Before DUFFY and CASTLE, Circuit Judges, and GRUBB, District Judge.
This diversity action for wrongful death was commenced in the Southern District of Indiana by a Kentucky administrator against two Indiana defendants. Plaintiff's decedent, a resident of Kentucky, was killed in an accident in Illinois in which his car collided with a truck owned by defendant corporation and driven by defendant Goodrich. At the time of his death, the decedent was twenty-one years old, unmarried, and had no dependents. The five potential beneficiaries of this action are all residents of Indiana.
The defendants moved to dismiss the complaint on the grounds that there could be no recovery in excess of $10,000, and that the plaintiff failed to state a claim against the defendants on which relief could be granted. The trial court sustained the motion, and the plaintiff is appealing.
The issue presented by this appeal is whether the law of Indiana or the law of Illinois governs the damage question in this case.
The Indiana wrongful death statute*fn1 predicates recovery on dependence of the beneficiaries on the deceased. It is argued that the Illinois wrongful death statute*fn2 does not have a similar requirement, although the question is open to dispute. In view of the result reached in this case, a determination of that question is not necessary.
The appellant urges that the Illinois statute is controlling in this case because the law of the place of wrong governs the right to recover. In the past the "place of wrong" choice of law rule has been generally applied. This rule, founded on a "vested rights" theory, has been vigorously criticized as failing to cope with the complexities of modern day multistage occurrences. The inadequacy of the mechanical application of the lex loci delecti has caused many courts in recent years to abandon it in favor of a more flexible rule for choice of law.
In Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S. Ct. 856, 97 L. Ed. 1211 (1953), the Supreme Court upheld the constitutionality of a forum state, Pennsylvania, applying its own one-year statute of limitations for wrongful death actions to a case arising out of a death in Alabama and brought under the Alabama wrongful death statute, which had a two-year statute of limitations.
In Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162 (1953), the question of whether a cause of action would survive the death of the tort-feasor was decided under California law even though the accident occurred in Arizona where an opposite rule applied. The issue was characterized as a problem of administering decedents' estates. The court pointed out that the decedent's estate was in California and that that was the state where letters of administration had been granted.
Wisconsin has decided that the question of interspousal liability is to be decided by the law of the domicile of the parties and not by the law of the place of the wrong. Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814 (1959). See also Brunke v. Popp, 21 Wis.2d 458, 124 N.W.2d 642 (1963), and Parchia v. Parchia, 24 Wis.2d 659, 130 N.W.2d 205 (1964).
Minnesota has held a defendant liable under its "dram shop" act for damages arising from an accident in Wisconsin where there was no "dram shop" law. The court pointed out that Minnesota was the place of the sale of intoxicants and the domicile of both parties. Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957).
In Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir. 1962), cert, denied 372 U.S. 912, 83 S. Ct. 726, 9 L. Ed. 2d 720 (1963), an action was commenced in New York under the Massachusetts wrongful death statute, where the death occurred. The court, en banc, held it was constitutional for New York law to govern the amount of recovery even though the Massachusetts statute specifically limited recovery to $15,000. The New York law placed no limitation on the damages for wrongful death. The court rejected the idea that the law of the place of wrong had reached the elevation of constitutional status. This case upheld the principle announced in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961).
The question of the amount of recovery in wrongful death actions was considered recently by the Pennsylvania Supreme Court in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). The court, in re-examining its choice of law rules to assure that they were "in harmony with the realities of this age," abandoned the place of wrong rule and adopted "a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court." (Page 805)
The result of the new rule was the application of the Pennsylvania law as to recovery in lieu of the law of Colorado, the place of the wrong. Factually, this case involved the death of a Pennsylvania resident in the ...