Kilberg v. Northeast Airlines, Inc.

CourtNew York Court of Appeals
Citation211 N.Y.S.2d 133,172 N.E.2d 526,9 N.Y.2d 34
Decision Date12 January 1961

Page 133

211 N.Y.S.2d 133
9 N.Y.2d 34, 172 N.E.2d 526
Jack KILBERG, as the Administrator of the Estate of Edward
J. Kilberg, Deceased, Appellant,
v.
NORTHEAST AIRLINES, INC., Respondent.
Court of Appeals of New York.
Jan, 12, 1961.

Page 134

[9 N.Y.2d 35] Lee S. Kreindler, Leonard J. Fassler and Jay R. Handwerger, New York City, for appellant.

[9 N.Y.2d 37] William J. Junkerman, James B. McQuillan and Maurice L. Noyer, New York City, for respondent.

DESMOND, Chief Judge.

Defendant is a common carrier of passengers by air. Plaintiff's intestate, a passenger on one of defendant's planes, was killed in August, 1958 when the airship crashed and burned at Nantucket, Massachusetts, in the course of a flight from a New York airport. The complaint pleads three causes of action but this appeal has to do, immediately, with the second count only. That part of the complaint has been dismissed for insufficiency by the Appellate Division which reversed Special Term's denial of defendant's motion to dismiss. Plaintiff appeals here from the dismissal. We shall have occasion farther on in this opinion to discuss the first cause [172 N.E.2d 527] of action in [9 N.Y.2d 38] which plaintiff sues under the Massachusetts wrongful death statute.

The disputed second cause of action alleges that plaintiff's intestate before boarding the plane at La Guardia Airport bought from defendant a ticket for transportation to Nantucket, that defendant by causing his death in the crash breached its contract to carry him safely and that as a result the passenger's estate and his dependent suffered substantial damages (stated as $150,000) for which his administrator sues and which include 'loss of accumulations of prospective earnings of the deceased.' There was in effect at the time of this disaster section 2 of chapter 229 of the General Statutes of Massachusetts which gave a cause of action against a common carrier for negligently causing a passenger's death but limited to not less than $2,000 or more than $15,000 the damages to be awarded therefor. Special Term, citing Dyke v. Erie Ry. Co., 45 N.Y. 113 and other authorities, held that plaintiff could sue in contract and that the law of New York, the place of contract, governed such a cause of action and not the law of Massachusetts, the place of the wrong. The Appellate Division, considering the Dyke decision inapplicable, took the position that the second cause of action, however labeled or phrased, is in tort for negligently causing death and as such is subject to the damage limitation of the Massachusetts wrongful death statute.

Page 135

Plaintiff's submission as to this second count is that it sounds in contract and so is governed for all purposes by the law of New York, the place of contract. If the alleged contract breach had caused injuries not resulting in death, a New York-governed contract suit would, we will assume, be available (Dyke v. Erie Ry. Co., 45 N.Y. 113, 117, supra; Busch v. Interborough R. T. Co., 187 N.Y. 388, 80 N.E. 197; Fish v. Delaware, L. & W. R. Co., 211 N.Y. 374, 105 N.E. 661, appeal dismissed 245 U.S. 675, 38 S.Ct. 10, 62 L.Ed. 542; Restatement, Conflict of Laws, § 337). But it is law long settled that wrongful death actions, being unknown to the common law, derive from statutes only and that the statute which governs such as action is that of the place of the wrong (Whitford v. Panama R. Co., 23 N.Y. 465; Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412). Language found in the old case of Doedt v. Wiswall, 15 How.Pr. 128, 141, affirmed 15 How.Pr. 145 cannot be used to overrule so basic a rule. It follows, as the Appellate Division correctly held here, [9 N.Y.2d 39] that plaintiff as administrator has no separate right to sue this carrier in contract for causing his intestate's death (Webber v. Herkimer & Mohawk St. R. Co., 109 N.Y. 311, 16 N.E. 358), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App.Div. 191, 225 N.Y.S. 449, and cases cited therein), and that the second cause of action had to be dismissed.

That does not mean, however, that for this alleged wrong plaintiff cannot not possibly recover more than the $15,000 maximum specified in the Massachusetts act. Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. The number of States limiting death case damages has become smaller over the years but there are still 14 of them (compare the list in Tiffany, Death by Wrongful Act (1st ed., 1893), p. xvii, with the data found in Martindale-Hubbell Law Digests, 1960 ed., Vol. IV). An air traveler from New York may in a flight of a few hours' duration pass through several of those commonwealths. His plane may meet with disaster in State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people [172 N.E.2d 528] against unfair and anachronistic treatment of the lawsuits which result from these disasters. There is available, we find, a way of accomplishing this conformably to our State's public policy and without doing violence to the accepted pattern of conflict of law rules.

Since both Massachusetts (General Statutes, ch. 229, §§ 1, 2, as in effect in Sept., 1958) and New York (Decedent Estate Law, Consol.Laws, c. 13, § 130) authorize wrongful death suits against common carriers, the only controversy is as to amount of damages recoverable. New

Page 136

York's public policy prohibiting the imposition of limits on such damages is strong, clear and old. Since the Constitution of 1894, our basic law has been (N.Y.Const., art. I, § 16; N.Y.Const. (1894), art. I, § 18) that 'The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.' Each later revision of the State Constitution has included this same prohibition[9 N.Y.2d 40] against limitations of death action damages. The reasons for its adoption are set forth in the proceedings of the 1894 Constitutional Convention (see discussion in Lincoln's Constitutional History of New York, Vol. III, pp. 57-65, and in Medinger v. Brooklyn Heights R. Co., 1896, 6 App.Div. 42, 39 N.Y.S. 613). New York's original wrongful death law (L.1847, ch. 450) passed very soon after Lord Campbell's Act became law in Great Britain, had like the latter no restriction as to damages. The Legislature later imposed such limits but the Convention which drew the 1894 Constitution rejected and forbade them. 'The argument which evidently controlled the convention in its action consisted of the claim that the arbitrary limitation was absurd and unjust, in measuring the pecuniary value of all lives, to the next of kin, by the same arbitrary standard' (Justice Hatch in Medinger opinion, supra, 6 App.Div. at page 46, 39 N.Y.S. at page 616). The absurdity and injustice have become increasingly apparent in the six decades that have followed. For our courts to be limited by this damage ceiling (at least as to our own domiciliaries) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law (see Mertz v. Mertz, 271 N.Y. 466, 471, 3 N.E.2d 597, 598, 108 A.L.R. 1120; Shannon v. Irving Trust Co., 275 N.Y. 95, 102, 103, 9 N.E.2d 792, 794). The Massachusetts cases likewise say that Massachusetts will enforce the lex loci delicti in wrongful death suits unless Massachusetts public policy forbids (see Higgins v. Central New England & W. R. Co., 155 Mass. 176, 29 N.E. 534; Jackson v. Anthony, 282 Mass. 540, 545, 547, 185 N.E. 389).

An illustration of our readiness to reject such arbitrary limitations, on public policy grounds, is Conklin v. Canadian-Colonial Airways, 266 N.Y. 244, 194 N.E. 692. In the Conklin suit plaintiff's intestate had purchased in Albany a plane ticket to Newark, New Jersey, which on its face limited to $5,000 defendant's liability for negligently causing a passenger's death. That limitation, just like the limitation here in question, was contrary to New York's public policy but valid in New Jersey which was the place of the plane disaster and of defendant's alleged wrongdoing. The public policy which allowed us to strike down the contractual limitation in Conklin's case has no less effect here. We will still require plaintiff to sue on the Massachusetts statute but we refuse on public policy grounds to enforce one of its provisions as to damages.

Page 137

[9 N.Y.2d 41] Actually, we have in Wooden v. Western N. Y. & Pa. R. Co., 126 N.Y. 10, 16-17, 26 N.E. 1050, 1051, 13 L.R.A. 458, a flat holding by our court that, in an action brought for causing a wrongful death in Pennsylvania, the New York courts would enforce our limitation of damages (as it then existed) although Pennsylvania had no such limitation. The reason, equally pertinent here, is that the 'restriction pertains to the remedy, rather than the right' (126 N.Y. [172 N.E.2d 529] at page 16, 26 N.E. at page 1051) and 'does not strictly affect the rule of damages, but rather the extent of damages; and that extent, as limited or unlimited, does not enter into any definition of the right enforced, or the cause of action permitted to be prosecuted.' Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, does not overrule Wooden, supra. Looking at the true holding of the Loucks case, supra, rather than picking out language from the opinion, we find that the court was merely deciding that the minimum set for recovery in the Massachusetts wrongful death statute did not make it a 'penal statute' unenforcible here because contrary to our public policy (see Chief Judge...

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190 practice notes
  • Pearson v. Northeast Airlines, Inc., No. 297
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1962
    ...General Laws.1 In so doing he relied on the holding of the New York Court of Appeals, in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). The jury thereafter awarded damages well in excess of the statutory maximum and judgment was entered accordingl......
  • Windbourne v. Eastern Air Lines, Inc., No. 76 C 237
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 11, 1979
    ...of this policy, such as providing guidelines to which relatives are to be the beneficiaries. Cf. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). Thus, it appears that if foreign law is to be applied at all, it would be relevant only to issues which......
  • Pearson v. Northeast Airlines, Inc., No. 297
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1962
    ...act,2 Judge McGohey ruled that he was obliged to apply a dictum of the New York Court of Appeals in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 to the effect that the Massachusetts limitation would not be enforced against a New York citizen suing in a ......
  • Rong Yao Zhou v. Jennifer Mall Rest., No. 86-809.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 4, 1987
    ...a fortuity. See Gaither, supra; Allstate, supra, 449 U.S. at 314 & n. 19, 101 S.Ct. at 641 n. 19; Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 134-135, 172 N.E.2d 526, 527 (1961); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963);......
  • Request a trial to view additional results
190 cases
  • Pearson v. Northeast Airlines, Inc., No. 297
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1962
    ...General Laws.1 In so doing he relied on the holding of the New York Court of Appeals, in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). The jury thereafter awarded damages well in excess of the statutory maximum and judgment was entered accordingl......
  • Windbourne v. Eastern Air Lines, Inc., No. 76 C 237
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 11, 1979
    ...of this policy, such as providing guidelines to which relatives are to be the beneficiaries. Cf. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). Thus, it appears that if foreign law is to be applied at all, it would be relevant only to issues which......
  • Pearson v. Northeast Airlines, Inc., No. 297
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1962
    ...act,2 Judge McGohey ruled that he was obliged to apply a dictum of the New York Court of Appeals in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 to the effect that the Massachusetts limitation would not be enforced against a New York citizen suing in a ......
  • Rong Yao Zhou v. Jennifer Mall Rest., No. 86-809.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 4, 1987
    ...a fortuity. See Gaither, supra; Allstate, supra, 449 U.S. at 314 & n. 19, 101 S.Ct. at 641 n. 19; Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 134-135, 172 N.E.2d 526, 527 (1961); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963);......
  • Request a trial to view additional results

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