Hopkins v. Lockheed Aircraft Corporation, 22518.

• Decision Date: 24 March 1966
• Docket Number: No. 22518.,22518.
• Citation: 358 F.2d 347
• Parties: Mary S. HOPKINS, Individually and as Executrix of the Estate of George D. Hopkins, Deceased, Appellant, v. LOCKHEED AIRCRAFT CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

358 F.2d 347 (1966)

Mary S. HOPKINS, Individually and as Executrix of the Estate of George D. Hopkins, Deceased, Appellant, v. LOCKHEED AIRCRAFT CORPORATION, Appellee.

No. 22518.

United States Court of Appeals Fifth Circuit.

March 24, 1966.

James A. Franklin, Jr., Fort Myers, Fla., for appellant.

David H. McClain, T. Paine Kelly, Jr., and MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., for appellee.

Before JONES and BROWN, Circuit Judges, and BREWSTER, District Judge.

PER CURIAM:

The question presented here is whether Florida will apply the monetary limitation of the Illinois death statute in an action brought in Florida against the manufacturer of the airplane to recover for the death of a Florida citizen occurring in Illinois on the return leg of a round trip flight under a ticket purchased and issued in Florida. We are of the view that the question should be certified to the Supreme Court of Florida by the Certificate attached. Fla.Stat. § 25.031, F.S.A. (1959); Fla.Appellate Rules 4.61, 31 F.S. A.; see Clay v. Sun Ins. Office, Ltd., 1960, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed. 2d 1170, on certification upon remand, Fla., 1961, 133 So.2d 735, on receipt of answers to certification, 5 Cir., 1963, 319 F.2d 505, rev'd, 1964, 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229; Green v. American Tobacco Co., 5 Cir., 1962, 304 F.2d 70, on rehearing, 304 F.2d 85, on certification, Fla., 1963, 154 So.2d 169, on receipt of answers to certification, 5 Cir., 1963, 325 F.2d 673, cert. denied, 1964, 377 U.S. 943, 84 S.Ct. 1349, 1351, 12 L.Ed.2d 306.

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO § 25.031, FLORIDA STATUTES 1959, AND RULE 4.61, FLORIDA APPELLATE RULES.

To the Supreme Court of Florida and the Honorable Justices thereof:

It appears to the United States Court of Appeals for the Fifth Circuit that there are involved in the above-styled case in said Court questions or propositions of the laws of the State of Florida which are determinative of the said cause, and that there are no clear, controlling precedents in the decisions of the Supreme Court of the State of Florida. The said United States Court of Appeals for the Fifth Circuit therefore certifies such questions or propositions of the laws of the State of Florida to the Supreme Court of Florida for instructions concerning such questions or propositions of State law, pursuant to § 25.031, Florida Statutes 1959, F.S.A., and Rule 4.61, Florida Appellate Rules, as follows:

(1) Style of the Case

The style of the case in which this certificate is made is as follows: MARY S. HOPKINS, individually and as Executrix of the Estate of George D. Hopkins, deceased, appellant versus LOCKHEED AIRCRAFT CORPORATION, appellee, case No. 22518, United States Court of Appeals for the Fifth Circuit, said case being an appeal from the United States District Court for the Middle District of Florida, Fort Myers Division.

(2) Statement of Facts

Plaintiff (appellant), a Florida citizen, prior to September 17, 1961, resided in Florida with the Deceased as man and wife. On September 17, 1961, the Deceased was a fare-paying passenger on an aircraft designed and manufactured by Lockheed (appellee), a California corporation doing business in Florida, and operated by Northwest Airlines, Inc., which crashed in Illinois, killing all persons aboard. The aircraft was on a regularly scheduled flight from Milwaukee, Wisconsin, to Tampa, Florida, via Chicago, Illinois. Deceased boarded the doomed aircraft in Chicago, after a stopover of several days, on the last leg of a round trip ticket he had purchased from Northwest in Tampa.

After his death, probate was commenced in Lee County, Florida, and Plaintiff was appointed as Executrix of the estate of her deceased husband. Administration of this estate is still pending.

Thereafter, Plaintiff filed separate actions against Northwest and Lockheed. The basis of the allegations in the suit against Northwest was negligent maintenance and operation of the aircraft, and the basis of the suit against Lockheed, the subject of this appeal, is negligent design and manufacture resulting in a breach of implied warranty of fitness. The suit against Northwest was terminated by payment of $32,500 to Plaintiff in consideration for a covenant not to sue.

The Illinois Wrongful Death Act, Ill. Ann.Stat. ch. 70, §§ 1-2 (Smith-Hurd), provides an action for damages for wrongful death for accidents within the State of Illinois and contains a limitation of recoverable damages in the amount of $30,000.

The Florida Wrongful Death Act, Fla. Stat.Ann. § 768.01 et seq., contains no limitation on the damages recoverable for wrongful death.

At the pre-trial conference, argument was held as to the governing law, and the District Judge orally ruled that Illinois law would apply except as to the limitation on damages which was contrary to the public policy of the State of Florida. Thereafter, the District Court entered its Pre-Trial Conference Order, and in Paragraph 4 thereof rescinded its former ruling and determined that the cause would be governed exclusively by Illinois law. (R. 13). On this premise the Motion for Summary Judgment filed by Defendant was properly granted at that stage of the...