Branyan v. Alpena Flying Service, Inc.

• Decision Date: 13 October 1975
• Docket Number: Docket Nos. 19846,23125
• Citation: 236 N.W.2d 739,65 Mich.App. 1
• Parties: Janice S. BRANYAN, Executrix of the Estate of Charles E. Branyan, Deceased, Plaintiff-Appellant, and Employers Commercial Union Insurance Company, Intervening Plaintiff, v. ALPENA FLYING SERVICE, INC., a Michigan Corporation, Defendant-Appellee. Charleen F. BEEKMAN, Executrix of the Estate of Myron Beekman, Deceased, Plaintiff-Appellant, v. ALPENA FLYING SERVICE, INC., a Michigan Corporation, Defendant-Appellee. 65 Mich.App. 1, 236 N.W.2d 739
• Court: Court of Appeal of Michigan — District of US

Page 739

236 N.W.2d 739

Janice S. BRANYAN, Executrix of the Estate of Charles E.

Branyan, Deceased, Plaintiff-Appellant, and Employers Commercial Union Insurance Company, Intervening Plaintiff, v. ALPENA FLYING SERVICE, INC., a Michigan Corporation,

Defendant-Appellee.

Charleen F. BEEKMAN, Executrix of the Estate of Myron

Beekman, Deceased, Plaintiff-Appellant, v. ALPENA FLYING SERVICE, INC., a Michigan Corporation,

Defendant-Appellee.

Docket Nos. 19846, 23125.

65 Mich.App. 1, 236 N.W.2d 739

Court of Appeals of Michigan.

Oct. 13, 1975.

Released for Publication Jan. 5, 1976.

[65 MICHAPP 2] Moll, Desenberg, Purdy, Glover & Bayer by Jon P. Desenberg, Detroit, for Branyan.

Hartman, Beier, Howlett, McConnell & Googasian by Kenneth B. McConnell, Bloomfield Hills, for Beekman.

Fergus Markle, Detroit, for Employers Commercial Union.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy by John M. Heaphy, Detroit, for defendant-appellee.

[65 MICHAPP 3] Before T. M. BURNS, P.J., and QUINN and KELLY, JJ.

T. M. BURNS, Presiding Judge.

This is what is commonly known as a conflict-of-laws case. Both plaintiffs were granted leave to appeal and the cases were consolidated by order of this Court on March 26, 1975. For purposes of this appeal, ¹ we shall set forth the following 'Concise Statement of Facts and Proceedings', certified by the trial court and stipulated to by counsel in the Branyan case as the statement of facts which governs this appeal:

'On August 11, 1970, Alpena Flying Service, Inc., a Michigan corporation, and The Detroit Edison Company, a corporation organized and existing concurrently under the laws of Michigan and New York with its principal office and facilities in Michigan, entered into a contract in Michigan under which Alpena was to provide air passenger service to Edison.

'Alpena was in the business of providing air taxi-charter service primarily to Michigan based companies (e.g., Michigan Bell Telephone, Chrysler Corporation, The Detroit News) and Michigan citizens (e.g., executives of said companies).

Alpena flights routinely originated and returned or terminated in Michigan with Michigan residents making up the principal passenger manifest.

'On October 16, 1971, pursuant to said contract, Alpena left Detroit City Airport on a flight to Hot Springs, Virginia. Aboard said plane were four passengers, including plaintiff's decedent who was employed by an Edison subsidiary in Michigan. The passengers were being flown to Virginia for a meeting with Walker Cisler, Chairman of the Board of Detroit Edison; and the flight was intended to return to Detroit.

'The plane crashed in Hot Springs, while attempting [65 MICHAPP 4] to land, killing all passengers and crew. The crew consisted of a pilot and co-pilot, both Michigan citizens. The pilot is survived by a Michigan widow and children. The co-pilot's parents and next of kin are Michigan citizens.

'The four passengers were:

'Charles E. Branyan, a Michigan citizen survived by a Michigan widow and two Michigan children.

'Myron Beekman, a Michigan citizen who left a widow and four children, including two minors, all of whom with the exception of the eldest child are Michigan citizens.

'Kozo Odajima, who had resided in Michigan for more than a year immediately preceding his death, with his wife and minor child.

'Yoshimichi Hori, who was aboard the plane by virtue of business he had been and was conducting with Michigan corporations.

'The accident has resulted in three wrongful death actions in Michigan courts; the instant case, one by the Estate of Hori in Wayne County Circuit Court and one by the Estate of Beekman in Oakland County Circuit Court. Each suit contains counts in negligence and breach of contract.

'At the time of his death, Charles E. Branyan was 46 years old and had annual wage and fringe benefits in excess of $27,000. Myron Beekman was 50 years old at the time of the accident and had annual wages and fringes of approximately $40,000. The Ad Damnum clauses with respect to each count in all suits are in excess of $75,000.

'Virginia statutes Annotated, Sec. 8--363 (8--633) limits the amount of damages that may be awarded in a wrongful death action to: out-of-pocket expenses for hospital, medical and ambulance service expenses; $500 for funeral expenses; $25,000 for sorrow and mental anguish; and $50,000 for loss of probable earnings, care, attention and society. The Michigan wrongful death statute, MCLA 600.2922 under which this action is brought, contains no limitations on the amount of damages that may be awarded.'

[65 MICHAPP 5] In each case, the defendant's motion to reduce the plaintiffs' Ad damnum clauses to $75,000 was granted, each trial court holding that the law of Virginia, the place where the accident occurred, controlled the question of limitation of damages.

There is only one question before this Court, namely, whether the limitation on the amount of plaintiffs' damages should be determined in accordance with Michigan law or Virginia law.

This Court has never been called upon to decide whether to apply another state's limitation of the amount of recovery in a wrongful death action brought in Michigan in a case where the occurrence causing death was an airplane crash which took place in the other state. However, that Michigan had adhered to the rule of Lex loci delicti cannot be denied. Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969). Defendant argues that as an intermediate appellate court, we may neither adopt a conflict-of-laws standard different from that traditionally followed in Michigan nor entertain an invitation to overrule Supreme Court precedent. However, we need not decide whether Abendschein should be overruled in deciding the question before us since the rule enunciated in Abendschein does not apply to this case. The Abendschein Court expressly excluded the Lex loci delicti rule from cases involving airplane accidents when it stated at 519, 170 N.W.2d 140:

'Bearing in constant mind that This case and its issue deals only with actions at law for damages arising out of motorcar (not airplane) accidents * * *.' (Emphasis added.)

Having explained why we cannot, on the authority of Abendschein v. Farrell, supra, declare that the plaintiffs are limited in the amount of damages [65 MICHAPP 6] they may recover, we now turn to a disposition of this case which we think both valid and within our authority.

While the general rule is that questions as to the measure, extent, or amount of damages recoverable in a wrongful death action are to be determined by the law of the place where the wrong causing the death occurred, a number of decisions support the view that under certain circumstances the law of the state of the forum may govern these questions, although the wrong causing death occurred in another state. See generally 92 A.L.R.2d 1180, 1193; see also Moats v. Metropolitan Bank of Lima, 40 Ohio St.2d 47, 319 N.E.2d 603 (1974).

In Reich v. Purcell, 67 Cal.2d 551, 555, 63 Cal.Rptr. 31, 34, 432 P.2d 727, 730 (1967), the California Supreme Court rejected the Lex loci delicti rule in favor of the more modern approach of most significant relationship. Speaking for the Court, Chief Justice Traynor stated:

'Ease of determining applicable law and uniformity of rules of decision, however, must be subordinated to the objective of proper choice of law in conflict cases, i.e., to determine the law that most appropriately applies to the issue involved. ² Moreover, as jurisdiction after jurisdiction has departed from the law of the place of the wrong as the controlling law in tort cases, regardless of the issue involved, that law no longer affords even a semblance of the general application that was once thought to be its great virtue. We conclude that the law of the place of the wrong is not necessarily [65 MICHAPP 7] the applicable law for all tort actions brought in the courts of this state.' (Citations omitted.)

Speaking to the question of damages, Chief Justice Traynor noted:

'Limitations of damages * * * have little or nothing to do with conduct. They are concerned not with how people should behave but with how survivors should be compensated. The state of the place of the wrong has little or no interest in such compensation when none of the parties reside there.' 67 Cal.2d 551, 556, 63 Cal.Rptr. 31, 34, 35, 432 P.2d 727, 730--731.

See also, Ingersoll v. Klein, 106 Ill.App.2d 330, 245 N.E.2d 288 (1969); Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410 (1965); Tramontana v. SA Empresa De Viacao Aerea Rio Grandense, 121 U.S.App.D.C. 338, 350 F.2d 468 (1965); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 797 (1964).

After carefully reviewing and considering the leading authorities, we...