Duskin v. Pennsylvania-Central Airlines Corporation

• Decision Date: 14 April 1948
• Docket Number: No. 10525.,10525.
• Parties: DUSKIN v. PENNSYLVANIA-CENTRAL AIRLINES CORPORATION.
• Court: U.S. Court of Appeals — Sixth Circuit

167 F.2d 727 (1948)

DUSKIN v. PENNSYLVANIA-CENTRAL AIRLINES CORPORATION.

No. 10525.

Circuit Court of Appeals, Sixth Circuit.

April 14, 1948.

Benj. Goodman, Jr., of Memphis, Tenn. (R. G. Draper, Walter P. Armstrong, and Benj. Goodman, Jr., all of Memphis, Tenn., on the brief), for appellant.

Lowell W. Taylor, of Memphis, Tenn. (Lowell W. Taylor, of Memphis, Tenn., on the brief), for appellee.

Before ALLEN, McALLISTER, and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

Delmar D. Duskin was an aviation pilot employed by the Pennsylvania-Central Airlines, appellee herein. While acting as a co-pilot in the course of his employment, he was killed in a crash of one of appellee's planes when landing at Birmingham, Alabama, on January 6, 1946. His widow, and executrix of his estate, filed suit in the District Court for the Western District of Tennessee, claiming damages for negligence on the part of Pennsylvania-Central Airlines. The negligence with which appellee was charged was in ordering the aircraft to proceed from Knoxville to Birmingham under extremely hazardous weather conditions then prevailing, attempting to land the plane at Birmingham from too high an approach, at an excessive speed, with the plane out of control and at a point too near the end of the runway, under the direction of a pilot whose orders Duskin was bound to obey.

Appellee defended on the ground that Duskin's contract of employment with Pennsylvania-Central provided that all the rights and obligations of the parties should be governed by the laws of the state of Pennsylvania, including the Workmen's Compensation Act of that state. 77 P.S. § 1 et seq. It is maintained that, inasmuch as the Pennsylvania compensation act limits recovery for the injury and death of an employee to certain fixed amounts, and excludes an action for damages for negligence on behalf of an employee against an employer subject to that act, appellant's suit would not lie, and was properly dismissed by the district court on a motion for summary judgment.

Appellant contends that the stipulation in the contract of employment, providing that the Pennsylvania law and Pennsylvania compensation act should govern the rights and obligations of the parties, was defeated by a contradictory provision in another contract which was executed on the same day between Duskin and the company, and that the Pennsylvania compensation act is, therefore, inapplicable to the rights of the parties in this case. It is further claimed by appellant that the provision in the employment contract with respect to the Pennsylvania statute was invalid inasmuch as neither of the parties was a resident of Pennsylvania, the employment was not to be performed there, and no part of the contract was properly referable to that state. Finally, it is contended that even if the laws of Pennsylvania, including the Workmen's Compensation Act of that state, govern the rights and obligations of the parties to the contract here in question, then appellant is, in any event, entitled to maintain her suit for damages. This conclusion is rested on the theory that under Pennsylvania law, where an employee suffers injuries or death in an accident occurring outside Pennsylvania, the laws of the state in which such accident takes place — in this case, the state of Alabama — are applicable.

Appellant's claim that the contract of employment did not bar a suit for damages is based upon the fact that since two contracts were signed by the parties, the provisions of the second contract with respect to the applicability of the Pennsylvania Workmen's Compensation Act to the rights and obligations of the parties, were defeated by a contrary provision in the first contract.

When Duskin applied for employment, he signed a form contract which was also executed by appellee, in which it was stated that, in accepting employment, he agreed that the contract would be governed by the laws of Pennsylvania except so far as it related to workmen's compensation, in which latter case, the laws of the state in which Duskin might reside, would govern his workmen's compensation. As stated by counsel for appellant in their brief, it was customary for the company to have all employees sign this particular form contract when applying for employment. However, in the case of flying personnel, it was required that they also sign a contract in which it was agreed that they, as well as the company, would be governed by the laws of Pennsylvania, including the workmen's compensation law of that state. Duskin, as a pilot, therefore, signed the latter form of contract providing for the application of the Pennsylvania laws, subsequent to his signing of the other contract.

There can be no doubt that the last contract signed by Duskin superseded the former one. "A subsequent contract completely covering the same subject-matter, and made by the same parties, as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together, rescinds, supersedes, and is substituted for the earlier contract, and becomes the only agreement of the parties on the subject." Housekeeper Publishing Co. v. Swift et al., 8 Cir., 97 F. 290, 294. The provision of the agreement stipulating that their rights and obligations would be governed by the Pennsylvania Workmen's Compensation Act, must be held to be the contract of the parties.

We come, then to appellant's contention that, since no element of the contract was referable to the state of Pennsylvania, the agreement that the rights and obligations should be governed by the laws of that state, was invalid. Appellee is a Delaware corporation. Its principal office is in Washington, D. C. When the contract of employment was executed, Duskin was domiciled in Oklahoma and had a temporary residence in Tennessee. The contract of employment was executed in Washington, D. C. At the time of the accident, and Duskin's death, he was domiciled in Tennessee and had a temporary residence in New York. Duskin's widow and executrix was, at the time of bringing this suit, a resident of Tennessee. The interstate flight in which Duskin was killed originated in New York. The accident, as has been said, happened in Alabama. However, by far the greater portion of Duskin's flying service was over the state of Pennsylvania, as compared to any other state. Every flight required a junction point stop at Pittsburgh, where appellee has approximately 250 persons currently maintaining and operating one of its bases. Appellee also maintains two other bases in Pennsylvania. During his employment, Duskin flew on his regularly scheduled flights over the whole length of the state of Pennsylvania.

Where the duties of the employee were to be performed, as in this case, while flying over many states, it might not be unreasonable to conclude that the contract of employment was "referable" to the laws of the state of Pennsylvania, in view of the central junction point in Pennsylvania, the bases there maintained, the fact that all flights were over the entire length of the state, and that Duskin was obliged to make a stop at the Pittsburgh base on every flight. See Severson v. Hanford Tri-State Airlines, 8 Cir., 105 F.2d 623; Noel v. A. A. Morrison et al., 260 App.Div. 377, 22 N.Y.S. 2d 649; Walsh v. Apartment Engineering & Contracting Co., 240 App.Div. 919, 267 N.Y.S. 872; Matter of Tallman v. Colonial Air Transport, 259 N.Y. 512, 182 N.E. 159. But, in our determination of the case, as hereafter outlined, it is not necessary to decide whether any elements of the contract between Duskin and appellee were "referable" to the laws of the state of Pennsylvania, as the validity of their employment agreement, in our opinion, does not depend upon that consideration.

In support of her contention that the employment contract was invalid in providing that the laws of Pennsylvania, including the Workmen's Compensation Act of that state, governed the rights and obligations of the parties, appellant relies on Carl Hagenbeck & Great Wallace Show Co. v. Randall, 75 Ind.App. 417, 126 N.E. 501, in which it was held that no stipulation of the parties as to the law they intend to have govern their contract will be given effect if it is considered to be contrary to the public policy of the law of the forum. Other cases suggest that parties cannot agree to have the obligations of their agreement construed according to the law of a jurisdiction which has no connection with the contract; and that they may have their contractual rights governed by the laws of another state or country, "provided only that such laws have a real, and not a mere fictitious, connection with the subject-matter of the transaction"; and it is said: "It is enough to support this power to contract with reference to the laws of some particular state or country that some of the substantial elements of the contract have their situs in the state or country, the laws of which the parties intend to control their rights under the contract." Crawford v. Seattle, Renton, and S. R. Co., 86 Wash. 628, 150 P. 1155, 1157 L.R.A.1916D, 732. However, the foregoing limitations "have been most frequently applied in cases involving questions of interest, usury, and commercial paper, in instances where the parties expressed an intent in relation to the law they wish to govern the transaction in which they were engaged." Owens v. Hagenbeck-Wallace Shows Co., 58 R.I. 162, 192 A. 158, 164, 112 A.L.R. 113, Id., 58 R.I. 268, 192 A. 464. Unless such a contract be contrary to public policy, there appears no logical or practical reason why parties cannot contract to have their rights governed by the laws of a certain state or country. In Merchants' & Manufacturers' Securities Co. v. Johnson, 8 Cir., 69 F.2d 940, 944, the court observed that the only qualification placed upon the rule...