332 F.2d 73 (2nd Cir. 1964), 323, George v. Douglas Aircraft Co.

Docket Nº:323, 28476.
Citation:332 F.2d 73
Party Name:Thomas D. GEORGE, John C. Winthrop, and Charles F. Fink, Plaintiffs-Appellants, v. DOUGLAS AIRCRAFT CO., Inc., Defendant-Appellee.
Case Date:April 28, 1964
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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332 F.2d 73 (2nd Cir. 1964)

Thomas D. GEORGE, John C. Winthrop, and Charles F. Fink, Plaintiffs-Appellants,


DOUGLAS AIRCRAFT CO., Inc., Defendant-Appellee.

No. 323, 28476.

United States Court of Appeals, Second Circuit.

April 28, 1964

Argued Feb. 13, 1964.

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W. Shelby Coates, Jr., Dow & Stonebridge, New York City, for appellants.

Harold V. McCoy, Reilly & Reilly, New York City (John M. Downing, New York City, of counsel), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge:

Plaintiffs, members of the crew of a DC-7C sold by Douglas Aircraft Co. to Braniff Airways in 1957, were injured when the airplane crashed in Florida in the early morning of March 25, 1958, as the result of an engine failure shortly after taking off from Miami on a flight to South America. They brought this action against Douglas in the Southern District of New York on March 25, 1963, predicating federal jurisdiction on plaintiffs' citizenship in Texas and defendant's Delaware incorporation. 1 The complaint alleged that Douglas had 'impliedly and expressly represented and warranted' that the aircraft sold by it to Braniff and the Curtiss-Wright engines installed therein 'were of good and merchantable quality, free from defects, and fit for the purposes of commercial carriage for hire for which said aircraft and model engines were intended.' Douglas moved for summary judgment 'on the ground that the statute of limitations has expired'-- more particularly the limitations statute of

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California, where the airplane was made and delivered, or of Florida, one or the other of which was considered to be made applicable by New York's 'borrowing' statute, Civil Practice Act, § 13. Plaintiffs denied that the action was barred under the Florida statute of limitations, which they claimed to be the pertinent one. The judge ruled for Douglas.

Section 48, subd. 3 of the New York Civil Practice Act, in Effect when the action was brought, allowed a six year period for 'An action to recover damages for a personal injury, except in a case where a different period is expressly prescribed in this article'; § 49, subd. 6 allowed only three years for 'An action to recover damages for * * * a personal injury, resulting from negligence.' Blessington v. McCrory Stores Corp., 305 N.Y. 140, 111 N.E.2d 421, 37 A.L.R.2d 698 (1953), held the six year statute applicable to an action by the administrator of a child against a store that had sold the mother a dangerously inflammable garment, on the ground that 'the contract breached is not merely one to use due care, but is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought.' 305 N.Y. at 147, 111 N.E.2d at 423. We shall follow the parties in assuming that the Blessington decision would also have covered an action against a manufacturer not in 'privity' with the plaintiffs, although this would have produced what might appear to be the anomalous result that the non-negligent manufacturer within the area of strict liability would be subjected to the six year statute whereas the negligent manufacturer outside that area would have the benefit of the shorter three year statute-- a result seemingly inevitable under the New York statutes before their recent revision. 2 Contrast CPLR, §§ 213, subd. 2 and 214, subd. 5. Apart from the borrowing statute the action was thus timely even if Douglas was continuously subject to suit in New York.

New York's borrowing statute as it stood on March 25, 1963, Civil Practice Act, § 13, forbade the bringing of an action by a non-resident to enforce a cause of action 'arising' outside New York 'after the expiration of the time limited by the laws * * * of the state or country where the cause of action arose, for bringing an action upon the cause of action * * *.' 3 If the New York courts would hold that plaintiffs' 'cause of action arose' in California, where the contract of sale was executed and the airplane was manufactured and delivered, 4 that would end the matter since § 340(3) of the California Code of Civil Procedure establishes a one-year period of limitations for personal injury actions, and this has been held to apply whether the action sounds in contract or in tort. Rubino v. Utah Canning Co., 123 Cal.App.2d 18, 26, 266 P.2d 163, 168 (Dist.Ct.App.1954).

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On the other hand the action was brought within the five years which Florida allows for 'An action upon any contract, obligation or liability founded upon an instrument of writing not under seal,' Fla.Stat. § 95.11(3), F.S.A., but not within Florida's three-year period for 'an action upon a contract, obligation or liability not founded upon an instrument of writing * * *,' § 95.11(5), or its four-year statute for 'Any action for relief not specifically provided for in this chapter.' § 95.11(4). 5

Although the facts in Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963), might well have permitted a decision as to which state's substantive law would govern liability here, they did not produce one. The suit, brought by the administratrix of a passenger killed in New York against the manufacturers of a Lockheed airplane and of a Kollsman altimeter on a theory of warranty, came before the Court of Appeals on pleadings which did not allege the place of manufacture or delivery. The administratrix nevertheless relied on the law of California, which apparently does impose strict liability on an airplane manufacturer. Hinton v. Republic Aviation Corp., 180 F.Supp. 31 (S.D.N.Y.1959); Garon v. Lockheed Aircraft Corp., 7 CCH Av.Cas. 17,418, 1962 U.S.Av.R. 130 (1961). Cf. Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 353 P.2d 575 (1960); Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962). The Special Term had dismissed the complaint, Goldberg v. American Airlines, Inc., 23 Misc.2d 215, 199 N.Y.S.2d 134 (Sup.Ct.1960), on the basis of New York law which it held to be applicable on the authority of Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334 (1948) and which, on its view, did not impose strict liability. The Appellate Division affirmed. 12 A.D.2d 906, 214 N.Y.S.2d 640 (1961). The majority of the Court of...

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