Lumbard, Chief Judge, Waterman and Anderson, Circuit Judges.
This action arises out of the same Northeast Airlines summer weekend flight from New York City to Nantucket Island, Massachusetts, with which this court became acquainted in the actions for wrongful death entitled Kilberg v. Northeast Airlines, Inc., 9 N.Y. 2d 34, 211 N.Y.S. 2d 133, 172 N.E.2d 526 (1961), decided by the Court of Appeals of New York, and Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2 Cir. 1962), cert. denied, 372 U.S. 912, 83 S. Ct. 726, 9 L. Ed. 2d 720 (1963), decided after the Kilberg decision by this court sitting in banc.
Gordon Dean, plaintiff's decedent, was a prominent business executive who worked in New York City and resided there with his immediate family which consisted of his wife and their two small children, aged 4 and 2 respectively. On August 14, 1958, in New York City, he purchased a round trip ticket between New York City and Nantucket Island, Massachusetts, on Northeast Airlines. The following day, Friday, August 15, 1958, he used the ticket, boarding the plane as a fare-paying passenger at LaGuardia Airport in New York City to fly to Nantucket to join his family who were enjoying a summer vacational sojourn there. The flight was a direct one with no intermediate stops between LaGuardia and Nantucket airports; it passed over no states other than New York and Massachusetts. As the plane attempted to land at Nantucket airport that day it crashed, a crash which plaintiff alleges was due to the negligence of Northeast Airlines, and Dean was killed.
On August 28, 1958, plaintiff, a non-resident of New York, a brother of Dean's widow, presented for probate to the Surrogate's Court of the County of New York Dean's will, in which plaintiff was the named executor. In due course the will was admitted to probate and plaintiff was qualified to act as executor. He has remained a non-resident of New York.
One month after the crash Mrs. Dean gave up the New York apartment where she and her two children had lived with Mr. Dean and went to Maryland to live with her mother at the mother's home. They were living there when the present suit was commenced*fn1 and when the judgment order below was entered.*fn2 Mr. Dean was also survived by two older children born of a previous marriage, who were residing in California at the time of Dean's death, and, it would seem, have continued to reside there. On August 15, 1958 the older, a married daughter, Martha Dean Contrarius, was in her 26th year, and the younger, a son, Franklin, in his 20th.
Northeast Airlines, Inc., is a Massachusetts corporation authorized to do business in New York. It maintains its principal place of business in Massachusetts, but has ticket offices and terminal facilities in New York, has daily flights initiating and terminating at New York airports, and advertises its New York contacts extensively. It was and is the only regularly scheduled airline serving Nantucket Island.
This action was instituted by plaintiff-executor in the New York State Supreme Court for New York County. The complaint set forth three causes of action for which damages were sought, one for occasioning the death of Mr. Dean, another for the pain and suffering caused by the accident which he endured before his death, and one for damage to his personal property. On Northeast's petition setting forth the diversity of citizenship of the parties the action was removed to the United States District Court for the Southern District of New York. Northeast then served its answer denying any liability, and additionally setting forth an affirmative defense to the first cause of action based on the $15,000 limitation of liability in the Massachusetts wrongful death statute, Mass. Gen. Laws ch. 229 § 2 (1955).*fn3 Plaintiff's motion under Fed. R. Civ. P. 12(f) to strike the defense as insufficient in law was denied. Gore v. Northeast Airlines, Inc., 222 F. Supp. 50 (S.D.N.Y. 1963). Northeast, claiming that on the pleadings there was no genuine issue as to any material fact and that upon these material facts it was as a matter of law entitled to a defendant's judgment, then moved pursuant to Rule 56(b), Fed. R. Civ. P. for summary judgment dismissing plaintiff's wrongful death action insofar as it sought damages in excess of $15,000, dismissing the second cause of action based on pain and suffering before death and dismissing the property damage action insofar as it sought damages in excess of $100, the tariff limitation thereon. Northeast also moved pursuant to Fed. R. Civ. P. 12(c) that judgment be entered against Northeast on the pleadings in the plaintiff's favor for $15,000 on the wrongful death cause of action and for $100 on the property damage cause of action. Both of Northeast's motions were granted in an unreported opinion, and a final judgment was entered thereon.*fn4 Plaintiff only appeals from so much of the judgment as limited plaintiff's damages in the wrongful death cause of action to $15,000 and from the judgment entered for plaintiff in that amount. The basic claim before us on review relates to whether the $15,000 limitation imposed on plaintiff's recoverable damages for the wrongful death of plaintiff's decedent should have been applied.
This court, only having jurisdiction over this removed action by reason of the diversity of citizenship of the parties, must apply the law which the New York courts, the forum from which the action was removed, would have applied in adjudicating the parties' rights and liabilities. Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). This includes the application of New York's conflict of laws rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Therefore, we must, by applying New York law, determine a result that it appears the New York courts would reach if the New York state courts rather than the federal courts in New York were to consider whether the Massachusetts statute limiting to $15,000 the damages recoverable from Northeast so limited the damages a New York appointed and qualified executor could recover in New York for the wrongful death in Massachusetts of a New York resident survived by a widow and minor children.
In Kilberg v. Northeast Airlines, Inc., 9 N.Y. 2d 34, 211 N.Y.S. 2d 133, 172 N.E.2d 526 (1961), the New York Court of Appeals in a well-considered and reasoned dictum ruled in a wrongful death action involving this same Nantucket crash that, though the right to sue for damages because of the death was based upon the Massachusetts wrongful death statute under the rule of lex loci delictus, the ceiling on damages recoverable under that same statute could not be applied by New York courts because of a strong New York public policy against such limitations. See footnote 6, infra. In another case arising out of the same crash, considered in depth by our court in banc, Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2 Cir. 1962), cert. denied, 372 U.S. 912, 9 L. Ed. 2d 720, 83 S. Ct. 726 (1963), we followed the Kilberg reasoning and we further held that the action of the New York Court of Appeals in approving the grounding of the action upon the Massachusetts statutorily created right while at the same time refusing to apply the built-in statutory limitation upon recoverable damages did not violate the full faith and credit clause of the U.S. Constitution or the due process clause of the Fourteenth Amendment.
The court below was of the belief that our Pearson holding following Kilberg, need not be followed here, even though the three decedents Kilberg, Pearson, and Dean, were domiciled in New York and each had extensive contacts in New York with the defendant, for the court found there to be a difference in the whereabouts of Mrs. Dean and Dean's other beneficiaries at times subsequent to Dean's death from the whereabouts of the Kilberg and Pearson widows after the crash, and believed this difference required the different result. In the first opinion below it is stated, 222 F. Supp. 50, at 51 (SDNY 1963, McGohey, J.) that:
Kilberg, Pearson and the instant case arose out of the same crash.
In both Kilberg and Pearson, the decedent was a New York domiciliary, as was also each decedent's sole beneficiary as to each of whom this was true not only at the time of the decedent's death but also when the suit was commenced and thereafter. Also each ...