Kline v. Wheels by Kinney, Inc.

• Citation: 464 F.2d 184
• Decision Date: 06 July 1972
• Docket Number: No. 71-2020.,71-2020.
• Parties: Paul E. KLINE, Appellee, v. WHEELS BY KINNEY, INC., and Kinney National Services, Inc., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

464 F.2d 184 (1972)

Paul E. KLINE, Appellee, v. WHEELS BY KINNEY, INC., and Kinney National Services, Inc., Appellants.

No. 71-2020.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1972.

Decided July 6, 1972.

John W. Winston, Norfolk, Va. (Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellants.

Larry M. Topping, Newport News, Va. (Hall, Fox & Topping, Newport News, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit Judges.

FIELD, Circuit Judge:

Upon the appeal in this diversity case, appellants, Kinney,¹ urge that the District Judge erred in his choice of law.

The facts are not in dispute. On August 4, 1968, Miss McCorkle, a citizen and resident of New York rented an automobile from Kinney for a period of one month. The lease agreement was executed and the vehicle which was licensed and registered in New York was delivered to McCorkle in that state. Miss McCorkle drove from New York to Nags Head, North Carolina, on a vacation trip, and on August 25, 1968, while driving the vehicle in the vicinity of Nags Head, she struck the plaintiff, Kline, inflicting serious and permanent injuries.

Kline, a citizen and resident of Virginia, instituted this action for personal injuries against McCorkle and Kinney. The action was originally filed in the Eastern District of North Carolina but the case was transferred to the Eastern District of Virginia pursuant to 28 U.S. C.A. § 1404(a). The complaint charged negligence on the part of McCorkle and further alleged that she was operating the vehicle with Kinney's permission and as its agent or employee. Kinney admitted ownership of the automobile as well as the permissive use thereof by Miss McCorkle, but denied that she was its agent or employee or that it exercised any control over the vehicle while she was in possession. The evidence was uncontradicted that Miss McCorkle was neither the agent nor an employee of Kinney, and the District Court so found. However, the case was submitted to the jury as to all of the defendants based upon the negligence of Miss McCorkle and a verdict was rendered against both her and Kinney. Thereafter, Kinney moved for judgment n. o. v., which motion was denied and this appeal followed.

Kinney's motion to set aside the verdict presented the District Court with a question of conflict of laws, and the action having been originally instituted in North Carolina, the transferee court in Virginia was required to apply the law of North Carolina including its rule on the choice of law. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Klaxon Company v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In tort actions North Carolina has long followed the rule that the controlling law is the lex loci delicti. Petrea v. Ryder Tank Lines, Inc., 264 N.C. 230, 141 S.E. 2d 278 (1965); Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288 (1963). Kinney, of course, contends that since the accident occurred in North Carolina, these cases require the application of North Carolina law. Under North Carolina law the non-present owner of a vehicle incurs liability under only the family purpose doctrine,² negligent entrustment³ or respondeat superior;⁴ and since permissive user alone will not suffice, upon the facts of this case Kline would be precluded from recovery against Kinney.

The District Judge recognized these limitations with respect to liability under the law of North Carolina, but concluded that under the circumstances of this case the law of the state of New York should control by reason of the provisions of the New York Vehicle and Traffic Law, McKinney's Consol.Laws, c. 71, § 388(1) (McKinney's Consol.Laws, c. 71, 1970), which states:

"Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner."

While there was no specific reference to this statute in the leasing agreement between Kinney and McCorkle, the District Court determined that since the agreement was made in the state of New York the statute imposing absolute vicarious liability became a part of the contract. Following this line of reasoning the Court concluded that Kline's action against Kinney was contractual in nature and that under the law of North Carolina the law of the place of the contract should control. Roomy v. Allstate Insurance Company, 256 N.C. 318, 123 S.E.2d 817 (1962). Accordingly, the District Court held that the New York statute should apply to this case and thereunder Kinney was liable for the negligent conduct of the lessee, McCorkle.

In reaching this decision the District Judge relied upon the case of Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 143 A. 163 (1928); 61 A.L.R. 846. In that case Daniels had rented an automobile to one Sack in Connecticut who thereafter operated the vehicle in a negligent manner in the state of Massachusetts and injured the plaintiff, Levy. Public Acts of Connecticut, 1925, ch. 195, § 21, provides: "Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased." Although the complaint alleged the tortious operation of the automobile, the Connecticut court held that the injured plaintiff had a contractual right of action against the defendant renting company upon the theory that the hiring contract was for the benefit of any member of the general public who might be damaged by the operation of the leased vehicle. We are of the opinion, however, that in the disposition of the present case the District Court's reliance upon Levy was inappropriate. By its terms the Connecticut statute was specifically directed toward persons renting or leasing motor vehicles and, as such, could properly be considered a part of any leasing agreement executed in that state. On the other hand the New York statute is not focused on such leasing arrangements. By its terms it is designed to impose liability upon the owner of any vehicle for injuries resulting from the negligent conduct of a permissive user. It therefore becomes an integral part of the New York law of torts independent of any contractural relationship.

It is, of course, reasonably certain that if the present case were presented to a New York court, that forum would apply the law of New York. It was so applied in Johnson v. The Hertz Corp., 315 F.Supp. 302 (D.C.N.Y.1970), where the court extended the benefit of the New York statute to the plaintiff residents of Massachusetts in an action against a corporate resident of New York growing out of an accident which occurred in New Jersey. The District Court observed that in the area of conflict of laws the courts of New York have adopted the "grouping of contacts theory" in an attempt to ascertain and apply the law of the state with the predominant interest in the litigation and that the statute in question expressed a policy of New York which out-weighed any interest of either Massachusetts or New Jersey.⁵

With no North Carolina case directly in point, our judicial chore is to "determine the rule that the North Carolina Supreme Court would probably follow, not fashion a rule which we, as an independent federal court, might consider best." Lowe's North Wilkesboro Hdwre. v. Fidelity Mut. Life Ins. Co., 319 F.2d 469 (4 Cir. 1963). Since the tortious conduct and resultant injury occurred in North Carolina, we think unquestionably a court of that state would apply North Carolina law. The North Carolina courts have adhered steadfastly to the principle of lex loci delicti, although urged to adopt a more flexible rule. In Shaw v. Lee, supra, the North Carolina court applied the restrictive law of Virginia and denied recovery in a case involving interspousal liability despite the fact that the plaintiff was a resident of North Carolina and would have been vested with a cause of action under the statutory law of that state. After reviewing its line of decisions the court stated (129 S.E.2d 293):

"To depart from the principles on which those cases were based will open the door to a multitude of claims founded on the assertion that the law of the lex domicilii is more equitable and just than the lex loci—justifying the application of our substantive law instead of the lex loci. We do not deem it wise to voyage into such an uncharted sea, leaving behind well established conflict of laws rules."

Similarly, in Petrea v. Ryder Tank Lines, Inc., supra, the court was urged to adopt the "grouping of contacts theory," but elected to stand firmly on its position as stated in the Shaw case.

Under the circumstances we are of the opinion that the District Court improperly applied the law of New York to this case, and erred in its denial of Kinney's motion for judgment n. o. v.⁶

Reversed

BUTZNER, Circuit Judge (dissenting):

The tort aspects of this controversy can be recounted quite briefly. McCorkle, a New York resident, while intoxicated ran down Kline, a Virginian, at the edge of a road near Nags Head, North Carolina. Applying North Carolina tort law, the jury found that McCorkle was negligent and awarded Kline $52,000 for his severe injuries. Unquestionably, the tort issues were properly decided under North Carolina law, the place where the accident occurred, Petrea v. Ryder Tank Lines, Inc., 264 N.C. 230, 141 S.E.2d 278 (1965); Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288 (1963), and no appeal of them has been noted.

Kinney, the company that rented a car to McCorkle, contends that under North Carolina tort law it is not liable for McCorkle's negligence. The flaw in this contention is that Kinney's relationship...