Pack v. Beech Aircraft Corp.

• Decision Date: 24 May 1957
• Parties: , 50 Del. 413, 67 A.L.R.2d 207 Louis J. PACK and S. Samuel Arsht, as Executors of the Estate of Manuel N. Pack, deceased, Appellants, v. BEECH AIRCRAFT CORPORATION, Appellees.
• Court: United States State Supreme Court of Delaware

Page 54

132 A.2d 54

11 Terry 413, 50 Del. 413, 67 A.L.R.2d 207

Louis J. PACK and S. Samuel Arsht, as Executors of the Estate of Manuel N. Pack, deceased, Appellants, v. BEECH AIRCRAFT CORPORATION, Appellees.

Supreme Court of Delaware.

May 24, 1957.

S. Samuel Arsht and Harvey S. Kronfeld, Wilmington, for appellants.

E. N. Carpenter, II, Wilmington, for appellees.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

SOUTHERLAND, Chief Justice.

Manuel N. Pack, plaintiffs' testator, was an airplane pilot. He was a resident of Delaware. On or about June 13, 1953, he was killed in an airplane crash in New Jersey. He had been piloting an airplane manufactured and designed by the defendant aircraft corporation. On October 25, 1955, his executors sued in Delaware to recover damages for his death, alleging that the defendant's airplane was defective in design and manufacture. The action was begun more than two years but less than three years after the date of death. It is founded upon the New Jersey wrongful death statute. That statute requires that actions brought under it 'shall be commenced within 2 years after the death of the decedent, and not thereafter'. N.J.S.A. 2A:31-3.

The Delaware wrongful death statute contains no special time limitation. The general three-year statute of limitations applies to actions brought under it. 10 Del.C. § 8106; Homiewicz v. Orlowski, 34 Del. 66, 143 A. 250.

The question presented is one of conflict of laws. Which time limitation governs this case? The court below held that the New Jersey act controlled and dismissed the suit. Plaintiffs appeal.

The basic holding of the opinion below is that the two-year provision of the New Jersey statute is a limitation of the liability created by the statute--a condition of the right to recover--and upon the expiration of the two-year period the cause of action is extinguished. In so holding the court below merely followed the decisions of the Supreme Court of New Jersey in Lapsley v. Public Service Corporation, 75 N.J.L. 266, 68 A. 1113, and Bretthauer v. Jacobson, 79 N.J.L. 223, 75 A. 560, 562. In the Bretthauer case the court said:

'* * * But this provision of the death act is not an ordinary statute of limitations. It operates, not only as a limitation of the remedy given the plaintiffs, but also as a limitation of the liability which it creates against defendants. Lapsley v. Public Service Corporation, 75 N.J.L. 266, 68 A. 1113. Consequently, when the wrongful act which is the subject-matter of the present litigation was committed by the defendants' employe, the defendants became legally liable for a period of 12 calendar months to compensate the next of kin of the deceased for the pecuniary injury resulting to them from his death, and were exempt from such liability at the expiration of that period.'

Under well-settled principles of conflict of laws we must accept the construction placed upon the statute by the New Jersey courts. The place of bodily injury determines the place of wrong, i. e., the tort (Restatement, 'Conflict of Laws', § 377); and the law of the place of wrong governs the right of action for death (restatement, 'Conflict of Laws', § 391). Moreover, limitations of time incorporated in wrongful death statutes are almost universally held to constitute 'built-in' conditions of the right to recover; and accordingly it is said:

'A limit of time for bringing suit contained in a statute giving damage for death is binding everywhere, and no state will allow suit after the time has elapsed.'

2 Beale, Conflict of Laws, § 397.1.

The Restatement is to the same effect. § 397; § 605.

It is elementary that an event that creates no cause of action in a foreign state cannot be made the basis of an action in the state of the forum. 2 Beale, Conflict of Laws, § 378.4. Under the New Jersey statute, as construed by the New Jersey courts, there existed no cause of action in the plaintiffs when this suit was filed. Paragraph 1 of the statute had created a cause of action, but paragraph 3 had extinguished it. We cannot enforce paragraph 1 of the section and disregard the other paragraphs. If we disregard the New Jersey law in respect of the time condition (held by its courts to be a matter of substantive right), may we disregard it in respect of the provisions specifying the plaintiffs entitled to sue (N.J.S.A. 2A:31-2), or the provision specifying the persons entitled to the recovery (N.J.S.A. 2A:31-4)? We must enforce the statute as we find it, and as construed by the New Jersey courts.

The rule has been recognized in Delaware, at least by way of dictum. White v. Govatos, 40 Del. 349, 10 A.2d 524. It has been applied in New York in a suit brought on the New Jersey statute. Schwertfeger v. Scandinavian-American Line, 186 App.Div. 89, 174 N.Y.S. 147, affirmed 226 N.Y. 696, 123 N.E. 888.

Although plaintiffs criticize the soundness of the 'limitation of liability' theory, their case really comes to this: that the Delaware 'borrowing' or 'comity' statute relating to foreign causes of action changes the settled principle of conflict of laws above referred to (2 Beale, § 397.1, supra) and makes the Delaware three-year statute applicable to the case.

Our borrowing statute is found in 10 Del.C. § 8120. It reads:

'Where a cause of action arises outside of this State, an action can not be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose, for bringing an action upon such cause of action. Where the cause of action originally accrued in favor of a person who at the time of such accrual was a resident of this State, the time limited by the law of this State shall apply.'

This statute is an example of the modern trend toward modification of the common law rule that the matter of limitation of actions is controlled by the law of the forum. See 11 Am.Jur., 'Conflict of Laws', § 197; Restatement, 'Conflict of Laws', § 604b. It is, as defendant's counsel correctly says, an act to prevent 'forum-shopping'. If a non-resident chooses to bring a foreign cause of action into Delaware for enforcement, he must bring the foreign statute of limitations along with him if the foreign statute prescribes a shorter time than the domestic statute. Our statute does not apply to a resident of this State suing on a foreign cause of action, provided he was a resident when the cause of action arose. As to such a resident the common law rule that the lex fori governs the matter of limitation of actions is left in full force.

On its face, therefore, the general purpose of the statute is to shorten the period of limitation applicable to actions arising in foreign jurisdictions if the foreign statute specifies a shorter period; with a proviso, however, that the rights of a certain class of residents shall be unaffected by the change. Such, we think, is the clear and obvious meaning of the statute.

Plaintiffs, however, insist that the proper construction of the statute is this:

The first sentence of the statute, they say, admittedly changes the common law, i.e., it borrows the foreign statute if the latter provides a limitation shorter than that of the law of the forum. But, they say, the second sentence likewise changes the common law; it is designed to make the lex fori applicable to all cases of foreign causes of action brought by residents of Delaware (if they were such residents at the time the causes arose), including even those actions which by the law of the foreign forum involve statutes with a 'built-in' condition affecting the existence of the right as well as the remedy.

Now, if the plaintiffs are right, the intent of the second sentence of our borrowing statute is to extend the period of limitation under the common-law conflicts rule in cases such as the instant one.

Such an idea is foreign to the general purpose of 'borrowing' statutes in the field of limitation of actions. These statutes are designed to prevent shopping for the most favorable forum, and hence to shorten the time limit--not to extend it. 'Borrowing statutes provide only a shorter time limit than the local period, which is still applicable to bar an action not barred by the borrowed foreign limitation.' 63 Harv.L.Rev., 1177, 'Statutes of Limitations', at page 1263.

But there is a more serious objection to plaintiffs' construction. If plaintiffs are right, it was the legislative intent, through the medium of a borrowing statute dealing with limitations of actions, to import an innovation into our substantive law. The elementary and settled rules in the field of conflict of laws, above discussed, would be changed. We cannot believe that by a mere proviso to a borrowing statute, dealing only with ordinary statutes of limitations, the legislature intended any such radical change.

But plaintiffs insist that this second sentence is unique in a borrowing statute and has no real meaning unless it be construed to change the common law rule. The statute is not unique; as originally adopted, it was almost a verbatim copy of Section 13 of the New York Practice Act. The second sentence of this section has been construed by the New York courts as not extending the shorter limitation period of a foreign statute if that period is a 'built-in' condition that extinguishes the right at the expiration of the statutory period. Weiss v. Baviello, 203 Misc. 1031, 117 N.Y.S.2d 891, Id., Sup., 133 N.Y.S.2d 344, affirmed 286 App.Div. 1024, 146 N.Y.S.2d 674; In re Tonkonogoff's Estate, 177 Misc. 1015, 32 N.Y.S.2d 661. These cases are authority against plaintiff's contention. It is true that they contain little discussion of the scope and purpose of Section 13; but it seems probable that the New York courts thought it highly unreasonable, as we do, to infer an intention to change a settled--a...