not be a denial of due process of law under the Federal Constitution, if it can successfully be contended that the operation of aircraft is an ultrahazardous activity as to the persons for whose benefit absolute liability is imposed. The peculiar nature of the hazards imposed and the inability of the person exposed to it to protect himself in the exercise of reasonable care seems to be the constitutional basis for the imposition of absolute liability.'
The Journal similarly concludes that 'The equal protection clause of the Federal Constitution would not inhibit the imposition of such absolute liability', and also that as to such a liability constituting 'an unjust burden upon interstate commerce. It would not seem that such would be a valid objection if it be determined that the imposition of such liability is a proper exercise of the police power of the State, for any regulation of interstate commerce would be purely incidental'. The Journal finally concludes by recommending an absolute liability aviation statute, though Federal, not State, as to persons on the ground:
'Persons on the ground (not on a landing area of an established airport) should be compensated for injuries directly attributable to the operation of aircraft, irrespective of the aircraft operators' negligence * * *. The imposition of absolute liability by legislation under such circumstances involves no departure from law as it is now developing. * * * Important as the continued development of civil aviation is believed to be, no convincing reason has been presented why it should be subsidized at the expense of the luckless victim on the ground who, without participating in aviation in any way, is injured by an aircraft accident even though not attributable to the fault of the operator.'
This concurrence both of our leading jurists and of one of our leading legal aviation experts, forcefully supports the conclusion that aviation is ultrahazardous.
Since there is thus good reason to consider aviation ultrahazardous, aviation falls into the category of blasting, of the storage of dynamite, of drilling for oil, of the escape of fire from trains,
the peculiar dangers of each of which subject those engaged therein to liability without fault at common law, in the absence of statute, according to the viewpoint of the above Restatement of Torts. Indeed, the courts have already laid down much the same principles as to aviation at common law in the absence of statutes.
If then, limited absolute liability is valid as to aviation at common law, a fortiori such liability is valid when the legislative representatives of the people of the State have declared it to be the public policy and law of the State. For that is the very function entrusted by the Constitution to the keeping of the legislature, subject to the limitation that this determination shall not be a purely arbitrary one, but shall have reason in its support. In other words, to constitute a proper regulation of the rights of all affected by aviation- and this is what the entire statute in question does as to torts, contracts, crimes and property rights- the statute must have a reasonable relation to the public health, welfare and safety. Then, as seen above, it is a proper exercise of the police power. Then, by the same token, it does not deprive of property without due process of law, Atchison, Topeka & Santa Fe R.R. v. Matthews, supra, Chicago, R.I. & P.R. Co. v. Zernecke, 1902, 183 U.S. 582, 22 S. Ct. 229, 46 L. Ed. 339, as to statute covering even passengers on a railroad.
That the provisions of the statute in question do have a reasonable relation to the public welfare would seem clear from what has already been said. Certainly, the New Jersey Legislature, in view of the above evidence as to the ultrahazardous character of the aviation industry, had the right to reach the same conclusion, and to select as applicable to aviation, the very legal policy which the jurists of the American Law Institute, let alone the above legal aviation expert, deemed the soundest and fairest of all applicable policies.
Indeed, there are additional reasons why this choice of policy by the New Jersey Legislature bears a reasonable relation to the public welfare, thus validating the legislative choice as a proper exercise of the police power. As is said in Broom, Maxims, 249 'There is no obligation to do impossible things.' 2 Brouvier's Law Dictionary, Rawles 3rd Revision, 2137. This axiom applies with peculiar force to the statutory provisions in question. For the above article from the Journal of Air Law and Commerce quotes Dean John H. Wigmore as having found, after investigation as to aviation accidents, that 'not in twenty per cent of the accidents which have thus far occurred would it have been possible for the plaintiff to find and produce provable evidence of the real cause of the accident.'
And the writer continues that with regard to the fatal aviation accidents occurring in 1939, 'plaintiff could establish liability in about thirty four per cent of all cases.'
Indeed, the National Conference of Commissioners on Uniform State Laws, in drafting their new act in 1938, above alluded to, expressly included therein the following:
'Section 103. (Statement of Policy.) The Legislature finds as a fact that it is rarely possible for individuals who have been injured or for the personal representatives of individuals who have been killed or for persons whose property has been lost or damaged in or as the result of an aircraft accident, to establish the cause of the accident. Public policy demands that compensation should not be denied to any person because of his inability to prove negligence or his inability to rebut evidence offered by operators of aircraft that they were not guilty of negligence. It is primarily for this reason that certain provisions of this act impose liability upon operators of aircraft regardless of negligence.'
In short, if the statute were not in effect- nor the common law rule above alluded to, and this rule differs in different state- plaintiffs could prove their right to recover in but one-fifth to one-third of their cases. In other words, in the great bulk of such cases, the injured plaintiffs, or their decedents in death cases, though innocent third parties, would be utterly unable to recover for the injury or death which befell them. Surely the Legislature had a right to provide a remedy for this. That such a decision by the Legislature bears a reasonable relation to the public welfare is too clear for argument. That the New Jersey Legislature did have this view and that the statutory provisions in question are considered valid by the State courts in New Jersey is indicated prima facie from the decision in the Bergen County Court of Common Pleas in the case of Kirschner v. Jones & White, 1932 U.S.Av.Rep. 278, where, after the enactment of the statute in question, the court sustained a verdict for plaintiff in a case where defendant's plane crashed on the roof of plaintiff's home- a situation practically on all fours with the cases at bar. This case is indeed the only known decision so far interpreting the statutory provisions in question.
Defendants' attack upon the validity of the above statutory provisions, as a deprival of property without due process, thus fails.
The provisions of the New Jersey Constitution, on which defendants rely, Art. I, Sec. 1, are substantially identic today with the provisions of the New Jersey Constitution of 1844, immediately preceding the present State Constitution. These provisions were interpreted by the highest New Jersey State court to be equivalent to the due process clause of the Federal Constitution. State Board of Milk Control v. Newark Milk Co., 118 N.J.Eq. 504, 179 A. 116 (E & A. 1935). Hence defendants' reliance on the above provisions of the New Jersey Constitution is equally without merit.
Defendants further attack the validity of these statutory provisions as an invalid restraint upon interstate commerce. The statutory provisions in question clearly show that:
(1) They do not affect the actual movement of airplanes in interstate commerce.
(2) They do not affect the average airplane, even financially, as would a tax.
(3) They only affect an airplane owner financially on the occurrence of an accident. Such an accident the defendant owner will certainly agree is not the ordinary result of air travel.
(4) The benefit of the statutory provisions does not go to any one who in any wise participates in such air travel, such as passengers, but only to those who are, under ordinary circumstances, entire strangers to air travel, and who are totally without fault themselves.
It is obvious from the above that the effect of the above statutory provisions on interstate commerce is indirect and casual. It is equally obvious that the effect of such statutory provisions on the public welfare has the clearest of reason in its support, and is a rational exercise of the police power. The principle has been settled in a host of cases that if a statute is a proper exercise of the police power, and has but an indirect effect upon interstate commerce, it is not an invalid interference with interstate commerce.
The few authorities cited by defendants as in their support are so dissimilar in fact as not to be analogous. Nor do the statutory provisions in question conflict with Congressional control of interstate commerce. The field covered by them is entirely different from that covered by the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 401 et seq.
Defendants' claim that the statutory provisions in question are invalid as an unreasonable burden on interstate commerce is thus insubstantial.
Since defendants' attack on the statutory provisions in question, as unconstitutional, are found to be without merit, plaintiffs' motion to strike the defenses barred by the New Jersey Act N.J.S.A. 6:2-7 is granted. On the motions for summary judgment presumably under F.R.C.P. 56(d), counsel will be heard further, on motion, if desired. Counsel will present forms of order accordingly in all cases here involved.