jay had been guilty of forgery,
and none at all to his possible prosecution for embezzlement. Neither did he deny or seek to explain away Jay's desperate financial situation. Plaintiff's theory, to counter defendant's strong evidence, was severalfold.
First, plaintiff advanced the view that Jay Scott, the intrepid one, possessed a personality which would have enabled him to weather these storms. Second, with the exception of his conversation with the friend who had made the $75,000 loan, plaintiff argued, with little contradiction, that Jay's frame of mind appeared sanguine, and that he was looking to the future. Third, plaintiff relied on the law's presumption against suicide, which, deeply rooted in human experience, rests on the notion that man, instinctively or consciously, clings to life.
The presumption applies with magnified force in this case, plaintiff says, because if Jay Scott committed suicide, he also committed murder (of the pilot, Halamka). In moral, if not in legal terms, plaintiff argued most forcefully that there must be some kind of presumption against murder, too. And fourth, plaintiff relied upon expert testimony about the aerodynamics of aerobatic flight which may be summarized as follows.
During plaintiff's case-in-chief, George H. Rhodes, a pilot, flight instructor, and producer of radio and T.V. shows about flying, testified in some detail about the principles of flight and the effects of the use of various aircraft controls. Principally, he described the complex combination of pilot actions necessary to produce aerobatics -- even those that appear to be simple. On the basis of this complexity and of his experience teaching new pilots, Mr. Rhodes expressed the firm opinion that a person who had never piloted a plane could not have performed the reported maneuvers.
Later, during rebuttal, plaintiff called a second expert, Wilbert N. Hubin, professor of physics, pilot, and teacher of aerobatics. Dr. Hubin testified in detail about the complexity of the aerobatic performance that preceded the crash. He agreed with Mr. Rhodes that a non-pilot could not have performed the reported maneuvers. Additionally, he rejected as impossible defendant's theory, developed through the testimony of Mr. Meihofer, that the aerobatics were the result of Halamka struggling to keep control of the airplane while Scott attempted to crash it. In fact, Dr. Hubin testified that if Scott had determined to commit suicide by use of the airplane's controls and had set about learning even the most rudimentary aspects of flight control, he would have realized that all he needed to do was to push the yoke forward causing a steep dive and a crash within 15 to 25 seconds, too little time for a pilot to react and save the plane.
Finally, Professor Hubin presented an alternative theory of the crash, namely, that most, but not all, of the maneuvers testified to could be explained by a mechanical malfunction in the "stabilitator" and by the pilot's attempt to compensate therefor. He suggested that the stabilitator, which aids in the control of pitch on the Arrow, could have become stuck in one position with the result that the plane's nose would keep coming up. If a skilled pilot were to find himself suddenly facing such a problem, there would be several alternative maneuvers he could perform to try to maintain flight while solving the problem. Dr. Hubin testified that the observed maneuvers would have been precisely the proper ones to execute. Dr. Hubin conceded that he could not prove to a certainty that such a mechanical malfunction had occurred; however, he insisted that his theory was not mere speculation. In support of his theory he cited two F.A.A. Airworthiness Directives, which reported that there had been mechanical failures related to the stabilitator system of the Arrow.
Additionally, Dr. Hubin claimed that Exhibit D-38, a photograph of the wreckage, revealed that a bolt was missing; that the crash would not have caused that bolt to fall out; and that that defect could have led to the hypothesized mechanical failure.
The record is voluminous; the trial lasted 9 days. While the foregoing survey of the evidence is incomplete, we believe it sufficient for present purposes, given the strictures of a judicial opinion. We will in due course (slip op. at p. 93 infra) address the question whether this evidence is sufficient to support the plaintiff's verdict. However, that task is best performed after discussion of the propriety of the jury charge (against which sufficiency must perforce be measured). And, since the correctness of the charge is in turn very much a function of which state's law governs, we must turn now to the choice of law questions.
The choice of law issue has dominated this litigation since its inception. Indeed, it seems likely that both plaintiff's initial choice of a New York forum and defendant's forum non conveniens motion which subverted that choice were motivated, at least in part, by opposing counsels' jointly held belief that New York law places insurers at a great disadvantage in suits on accidental death policies.
The question before us is whether, as a federal diversity court applying the forum state's substantive law, Erie R.Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), including its choice of law principles, Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), we should apply the law of New York, or of Delaware, or of Pennsylvania in dealing with the presumption against suicide in this case. The presumption against suicide is, as we have noted, the judicial expression of the venerable and deeply rooted human judgment that man instinctively as well as consciously clings to life and that, notwithstanding the discoveries of modern psychiatry, suicide is contrary to the primordial reflexive natural will to live.
Plaintiff has championed New York law, construing it to place the risk of non-persuasion on the suicide issue in suits on accidental death policies on the insurer. Defendant, while not conceding that New York law goes that far, suggests that either Pennsylvania or Delaware law is applicable and that the law of these jurisdictions is much clearer in putting the burden of proving "accident" on the claimant. Knowing the importance of the choice of law issue to the conduct of the trial, we informed counsel that we would determine the law to be applied in advance of trial. After the parties had fully briefed their contentions, we ruled in a pre-trial bench opinion that we would apply New York law to the accident/suicide congeries of issues. Our rulings at trial and our jury charge reflected that decision. In responding to defendant's post-trial motions, we re-affirm that choice. We do so, however, on a different legal ground than we did previously.
The choice of law issues are extremely difficult. They require us to traverse much obscure terrain. They thrust us into heavy seas which are sometimes unmapped and at others charted with conflicting signals or directions. The problem begins with the Pennsylvania caselaw. The opinions of the Pennsylvania courts -- both state and federal -- have left Pennsylvania's choice of law rules and methodology with respect to contract cases in utter disarray; indeed, the courts have used facially inconsistent legal standards without acknowledging apparently conflicting precedent. The parties in their briefs have attempted to impose their own order on these cases; but their efforts have wrought neither synthesis nor consensus.
We now commence our analysis of the choice of law problem. The road to the ultimate conclusion is a long one, which will require us to touch many bases and to engage in a detailed analysis of the policy roots of potentially applicable choice of law rules. It will also involve us in extensive discussion of the "vested rights" methodology of Restatement Conflict of Laws (Restatement I), the "most significant relationship" approach of Restatement (Second), Conflict of Laws (Restatement II), and the "interest analysis" of Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Our choice of law discussion will proceed as follows.
First, we will address the question whether the presumption against suicide as it is involved here is substantive or procedural. We consider this question first because, if the presumption is purely procedural, we may be obliged to apply Pennsylvania law as the law of the forum. See Sloniger v. Enterline, 400 Pa. 457, 162 A.2d 397 (1963); Carroll v. Godding, 155 Pa. Super. 490, 38 A.2d 720 (1944). But see discussion infra. Because, however, we find the presumption to be substantive we must face the difficult question to which the bulk of this opinion is devoted, i.e. which state's substantive law should be applied (as to the presumption of suicide). Second, and in pursuit of the answer to that question, we shall consider whether there are in fact such conflicts among Pennsylvania, New York and Delaware law on the issues of burden of proof and/or presumption against suicide in a suit to collect on an accidental death insurance policy to make choice of law a determinative issue. We shall find that there are. Third, we will briefly outline the salient points of the three competing choice of law systems which have influenced Pennsylvania choice of law jurisprudence: Restatement I, Restatement II and "interest analysis." This outline is a necessary background to our subsequent discussion. Fourth, we shall review the conflicting lines of cases on Pennsylvania choice of law both in the Pennsylvania appellate courts and in the United States Court of Appeals for the Third Circuit which bear upon the application of Griffith's interest analysis to contract cases. (The discussion shall perforce not be limited to contract cases). In the course of this discussion we shall explain the disarray and confusion in the law to which we have referred, as well as draw our own inferences as to what choice of law methodologies a Pennsylvania court in 1977 would apply to the problem before us. Fifth, we shall rescribe the parties' choice of law contentions; Sixth, we shall explicate the basis for (and the defects in) our prior bench opinion; and Seventh, we shall apply our inferences as to Pennsylvania choice of law methodology to the instant case, reaching the same choice of law result as we did at trial, namely, that New York law applies.
B. Is the Presumption Against Suicide Procedural or Substantive?
We commence our discussion with reference to the traditional choice of law rules. Under these rules questions of burden of proof and of the existence and the significance of presumptions are generally classified as matters of procedure, Restatement I, § 595, and matters of procedure are governed by the law of the forum, id., § 585. The presumption against suicide, including the New York "fair question" formulation, is susceptible to being characterized either as a matter of interpretation and construction or as a matter of procedure, burden of proof, and presumption. Although the Pennsylvania choice of law cases have necessarily engaged in classification,
they have rarely conceded aloud the importance and difficulty of that function. For a rare example, see Griffith (tort or contract).
There have been myriad decisions in which the Pennsylvania courts have classified presumptions or burden of proof as procedural rules, and have applied lex fori. See Sloniger v. Enterline, 400 Pa. 457, 162 A.2d 397 (1960). See also Rodney v. Staman, 371 Pa. 1, 89 A.2d. 313, 315-316 (1952); Carroll v. Godding, 155 Pa. Super. 490, 38 A.2d 720 (1944). Yet we do not believe these cases compel us to apply lex fori here because they do not hold that where a facially procedural rule has substantive as well as procedural aims lex fori must govern. Indeed, in Sanders v. Glenshaw Glass Co., 204 F.2d 436 (3d Cir.) cert. denied 346 U.S. 916, 98 L. Ed. 411, 74 S. Ct. 278 (1953), the Third Circuit found that Pennsylvania choice of law referred to Massachusetts tort law and thereby adopted the Massachusetts burden of proof. It may have been that the Court did so because it was so closely tied to the emerging substantive liability of a products manufacturer. At any rate, neither Sloniger nor Sanders offers us any clear guidance to the classification problem.
As we will explain in detail below (see note 66 infra) the fact alone that a state is the forum is an inadequate ground for asserting legislative jurisdiction
over events outside the forum. Yet not even the most stringent (Restatement I) territorialist would recommend either that a forum must adopt all the procedural rules of the place where the disputed events occurred or that all causes of action be strictly local, suable on only in one jurisdiction. It is simpler to allow that the forum's basic structure of decision-making be left generally untouched, while the substantive law of another jurisdiction is adopted. However, as the progeny of Erie have proved, see, e.g., Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 93 L. Ed. 1520, 69 S. Ct. 1233 (1949), Guaranty Trust v. York, 326 U.S. 99, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945), there is no simple litmus test of procedure and substance. We turn, then, for our solution to the classification problem, as we believe Pennsylvania would do, to the collective wisdom of those courts and commentators which have considered the substance-procedure classification problem in choice of law in contexts akin to the case at bar.
In Pilot Life Insurance Co. v. Boone, 236 F.2d 457, 462 (5th Cir. 1956), Judge Rives spoke for the panel in reversing a district judge's ruling that the forum (Alabama) would apply its own presumption against suicide in a suit on life insurance policy, although it would defer to lex loci contractus (South Carolina) on "interpretation."
Acknowledging that presumptions are ordinarily classified as procedural and decided under lex fori, Judge Rives classified this "presumption" as a matter of substantive contract law. He found that "the effect of this presumption against suicide is . . . inseparably connected with the substantive right to defend . . . ." 236 F.2d at 462-463. Judge Rives reasoned that
[While] many cases can be found to the effect that ordinary presumptions are procedural and governed by the lex fori, we think that it would be a misnomer to bring this presumption against suicide within that class.
In addition to the evidence of cases such as Pilot Life and Buhler, we note that both Restatement II and the Federal Rules of Evidence have reached similar results. Thus Restatement II authorizes use of forum law as to the burden of proof and the effect of presumptions "unless the primary purpose of the relevant rule of the state of the otherwise applicable law is to affect the decision of the issue . . . ." §§ 133 and 134.
The presumption against suicide appears to us to be generally designed to "affect the decision of the issue." The case at bar illustrates that point dramatically. Moreover, the presumption against suicide appears to us to "single out a relatively narrow issue from the general norm." See Comment to Restatement II recited in note 26 supra. Fed.R.Evid. 302 is to the same effect in requiring that
the effect of a presumption respecting a fact which is an element of a claim or defense as to which state law supplies the rule of decision is determined in accordance with state law.
(This means that state substantive law, under Erie, rather than federal procedural law supplies the rule). The presumption against suicide seems to us to respect a fact which supplies an element of a claim or defense.
Moreover, we find additional support in McCormick's view that burdens of proof and presumptions "are almost always allocated for the primary purpose of affecting the decision in the case . . . where the jury is in doubt. To say that these rules merely govern the conduct of the trial . . . gives far too much emphasis to form over substance." McCormick, Evidence 835 (2d Ed. 1972).
We agree with Pilot Life, finding it difficult to conceive of a "presumption" more substantive in nature in terms of affecting the substantive claim or defense than the presumption against suicide. And what Judge Rives found to be true of the presumption against suicide generally we believe to be especially true in this case. For instance, after analyzing New York's law, we will find that the New York Court of Appeals now regards the presumption against suicide as a "rule of jurisprudence . . . which describes a basic value judgment of our system," People v. Leyva, 38 N.Y.2d 160, 169, 379 N.Y.S.2d 30, 37, 341 N.E.2d 546 note 3 (1975), which may mean it is a conclusion of substantive law employed when the facts of suicide or accident are in doubt, and not a "presumption" at all. See slip op. at pp. 31-32, 87-92 infra. Therefore, New York's "presumption" may be as "substantive" as any other common law in New York. If this interpretation of the New York presumption is correct, the mere fact that Pennsylvania, whose choice of law principles we are following, does not have such a counterpart substantive rule, slip op. at p. 30 infra, does not preclude Pennsylvania from classifying the New York presumption as "substantive" for choice of law purposes. Quite the contrary, the situation would be identical to what occurs in choice of law every time a forum state has no substantive law on the issue and a sister state does have one: a "conflict" is presented and the forum must decide, under its choice of law principles, whether to apply that sister state's substantive law or not.
As the Pennsylvania Supreme Court in Griffith refused to be blinded by "[mere] technicalities of pleading," 416 Pa. at 11, 203 A.2d at 800, so we believe that Court would refuse to be bound by the label "presumption" and would recognize that its legal difference with New York is a matter of substance not of procedure.
We are supported in this view by Pilot Life, Buhler, and Weber, Restatement II, Fed.R.Evid. § 302 and McCormick. We need not go so far as to predict that Pennsylvania would actually adapt Fed.R.Evid. 302 to interstate choice of law in order to conclude, as we do, that Pennsylvania would apply New York's "fair question" doctrine to a claim under a New York insurance contract in which Pennsylvania was disinterested (see discussion slip op. at p. 74 infra), because Pennsylvania would recognize that the New York rule is one meant to create or to affect substantive rights of insurers and their insureds.
In view of our conclusion that Pennsylvania would treat the presumption as substantive we must consider which state's presumption it would apply.
C. Must We Choose? -- The Relevant Similarities and Differences Among the Laws of Pennsylvania, New York, and Delaware
The first question posed when choice of law appears to be at issue is whether a choice must really be made, i.e., whether different sovereigns whose laws may arguably be applied to the case have laws which conflict in relevant ways. See Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). If we find no conflict, then we need not choose, i.e., decide which state's law applies. This would be true by definition and regardless of what choice of law methodology is preferred.
We will first describe the issues as to which there is no conflict among New York, Pennsylvania, and Delaware law. All three jurisdictions recognize the distinction between "life insurance" and "accident/double indemnity" insurance contracts, the former covering the risk of death generally, the latter covering only the risk of accidental death. Similarly, all three jurisdictions recognize the effect of this distinction on the burdens of pleading, of going forward with the evidence, and ultimately of persuading the triers of fact. In a life insurance policy, if suicide is in issue it must be excepted by the policy and pled by the insurer. Hence the burden of proving suicide as an affirmative defense to a suit on a life insurance policy is always on the insurer. See, e.g., Watkins v. Prudential Insurance Company, 315 Pa. 497, 508, 173 A. 644, 649 (1934). In contrast, accident (or double indemnity) coverage requires the putative beneficiary to plead and prove accident as a condition precedent to the insurer's duty to pay. See, e.g., Adams v. Metropolitan Life Insurance Company, 136 Pa. Super 454, 7 A.2d 544 (1939).
It seems clear that the policy was an accident policy, giving rise to a duty by plaintiff beneficiary to plead and prove accident.
Plaintiff accepted and met her initial pleading burden: "Fifth, Josiah Marvel Scott died as a result of injuries caused directly by an accident and independently of all other causes."
At the same time she may be said to have accepted the initial allocation of the burdens of producing evidence of accident and of persuading the jury of accident by a preponderance of the evidence.
All the above was reasonably clear, uncontested, and therefore not at issue in the trial. What was sharply at issue was the effect of the "presumption against suicide" on plaintiff's burdens. It is precisely at this point that Pennsylvania and New York law diverge dramatically, raising the choice of law problem to which the bulk of this opinion is devoted.
McCormick distinguishes among four types of presumptions based on their respective effects on the burdens of proof. First, and weakest, is the "standardized inference" which aids a party in satisfying its own burden of producing evidence but does not shift that burden to the adversary.
Second is the type of presumption that shifts the burden of producing evidence (the so-called "Thayer" theory of presumptions).
Third is the type that shifts both the burden of producing evidence and the persuasion burden to the adversary (the so-called "Morgan" theory of presumptions).
Finally, the "conclusive" or "irrebuttable" presumption precludes the adversary from rebuttal.
For McCormick, neither the first nor the fourth are truly presumptions, the first because it has no greater effect than any other rational inference used in fact finding, and the fourth because it is in reality a conclusion of law.
Only the second and third are "presumptions" in a meaningful sense.
Pennsylvania's common law presumption against suicide was analyzed in Watkins v. Prudential Insurance Company, 315 Pa. 497, 173 A. 644 (1934). The court described a valid "reasonable inference against death being self-inflicted," but found there was no "sufficiently broad factual base" to "warrant its projection to the height of a presumption of law." 173 A. at 648. "It is merely a permissible consideration of the nonprobability of death by suicide." Id. The court held its effect was too slight to shift the burden of producing evidence. Id. 173 A. at 649. Of course, if it could not effect the burden of producing evidence it could not alter the persuasion burden, which remained throughout on plaintiff, and the court so held. Id. In terms of McCormick's four categories, Watkins' presumption against suicide clearly belongs to the first -- it is simply a permissible inference, with none of the procedural consequences of a true presumption. McCormick himself so evaluated Watkins. McCormick, supra, at 811 note 74.