Vrooman v. Beech Aircraft Corp.

• Decision Date: 26 June 1950
• Docket Number: No. 4048.,4048.
• Citation: 183 F.2d 479
• Parties: VROOMAN v. BEECH AIRCRAFT CORP.
• Court: U.S. Court of Appeals — Tenth Circuit

183 F.2d 479 (1950)

VROOMAN v. BEECH AIRCRAFT CORP.

No. 4048.

United States Court of Appeals Tenth Circuit.

June 26, 1950.

Joseph H. McDowell and Harry Miller, Jr., Kansas City, Kan., for appellant.

Lawrence Weigand, Wichita, Kan. (Dwight S. Wallace, Daniel M. Moyer, Claude I. Depew, W. E. Stanley, William C. Hook and Lawrence E. Curfman, all of Wichita, Kan., on the brief) for appellee.

Before, HUXMAN, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

Claude E. Vrooman, a resident of Missouri, sued Beech Aircraft Corporation of Delaware in the United States District court of Kansas, complaining in substance that on October 23, 1947, he and the owner of a Beechcraft Model 53 returned the plane to its manufacturer in Wichita, Kansas advising the Company that soon after the plane was purchased the motor began to miss, throw oil and the spark plugs "fouled"; and, that at the request of the Company the plane was left for "inspection and repair". That on November 3, 1947, the Company delivered the plane to the owner and to the plaintiff, acting as pilot, and impliedly warranted that it was safe to fly. That he had no knowledge of the repairs or inspection performed on the plane, but relied upon the Company for the proper repair and inspection; that the Company negligently failed to properly inspect and repair the plane, proximately causing it to crash while taking off at the St. Joseph County, Indiana, airport on November 8, 1947, as a result of which he sustained personal injuries to his damage in the sum of $50,000.00.

The trial court sustained a motion to dismiss on the grounds that the complaint failed to state a cause of action upon which relief could be granted and entered judgment for Beech Aircraft, from which this appeal is taken.

While the complainant uses language susceptible of an action for a breach of an implied warranty, his brief and argument leave no doubt of his intention to plead a cause of action in tort. Under the rules of simplicity and liberality, upon the observance of which we insist, See Rule 8, F.R.C.P., 28 U.S.C.A., we judge the sufficiency of the complaint as one sounding in tort for the negligence of a manufacturer or repairer. And, since the allegations in the complaint must be taken as true, the sole question is whether Beech Aircraft, as a negligent manufacturer or repairer of the airplane is liable in tort for damages sustained by the pilot when it crashed by reason of such negligence. Otherwise stated, did the manufacturer or repairer owe an actionable duty to this plaintiff to manufacture or repair the airplane with ordinary care and prudence.

The parties have treated the question as controlled by the law of Kansas, where the airplane was manufactured and repaired, rather than by the law of Indiana where the accident occurred. On the theory that Kansas is the place of the wrong and that the law of that State therefore determines whether the plaintiff sustained a legal injury, we likewise consider the question as controlled by Kansas law. See Restatement of the Law of Conflict of Laws, §§ 378, 389, 380, and 383.

Although the trial court gave no reason for its judgment of no cause of action, it is apparently based upon the notion that in the absence of some contractual relationship the manufacturer or repairer owed no actionable duty to the injured pilot. This concept of non-liability was spawned in the dicta of a breach of contract case, Winterbottom v. Wright, 10 Mees. & W. 109, 152 Eng.Reprint 402, and nourished in the perpetuation of the false notion that privity of contract is an indispensable prerequisite to a manufacturer's actionable duty to third parties. The history and metamorphosis of the so-called "general rule" is vividly portrayed in the recent case of Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559, and a comprehensive note, 164 A.L.R. 569.

It seems sufficient for our purposes to state that since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A.1916F, 696, Ann.Cas.1916C, 440, "If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully." In short, if a manufacturer of a thing is negligent "where danger is to be foreseen, a liability will follow". Foresight of consequences creates a duty, the violation of which is an actionable wrong. The range of duty is measured by that which should be...