Henry W. GORANSON, Administrator with the Will Annexed of the Estate of Harold T. Goranson, deceased, Petitioner, v. Honorable Frank L. KLOEB, United States District Judge, Respondent

United States Court of Appeals for the Sixth Circuit1962-10-13No. No. 15029

308 F.2d 655

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Holding. The petition for mandamus is denied because the district court's transfer of the case did not constitute a clear abuse of discretion, and Ohio law has not yet departed from the traditional conflict-of-laws rule applying the damage limitations of the state where the injury occurred.

A deceased airline passenger's estate administrator filed a wrongful death action in the U.S. District Court for the Northern District of Ohio, where the decedent maintained a residence. The district court transferred the case to the Eastern District of Virginia, Norfolk Division, where the fatal airplane crash occurred. The administrator sought mandamus relief, arguing that the transfer deprived him of Ohio's constitutional provision allowing unlimited damages in wrongful death actions, whereas Virginia law imposed a $30,000 cap.

The court rejected the administrator's reliance on a New York case suggesting that forum states need not apply damage limitations from the state where the accident occurred when such limitations conflict with the forum's public policy. Ohio, however, has adopted the principle of "lex loci delicti," meaning that the law of the place where the injury occurred governs the measure of damages in wrongful death cases. Because Ohio courts have not yet abandoned this conflict-of-laws principle in favor of the modern approach advocated in the New York decision, the court declined to fashion new law for Ohio contrary to its established precedent.

The court concluded that the district judge's decision to transfer the case was a discretionary matter that did not constitute a clear abuse of discretion warranting mandamus relief.

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Key issues

Whether transferring a wrongful death case deprives a plaintiff of substantive rights under the forum state's law
Whether Ohio courts should adopt a modern doctrine refusing to apply damage limitations from the place of injury when contrary to forum state public policy
Whether the application of the conflict-of-laws principle "lex loci delicti" in wrongful death cases constitutes an abuse of judicial discretion in transfer decisions

Procedural posture

The administrator petitioned for mandamus review of a district court order transferring the wrongful death action from the Northern District of Ohio to the Eastern District of Virginia.

Authorities cited

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Opinion · public domain

majority opinion

PER CURIAM.

This is a proceeding in Mandamus to review the order of the District Court transferring the action to the Eastern District of Virginia, Norfolk Division.

Plaintiff’s decedent had purchased a ticket on the Capital Airlines (which has since merged with United) to travel by air from Washington, D. C. to Norfolk, Virginia and met his death when the airplane crashed in that state. An action for wrongful death for the benefit of the next of kin was filed by the personal representative in Virginia and the present action for wrongful death was later filed in the United States District Court for the Northern District of Ohio, Western Division, where decedent had a place of residence.

The petitioner contends that the transfer of the case from Ohio to Virginia has deprived him of the benefit of a provision in the Constitution of Ohio to the effect that in an action for wrongful death there shall be no limitation in the amount of recovery. In Virginia there is a limitation of $30,000. Petitioner relies on dictum in the recent case of Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 and the decision in Pearson v. Northeast Airlines, Inc., 199 F.Supp. 539 (S.D.N.Y.). The dictum in Kiiberg was to the effect that the forum state would not enforce the statutory limitation of the state of the place of the accident where it is against the public policy of the forum state. Pearson followed Kiiberg but was reversed by the Court of Appeals for the Second Circuit in 307 F.2d 131, Judge Kaufman, dissenting.

The dictum in Kiiberg would undoubtedly be applied by the courts in the state of New York. It enunciates a modern doctrine to the effect that the place of injury in airplane accidents is entirely foituitous and that the forum state should protect its residents against “unfair and anachronistic treatment of the lawsuits which result from these disasters.”

If the District Judge had tried the case in Ohio instead of transferring it to Virginia, he would have been required to apply the rule of the forum on conflict of laws. Ohio recognizes the application of the principle of “lex loci delicti” in wrongful death cases. Ellis, Admx. v. Garwood, 168 Ohio St. 241, 152 N.E.2d 100 (1958). The measure of damages is governed by the law of the place where the accident occurred. Louisville & N. Rd. Co. v. Greene, Admx., 113 Ohio St. 546, 149 N.E. 876 (1925); Alexander v. Pennsylvania Co., 48 Ohio St. 623, 636, 30 N.E. 69; Weiser, Admr. v. Smith, 73 Ohio App. 380, 56 N.E.2d 522; Ford Motor Co. v. Barry, 30 Ohio App. 528, 165 N.E. 865; Louisville & N. Rd. Co. v. Greene, Admx., 26 Ohio App. 392, 160 N.E. 495. See also: Duskin v. Pennsylvania-Central Airlines Corp., 167 F.2d 727, 732 (C.A. 6).

To our knowledge, Ohio has not adopted the New York dictum. Until the Ohio courts have spoken on the subject we must follow the law as it is. We should not attempt to make new law for the state in conflict with its existing decisions.

The granting of an application to transfer is a matter requiring the exercise of judicial discretion and in the absence of a clear abuse of discretion cannot be reviewed by Mandamus. We find no abuse here.

The petition for Mandamus, accordingly, is denied.