Brickner v. Gooden

• Decision Date: 16 July 1974
• Docket Number: No. 47217,47217
• Citation: 1974 OK 91,525 P.2d 632
• Parties: Theodore J. BRICKNER, Jr., M.D., Petitioner, v. David S. GOODEN et al., Respondents.
• Court: Oklahoma Supreme Court

Page 632

525 P.2d 632

Theodore J. BRICKNER, Jr., M.D., Petitioner, v. David S. GOODEN et al., Respondents.

No. 47217.

Supreme Court of Oklahoma.

July 16, 1974.

Green, Feldman & Hall by Wm. S. Hall, Tulsa, for petitioner.

Young & Peaster by Richard L. Peaster, Tulsa, for respondents.

IRWIN, Justice:

Respondents, in three separate actions, sought to recover damages against the petitioner for personal injuries resulting from an airplane crash near Mexico City, Republic of Mexico. Respondents alleged they were passengers in the airplane which was owned, operated, under the exclusive control of, and being flown by petitioner, and that the crash followed from the negligence of the petitioner in the operation and control of the airplane. None of the negligence alleged occurred elsewhere than in the Republic of Mexico.

Certain pleadings filed in the trial court placed in issue whether the rights and liabilities of the parties should be determined by the laws of Oklahoma or the laws of Mexico. The trial court held that the parties' rights and liabilities would be determined under Oklahoma Laws because Oklahoma had the most significant relationship with the occurrence and with the parties.

The trial court sustained petitioner's motion to certify its Interlocutory Order for review by this Court. The question certified is:

'In tort actions, is the law of the place wherein the cause of action arose controlling on the substantive rights of the parties, or does the local law of the state which has the most significant relationship with the occurrence and with the parties determine the substantive rights and liabilities of the parties?'

Petitioner contends that the doctrine of 'lex loci delicti' applies, i.e., that the law of the place of the injury or where the cause of action arose, determines the substantive rights and liabilities of the parties, and the substantive law of the Republic of Mexico is applicable in the case at bar.

Respondents contend that the substantive law of Oklahoma is applicable, i.e., the substantive law of the place having the most significant relationship with the occurrence and with the parties. In this connection, respondents point out that all the parties at all times material to this action were and still are residents of Oklahoma; the aircraft was hangared in Oklahoma where it was registered; and the trip originated and was to end in Oklahoma.

In Cherokee Laboratories, Inc. v. Rogers (1965), Okl., 398 P.2d 520, we held:

'Absent evidence demonstrating occurrence of negligence in Oklahoma sufficient to amount to or substantially contributing to proximate cause of accident causing plaintiff's decedent's death, as result of an accident in the State of Missouri, the amount of plaintiff's recovery in action in Oklahoma for wrongful death of husband under Missouri statutes creating cause of action for wrongful death and authorizing recovery of not to exceed $25,000.00 therefor, is limited by the amount fixed in such Missouri statutes.'

Subsequent to the promulgation of the Cherokee case (398 P.2d 520) in 1965, this Court decided Richey v. Cherokee Laboratories, Inc., and Wood v. Cherokee Laboratories, Inc., Okl., 515 P.2d 1377, in 1973. All three cases arose out of the same occurrence and all involved actions for wrongful death. We held the rule of law announced in the 1965 case (398 P.2d 520), governed the two cases decided in 1973 (515 P.2d 1377). The accident here involved occurred in 1971.

Four Justices of our Court in 515 P.2d 1377, in a special concurring opinion, were of the same view as the majority, that since the same occurrence and accident formed the basis for each of the three Cherokee cases, a different standard of recovery should not be allowed in the three cases. However, they expressed their views that we should overrule prospectively the application of the doctrine of 'lex loci delicti' in all multi-state tort actions and apply the local law of the state which had the most significant relationship with the occurrence and the parties in determining their rights and liabilities. The principles advocated in the special concurring opinion, in substance, are set forth in the Restatement (second) Conflicts of Law, § 145, (proposed in the 1968 Official Draft), which provides:

'(1) The rights and liabilities of the parties with respect to an issue in tort are determinated by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

'(2) Contacts to be taken into account in applying the principles of § 60 to determine the law applicable to an issue include:

'(a) the place where the injury occurred,

'(b) the place where the conduct causing the injury occurred,

'(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

'(d) the place where the relationship, if any between the parties is centered.

'These contacts are to be evaluated according to their relative importance with respect to the particular issue.'

The choice of law principles set forth in § 6, supra, provide that:

'(1) a court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

"* * *."

Considering the circumstances presented, in connection with the change in decisional law in other jurisdictions hereinafter discussed, and the special concurring opinion of four Justices in 515 P.2d 1377, in 1973, we find it only appropriate that we should re-examine whether this Court should continue to follow the doctrine of 'lex loci delicti' regardless of the particular issues involved.

When this Court promulgated the Cherokee case in 1965, the general rule as to measure, extent, or amount of damages recoverable in a wrongful death action was to be determined by the law of the place where the wrong causing the death occurred. This rule was generally founded upon the view that the measure, extent or amount of damages for wrongful death pertained to a matter of substance of the right to recover and should be governed by the law of the place where the cause of action arose. 92 A.L.R.2d 1180 (1963). In the A.L.R. Annotation, a footnote stated that the above rule is supported by the Restatement, Conflicts of Law, § 391; and also § 142, of the same Restatement which provides, 'The measure of damages for a tort is determined by the law of the place of wrong.'

Dissatisfaction with the mechanical application of the rule that the substantive rights of the parties to a tort action are automatically fixed by, and inexorably governed by the law of the place where the wrong occurred, has in recent years led a number of courts to reject the rule of the place of the wrong (lex loci delicti) completely. 29 A.L.R.3d 603 (1970). Therein, it is stated at page 623, that: 'In a number of recent multi-state tort actions, the courts have discarded the rule of the place of the wrong as the sole determinant of the law governing the parties substantive rights, and applied a rule that requires of the forum court analysis of all facts and factors involved to determine what law is most appropriate under the particular analytical theory or process employed to govern the parties' rights and liabilities with respect to any issue in tort.'

Several cases cited and discussed in 92 A.L.R.2d 1180 and 29 A.L.R.3d 603 and its 1973 Supplement indicate that some states have not followed the modern trend, but have retained their old rule of lex loci delecti under a theory either that no compelling reason was shown for the change, or uncertainty in determining the applicable law would result, or the 'dominant contacts' principle could not be uniformly applied.

The Supreme Court of California in Riech v. Purcell (1967), 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727, in discussing this possible uncertainty and lock of uniformity, said:

'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 (see Leflar, Choice--Influencing Considerations In Conflicts of Law (1966) 41 N.Y.U.L.Rev. 267, 279--282). 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 (authorities cited) 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 the applicable law for all tort actions brought in the courts of this state. (Citing decisions), and other cases to the contrary are overruled.'

The Reich case involved actions to recover for the wrongful deaths of Ohio residents killed in Missouri after a collision with an automobile owned and operated by a California resident. The primary conflicts of law issue was whether...