Aldisert, James Rosen, and Hunter, Circuit Judges.
This appeal is a wrongful death diversity action emanating from an airplane crash in Alaska in 1966 raises a choice of law problem, challenges the district court's rulings on several evidentiary matters, and questions the court's instructions to the jury.
On August 15, 1966, appellant's decedent was killed when the plane in which he was a passenger crashed during a thunderstorm near Anchorage, Alaska. The crash was directly caused by the failure of the main spar in the center truss section of the right wing, which resulted in the wing's collapse. The aircraft, a Beech C-18S, was manufactured by appellee in 1945 to the specifications of its original owner, the United States Army Air Corps. At the time of the crash, it was operated by its twelfth and final owner, Shaw Flight Service of Anchorage. Asserting negligence,*fn1 appellant instituted an action against Shaw, the flight operator, in 1966, which was ultimately settled for $50,000. This action against the manufacturer, alleging negligence and breach of warranty in manufacture, was subsequently commenced in the court below, resulting in a jury verdict for the manufacturer. This appeal followed.
Both parties suggest that a substantial choice-of-law problem is presented by the facts of this case. The action, involving an aircraft manufactured in Kansas which crashed in Alaska, was brought in the district of Delaware, appellee's place of incorporation.*fn2 The court below, as the parties recognize, was obligated to fashion a choice of law rule in this case consistent with Delaware law. Klaxon v. Stentor Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Boase v. Lee Rubber & Tire Corp., 437 F.2d 527, 529 (3d Cir. 1970). That law was well expressed in Friday v. Smoot, 58 Del. 488, 211 A. 2d 594, 595 (Del. 1965): Delaware holds "that the substantive rights of the parties in a tort action are governed by the law of the place where the tort arose, while procedure is governed by the law of the place where the action is brought." It is at this familiar expression of the substance-procedure dichotomy*fn3 that the parties chart different courses.
Appellant suggests that because standard of care has been deemed substantive under Delaware law, Clayton v. Bartoszewski, 57 Del. 274, 198 A. 2d 692 (Del. 1964), the traditional lex loci delicti rule mandates that Alaskan law should govern the disposition of this case. Thus, appellant argues, because Alaska has adopted the strict liability rule for manufacturers of defective products, Clary v. Fifth Avenue Chrysler Center, Inc., 454 P. 2d 244 (Alaska 1969), admission of extensive exculpatory evidence tending to show an absence of negligence in the design and manufacture of the aircraft was reversible error.
Appellee contends, however, that "where the tort arose" refers not to where the injury occurred, but to where the negligence took place. This distinction, appellee asserts, was tacitly recognized by the Delaware courts in Folk v. York-Shipley, Inc., 239 A. 2d 236 (Del. Super. 1968).*fn4 See also, Ehrenzweig, "Product Liability in the Conflict of Laws -- Toward a Theory of Enterprise Liability Under 'Foreseeable and Insurable Laws,'" 69 YALE L.J. 794, 801 (1960). Thus, appellee argues that Kansas law must establish the standard of care to which an aircraft manufacturer in 1945 should have adhered in designing and constructing his product. That Alaska was the situs of the injury was merely fortuitous; the defective manufacture, if it occurred at all, took place in Kansas.
Appellee's argument grounded in the interest-analysis approach to conflict of laws,*fn5 suggesting that Kansas has a more rational connection with the facts of this case and, hence, greater contacts and concern with the resolution of this dispute, does not obviate the clear mandate of Friday v. Smoot, supra : Delaware has not yet opted to join the growing list of jurisdictions which have adopted the grouping-of-contacts conflict-of-laws rule.*fn6 Consequently, appellee's suggestion that, in Delaware, lex loci delicti permits reference to the law of the place of the negligence rather than to the law of the place of the injury must be rejected.*fn7 Quandt v. Beech Aircraft Corp., 317 F. Supp. 1009, 1013 (D. Del. 1971); see also, Handy v. Uniroyal, Inc., 327 F. Supp. 596, 599 (D. Del. 1971); Pack v. Beech Aircraft Corp., 50 Del. 413, 132 A. 2d 54, 56 (Del. Super. 1957).
The choice-of-law problem takes on an added dimension in a products liability case, however. Although on this appeal appellant has exclusively characterized his claim as "strict liability in tort," the complaint below alleged both negligence and breach of warranty.*fn8 In Delaware, the conflict-of-laws rule differs in warranty actions, which are deemed contract,*fn9 from that employed to resolve multi-jurisdictional tort claims. Indeed, in Quant v. Beech Aircraft Corp., supra, an action arising from an air crash in Italy brought against the present appellee, the complaint alleged both breach of warranty and negligence. In considering a transfer of the case to the district of Kansas,*fn10 the Delaware court found that Kansas law controlled the contract-warranty action, and that lex loci delicti required that Italian law govern the tort-negligence claim. Quant, supra, 317 F. Supp. at 1012-1013.*fn11
Although we are inclined to agree with the commentators*fn12 that a products liability case -- particularly where, as here, the action is brought by a third party against a manufacturer -- has its basis in tort rather than contract, which would refer us to Alaskan law, we perceive no critical difference in the substantive law of Kansas from that of Alaska regarding the standard of care by which appellee's conduct in this case must be measured. Thus, we find resolution of this choice of law problem unnecessary.
The Alaskan courts first applied the strict liability in tort doctrine in Clary v. Fifth Avenue Chrysler Center Inc., supra. There the court expressly adopted the California rule announced in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 700, 377 P. 2d 897, 900 (Cal. 1962): "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being."*fn13 Because there is so little case law yet developed from the Alaskan courts applying the doctrine, it remains uncertain if Alaskan strict liability would obtain here, where the aircraft was inspected, altered, and maintained for 21 years subsequent to its manufacture. In any event, the trial court submitted the case to the jury with an instruction which fully comported with the Alaskan strict liability doctrine:
The defendant, Beech Aircraft Corporation . . . is liable to the plaintiff for any injury suffered by him if the plaintiff establishes by a preponderance of the evidence that:
First, the aircraft was defective in manufacture at the time it was placed on the market and delivered in 1945 or as modified in 1950; that is to say, the alleged defect existed immediately after the manufacture or modification; and second, the claimed defect was a proximate cause of any such injury to the plaintiff occurring while the aircraft was ...