Kuchinic v. McCrory
| Decision Date | 27 September 1966 |
| Parties | Ann C. KUCHINIC, Appellant, v. Leo A. McCRORY, Administrator of the Estate of Henry P. McCrory, Jr., Deceased. Bernice O'HARA, Administratrix of the Estate of John O'Hara, Deceased, Appellant, v. Leo A. McCRORY, Administrator of the Estate of Henry P. McCrory, Jr., Deceased. Mary Ellen AIRHART, Admx. of the Estate of George Patrick Airhart, Jr., Deceased, and Mary Ellen Airhart, in Her Own Right, Appellant, v. Leo A. McCRORY, Admr. of the Estate of Henry P. McCrory, Jr., Deceased. |
| Court | Pennsylvania Supreme Court |
John M. Feeney, McArdle, Harrington, Feeney & McLaughlin, Pittsburgh, for appellants O'Hara and Airhart.
William C. Walker, Dickie, McCamey & Chilcote, Pittsburgh, for appellee.
Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
This appeal involves three consolidated cases arising out of an airplane accident in the area of Brunswick, Georgia, on December 8, 1957, in which the pilot and three passengers were killed. At the time of the accident the plane was enroute to Pittsburgh from Miami, Florida, where the four occupants, all personal friends and Pennsylvania residents, had gone to attend a football game. Actions in trespass were instituted in the Court of Common Pleas of Allegheny County on behalf of the deceased passengers against the estate of the pilot. The jury returned a verdict in favor of the defendant-appellee; the trial court denied appellants' motions for a new trial and this appeal followed.
In Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964), this Court abandoned the inflexible rule that the law of the place of the tort, the Lex loci delecti, was invariably controlling. 1 Since the present Appellants now contend that in light of the intervening Griffith decision the law of Pennsylvania, not Georgia, should have determined the legal effect of the host-guest relationship. Since Pennsylvania does not have a guest statute, appellants argue that recovery in these cases could have been sustained upon a finding of simple negligence and that, therefore, the trial judge erred in instructing the jury that they must find gross negligence in order to return a verdict in favor of the appellants.
cases were tried prior to our decision in Griffith, both the parties and the lower court assumed that the law of Georgia, the Lex loci delecti, was determinative. Inasmuch as Georgia law requires a guest to prove gross negligence before recovering damages from his host, 2 appellants alleged and sought to establish such negligence. Their theory was that it constituted gross negligence for the defendant-pilot, who lacked instrument training, to fly into the adverse weather conditions which prevailed over the area of the crash. They alleged, as a result of the poor visibility, the pilot maneuvered the plane into such an attitude that the wing became overstressed and broke off, causing the plane [422 Pa. 623] to crash. In its verdict, the jury specifically found that the appellee was not guilty of gross negligence.
We agree with appellants that the policy and interest analysis spelled out in Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964) requires that Pennsylvania law be applied to these facts. See also McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677 (1966); Elston v. Industrial Lift Truck Co., 420 Pa. 97, 216 A.2d 318 (1966). Factually this case is almost identical with the problem presented in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963), where the New York Court of Appeals, disregarding the strict application of the Lex loci delecti, held the guest statute of Ontario, inapplicable to an Ontario accident involving New York residents. The only distinction between Babcock and the present case is that the statue involved in Babcock denied a guest recovery under all circumstances, whereas the Georgia statute permits recovery in the event of gross negligence. However, we regard this as a distinction without a difference. 3
Indeed when properly analyzed the present cases are a prime example of what has been characterized as a 'false conflict', for under no stretch of the imagination can Georgia be viewed as a concerned jurisdiction. 4 In passing its statute, Georgia undoubtedly intended either to protect insurance companies from collusive suits or to The appellee further contends that appellants are precluded from challenging the court's charge because they agreed to the application of Georgia law below. This argument does not question the retroactive application of Griffith, for appellee concedes that if appellants had excepted to the trial judge's utilization of the Georgia standard in his charge and if the Griffith analysis would lead to an application of Pennsylvania law, appellants would now be entitled to a new trial. The sole basis for appellee's argument is that it would give appellants the windfall of an extra day in court and impose on him undue expense and delay in relitigating these cases.
prevent ungrateful guests from suing their hosts; it most assuredly did not mean to encourage the exercise of less than due care by those who use its highways or airways. Georgia's only contact with the present case, as the situs of the accident, is wholly fortuitous, whereas Pennsylvania, as the place where the host-guest relationship was established, where it was intended to terminate, and as the domicile of all four of the aircraft's occupants, is the state with the most significant interest in defining the legal consequences attaching to the relationship here involved. See Griffith v. United Airlines, supra.
While there are no cases in Pennsylvania dealing with the effect of a change in decisional law pending appeal, 5 there is authority in a closely related field. Unless vested rights are affected, a court's interpretation of a statute is considered to have been the law from its enactment date, despite contrary intervening holdings. Buradus v. General Cement Prods. Co., 159 Pa.Super. 501, 48 A.2d 883 (1946), aff'd 356 Pa. 349, 52 A.2d 205 (1947). In such circumstances, the latest interpretation is applicable to a case whose appeal has not yet been decided. 6
Moreover, there are occasions when a party is given the benefit of a change in the law in order to prevent an injustice, especially when, as here, the other party could not have changed his position in reliance on the initial decision. Thus in Reamer's Estate, 331 Pa. 117, 200 A. 35, 119 A.L.R. 589 (1938), we were willing to correct a decision in a previous appeal of the same case which had been made palpably erroneous by an intervening decision despite the law of the case doctrine. 7 Recently in Brubaker v. Reading Eagle Co., 422 Pa. 63, 221 A.2d 190 (1966), we ordered a new trial in order to permit the plaintiff to bring his allegations within the actual malice requirement of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Although in Brubaker, the plaintiff was deprived of his original verdict by the change in law, and it thus is the converse of the present problem, it is illustrative of our goal of assuring each litigant a fair adjudication on the merits.
The effective administration of justice ordinarily requires that a litigant who fails to raise at trial an available objection waives it on appeal. This Court is reluctant to permit a party to allege error in the jury charge for the first time on appeal, because it would be manifestly unfair to permit a party to take his chances on a verdict, and then complain if he loses, when an earlier objection would have afforded the trial court an opportunity to correct the error. Lobalzo v. Varoli, 422 Pa. 5, 220 A.2d 634 (1966); Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960). The present case, of course, is one where an earlier objection would have been to no avail, because the charge correctly stated prevailing law. Furthermore, the rule espoused by appellee would compel counsel to urge upon the trial court every conceivable theory, on the mere chance that, before his case is finally concluded, one such theory might become the law. Since, by hypothesis, the trial court would have to overrule any objection based on his failure to adopt one of these theories, on appeal, the winning party below would be in the same position as the instant appellee. Indeed this requirement would tend to delay justice, for the court below would still have to consider and rule on each theory. 8 Therefore, we are unwilling to conclude that the appellants' failure to interject the rationale of Griffith into the trial constitutes a waiver 9 and precludes them from now seeking the benefit of that decision.
We deem one further comment appropriate to the disposition of this case. During his closing argument appellee's counsel, over objections, made frequent reference to the relative affluence of the parties. Because there must be a new trial in any event, we need not decide whether these remarks were so prejudicial that a new trial should be granted on this ground alone or whether, as the trial judge concluded, their effect was sufficiently attenuated by the rest of the argument as to have no effect on the verdict. Suffice it to say that we deem the remarks highly inappropriate 10 and are confident that they shall not be repeated at retrial.
Judgments reversed and new trial ordered.
I concur in the result for only one reason--I believe that plaintiffs should be permitted to present their case for trial pursuant to the conflict of laws rule of Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964), whereby the negligence law of Pennsylvania must be applied to this case.
My concurrence in no way indicates my approval of the qualifications of plaintiffs' expert witness...
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