Conlon v. Republic Aviation Corporation

• Decision Date: 29 March 1960
• Citation: 204 F. Supp. 865
• Parties: Delton H. CONLON, Plaintiff, v. REPUBLIC AVIATION CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

204 F. Supp. 865

Delton H. CONLON, Plaintiff, v. REPUBLIC AVIATION CORPORATION, Defendant.

United States District Court S. D. New York.

March 29, 1960.

Speiser, Quinn & O'Brien, New York City, for plaintiff. Robert A. Dwyer, New York City, of counsel.

Mendes & Mount, New York City, for defendant. Kenneth R. Thompson, George W. Clark, New York City, of counsel.

LEVET, District Judge.

The defendant, Republic Aviation Corporation (hereinafter designated as "Republic"), has moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. for an order dismissing the second alleged cause of action in the complaint for the failure to state a claim upon which relief can be granted. The question involved is whether this claim, which is predicated upon the breach of an implied warranty of quality and fitness, must be dismissed upon the ground that there was lack of privity between plaintiff and the defendant.

The plaintiff brings this action to recover for personal injuries sustained by him in the crash of an aircraft, commonly known as a "SeaBee," manufactured and sold by the defendant Republic. At the time of the crash the plaintiff was riding as a passenger in the aircraft, which was owned and operated by his employer, Precision Automatic Company. The crash occurred during a take-off from Austin Lake Airport, Kalamazoo, Michigan on April 29, 1957.

The first cause of action is based upon negligence and is not involved in this motion.

The second cause of action is founded upon the breach of an implied warranty of quality and fitness. The defendant contends that this cause of action should be dismissed upon the ground as above stated.

Since the accident happened in Michigan, the New York Conflict of Laws Rule requires that the substantive law of the State of Michigan be applied. See Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334 (1948); Hunter v. Derby Foods, Inc., 2 Cir., 1940, 110 F.2d 970, 133 A.L.R. 255; Goldberg v. American Airlines, Inc., Supreme Court, New York County, 1960, Steuer, J., 23 Misc.2d 215, 199 N.Y.S.2d 134.

The Michigan Supreme Court in an opinion written by Mr. Justice Voelker, dated June 12, 1958, rejected the requirement of privity in an action for breach of an implied warranty against a manufacturer. Spence v. Three Rivers Builders & Masonry Supply, Inc., 1958, 353 Mich. 120, 90 N.W.2d 873.

As stated by Mr. Justice Voelker in the Spence case, supra:

"We can also find no reason in logic or sound law why recovery in these situations should be confined to injuries to persons and not to property, or allowed in food and related cases and denied in all others. Nor, least of all, can we divine why our Court should ever have felt compelled, in the generally narrow circumstances where it has allowed any recovery at all, to split up the duty of care into esoteric degrees of high, low or medium, as though care were a chancy and fluctuating barometer of conduct which rose or fell depending on the state of our livers." 90 N.W.2d at 878.

Justice Voelker in the same case further commented:

"In addition we observe that the modern trend in other jurisdictions is to permit recovery by remote vendees against the manufacturer whether the action sounds in negligence or on an implied warranty or both. Thus at page 53 in the 1957 cumulative supplement to 46 Am. Jur. , Sales, § 825, p. 947, the supplemental text reads as follows: `To recover damages for an injury from goods purchased, a plaintiff may rely upon negligence alone or upon an implied warranty, or may plead negligence and recover on the implied warranty, or, upon pleading both, may waive the tort and recover on the implied warranty.'

"A succinct but thorough thumbnail sketch of the history and development of this doctrine of liability of a manufacturer to a remote vendee appears in the 1957 supplement to 46 Am.Jur., Sales, at pp. 47-49, which in turn appears to be based to a large extent on a similar annotation in 164 A.L.R. 569. The supplementary text traces how the doctrine of nonliability crept into our law from a casual dictum in an English case decided in 1842 (which, to add to the delightful irony, did not even involve a manufacturer), and how many American courts quickly fell upon this ancient dictum and blew it up into a `general rule' to relieve manufacturers of all liability; of how our courts then gradually grafted upon it a bizarre cluster of `exceptions,' some of which we have already noted, which wondrously grew and grew until, in all truth — much like the boa constrictor swallowing itself — the exceptions devoured the rule; and how the English in due course sensibly scuttled their earlier dependence on this old dictum while many of our American courts remained tenacious in their devotion to the old `rule' — many, indeed, even after Justice Cardozo's historic decision in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696 p. 879

* * * * * *

"As noted, there is a leading annotation on this whole subject in 164 A.L.R. 569, cited throughout the reference already made to Am.Jur., but we shall here content ourselves with giving but a few extracts from page 48 in the cited Am.Jur. supplement, which we quote without further ado:

"`* * * In other words, under the modern law, where the manufacturer is held not liable for negligence, he is excused from liability on doctrines of the law of torts; lack of foreseeability, want of actual negligence, or the fact that the injury was not proximately caused by his conduct, is the true basis of nonliability. The manufacturer is not excused under the modern law merely because there happened to be a lack of any privity of contract between him and the injured person; such an artificial and anachronistic basis for relief from tort liability can no longer, in the final analysis, be asserted.

"`Under the modern doctrine there is little doubt that a person who has had no direct contractual relations with a manufacturer may nevertheless recover from such manufacturer for damages to property caused by the negligence of the manufacturer in the same manner that such a remote vendee or other third person can recover for personal injuries.'" (90 N.W.2d p. 880) (

...