First Nat. Bank of Chicago v. United Air Lines

• Decision Date: 09 April 1951
• Docket Number: No. 10337.,10337.
• Citation: 190 F.2d 493
• Parties: FIRST NAT. BANK OF CHICAGO v. UNITED AIR LINES.
• Court: U.S. Court of Appeals — Seventh Circuit

190 F.2d 493 (1951)

FIRST NAT. BANK OF CHICAGO v. UNITED AIR LINES.

No. 10337.

United States Court of Appeals Seventh Circuit.

July 5, 1951.

Writ of Certiorari Denied April 9, 1951.

Robert J. Burdett, John Bishop and John M. Falasz, all of Chicago, Ill., for appellant.

David Jacker, Charles M. Rush and John M. O'Connor, Jr., all of Chicago, Ill., Kirkland, Fleming, Green, Martin & Ellis, Chicago, Ill., for appellee.

Before KERNER, FINNEGAN, and LINDLEY, Circuit Judges.

Writ of Certiorari Denied April 9, 1951. See 341 U.S. 903, 71 S.Ct. 612.

PER CURIAM.

This is an appeal from a summary judgment dismissing an action brought by plaintiff against defendant to recover damages for the death of plaintiff's testate, because of his wrongful death while a passenger aboard one of defendant's airliners which crashed on October 24, 1947, at Bryce Canyon, Utah. Jurisdiction is based on diversity of citizenship and amount in controversy. Plaintiff's testate prior to his death was a resident and citizen of Illinois. Defendant is a Delaware corporation whose principal office is located at Chicago, Illinois, but it is qualified to do business in the state of Utah and has registered agents available in that state for service of process upon it. The action was brought under the Utah wrongful death statute. Section 104-3-11, U.C.A.1943.

Defendant answered the complaint and moved for summary judgment on the ground that ch. 70, § 2 of the Ill.Rev.St. operated as a bar to the maintenance of the action in Illinois. That section provides: "* * * that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place."

In answer to defendant's motion, plaintiff contended, inter alia, that the Illinois statute could not limit the jurisdiction of the federal courts, even though service of process could be had upon the defendant in Utah, and argued that to hold that it did would violate the full faith and credit clause of Art. IV, § 1 of the United States Constitution. The trial judge held the Illinois statute deprived the District Court of jurisdiction and that the full faith and credit clause of the Constitution had not been violated.

This court has already held that the provisions of the Illinois statute were binding on the federal courts in Illinois, and constituted a bar to the maintenance of an action for damages for wrongful death in an action where, as here, a right of action for such death exists under the laws of the state where the death occurred. Trust Co. of Chicago v. Pennsylvania R. Co., 7 Cir., 183 F.2d 640, and Munch v. United Air Lines, 7 Cir., 184 F.2d 630. But in those cases no contention was made that the Illinois statute violated Art. IV, § 1 of the United States Constitution.

In this court plaintiff renews its contention and cites Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 982, which it says is conclusive on the question presented on this appeal. In that case appellant brought his action in a Wisconsin state court to recover for the death of his intestate in Illinois. He based his complaint on the Illinois wrongful death statute. The trial court held appellant's action was barred in Wisconsin because the Wisconsin statute created a right of action only for a death caused in that state. The Wisconsin Supreme Court affirmed, 257 Wis. 35, 42 N.W.2d 452. The United States Supreme Court, although reaffirming the principle that "full faith and credit does not automatically compel a forum state to subordinate its own statutory policy," recognized that there is a conflict of policies which requires that one be accepted and the other rejected, and held that Wisconsin's expressed statutory policy against permitting Wisconsin courts to entertain foreign wrongful death actions was in the face of and contrary to the national policy embodied in the full faith and credit clause of the Constitution. The fact that the absolute bar to the action in the Wisconsin courts might result in the total extinguishment of the cause of action because of the practical difficulties of service of process in Illinois apparently influenced the majority to tip the scales in favor of accepting the full faith and credit policy as against the right of Wisconsin to close its courts to causes of action for wrongful death arising out of the state.

In our case no such compelling reason appears. The Illinois statute, as we have already observed, differs substantially from the Wisconsin statute in that it does not, without exception, exclude all foreign wrongful death actions but only those as to which "a right of action * * * exists under the laws of the place where such death occurred and service of process * * * may be had upon the defendant in such place." Thus, it seems clear that whereas the Wisconsin statute constituted an absolute and unconditional refusal on the part of that state to enforce in its courts the wrongful death statutes of sister states, the Illinois act recognizes the existence and enforcibility of the right of action created by such statutes and authorizes the courts of Illinois to entertain such actions, except in cases where they are capable of being prosecuted to judgment in the courts of the state which created them. Whether the Illinois statute and the policy reflected thereby — a policy which appears to be based on considerations not unlike those responsible for the application of the doctrine of forum non conveniens in the federal courts — offend against the Constitution's full faith and credit clause is the crucial question presented on this appeal. Its solution can not, it seems to us, be found in the disposition of a case in which the court observed that the statute held unconstitutional could not be regarded as "an application of the forum non conveniens doctrine" and went on to point out that the proscribed legislation might result in "a deprivation of all opportunity to enforce valid death claims created by another state," — a result which can never obtain under the terms of the Illinois statute.

In the light of the Supreme Court's repeated declaration that "the full faith and...