Baker v. Beech Aircraft Corp.

• Decision Date: 21 May 1974
• Citation: 39 Cal.App.3d 315,114 Cal.Rptr. 171
• Court: California Court of Appeals Court of Appeals
• Parties: , 91 A.L.R.3d 981 Robert BAKER, a minor, by his guardian ad litem, Margaret Baker, et al., Plaintiffs and Appellants, v. BEECH AIRCRAFT CORPORATION et al., Defendants and Respondents. Civ. 13287.

Page 171

114 Cal.Rptr. 171

39 Cal.App.3d 315, 91 A.L.R.3d 981

Robert BAKER, a minor, by his guardian ad litem, Margaret Baker, et al., Plaintiffs and Appellants, v. BEECH AIRCRAFT CORPORATION et al., Defendants and Respondents.

Civ. 13287.

Court of Appeal, Fourth District, Division 2, California.

May 21, 1974.

Hearing Denied July 17, 1974.

[39 Cal.App.3d 317] Magana & Cathcart, and Charles D. Sneathern, Los Angeles, for plaintiffs and appellants.

Kirtland & Packard, Jacques E. Soiret, and Robt. E. Moore, Jr., Los Angeles, for defendant and respondent Beech Aircraft Corp.

OPINION

GABBERT, Acting Presiding Justice.

This is an action to recover for wrongful deaths and personal injuries arising out of an airplane accident which occurred October 16, 1968, near Las Cruces, New Mexico. The plane was a Beechcraft model S-- 35, manufactured by respondent Beech Aircraft Corporation (Beech). The pilot, Hampson, and one passenger, Baker, were killed. The second passenger, Pribble, one of the appellants herein, sustained serious injuries.

In addition to Pribble, other appellants, all plaintiffs below, are: Margaret Baker and Robert Baker, Jr., wife and minor son of the decedent, Baker, and Eleanor S. Hampson, James Price Hampson and Robert Bruce Hampson, wife and adult sons of the decedent, Hampson.

The complaint was filed May 24, 1972, and before any response was made by defendant Beech, a first amended complaint was filed. Beech then sought to remove the cause from the state court to the United States District Court, Central District of California, where the matter was remanded to the state court. Beech thereupon demurred to the first amended complaint by challenging the sufficiency of the pleading, asserting it was barred by the one-year statute of limitations (Code Civ.Proc., § 340, subd. 3) and attacking the allegations seeking punitive damages. The trial court sustained the demurrer as to the first, third and fifth causes of action which sought general damages for the Bakers, Hampsons and Pribble respectively. (The second, fourth and sixth causes of action sought exemplary damages on behalf of the same parties.) The court granted 30 days within which the complaint might be amended. The court stated in its ruling the demurrer was sustained 'for failure to state a cause of action' and noted that facts constituting concealment on the part of Beech should be specifically alleged pursuant to Hesse v. Vinatieri, 145 Cal.App.2d 448, 451, 302 P.2d 699. It denied without prejudice the other grounds of the demurrer and a motion to strike.

Thereafter, a second and a third amended complaint, expanding the allegations of fraud and concealment, were filed. In each instance a demurrer was again interposed on similar grounds to those previously asserted. The demurrer to the third amended complaint was sustained without leave to amend. The court held that the third amended complaint did not state a cause of action other than as to the minor plaintiff, Robert Baker, Jr. A judgment of dismissal was thereupon entered in favor of Beech against the adult plaintiffs. ¹

The sole contention on appeal is that the trial court erred in ruling that the third amended complaint failed to state a cause of action by the adult plaintiffs against Beech because of the bar of the one-year statute of limitations. Inasmuch as the crash of the Beechcraft plane occurred October 16, 1968, and the complaint was filed May 24, 1972, the primary questions before us are the date the purported causes of action accrued and whether the statute of limitations was tolled. ²

The court below accepted Beech's argument that the statute began to run on the date of the crash. Appellants contend this was error in that the court failed to take into consideration the application of the 'discovery' rule enunciated in a number of California decisions. Illustrative is the statement in Warrington v. Charles Pfizer & Co., 274 Cal.App.2d 564, 80 Cal.Rptr 130, in support of such contention: '. . . there appears to be a definite trend toward the discovery rule and away from the strict rule in respect of the time for the accrual of the cause of action for personal injuries.' (Ibid., at p. 567, 80 Cal.Rptr. at p. 132.)

Appellants allege in the first cause of action, which allegations are incorporated by reference in the third and fifth causes of action, that respondent Beech fraudulently concealed material facts with respect to the condition of the aircraft it manufactured. The complaint states that the fuel system of the plane did not meet the minimum requirements of the Federal standards under which the plane was certificated. It also asserts that at the time the aircraft was manufactured, sold and distributed it was in a dangerous, defective condition in that, because of the design of the fuel system, under certain modes of normal flight air could enter the fuel lines and cause a loss of power with resultant loss of control of the aircraft. It was alleged Beech knew or should have known this was a defect for which the users of the aircraft would not ordinarily inspect and such faults rendered the aircraft unreasonably dangerous to the life, health and safety of those using it. The complaint further states that as a result of such deficiencies the plane involved in the instant case suffered a loss of engine power causing it to crash proximately causing the deaths, injuries and damages set forth.

In furtherance of their claim of fraudulent concealment by Beech, appellants allege that Beech represented to the Federal Aviation Administration, both prior to and following the air crash involved herein, the fuel system was safe, fit, free of defects, met Federal standards and was in all respects airworthy. The complaint additionally contains allegations Beech had actual knowledge of the claimed defect, yet falsely and fraudulently continued to make such representations for the purpose of inducing persons to purchase, operate and occupy such planes. For the purpose of avoiding claims for damages for injury or death resulting from the defect, it was alleged that Beech gave no warning of this deficiency to users and the defect was not one which could be discovered without elaborate or extensive tests.

The complaint also stated that at all times during which such misrepresentations were made to the general public including the appellants, Beech had actual knowledge, as a result of flight tests it had performed, that the fuel system was unsafe, unairworthy and unreasonably dangerous for the use intended. It was also alleged that despite such knowledge Beech intentionally and falsely failed to warn users of its aircraft and the public generally of the danger and risk of using such planes containing the defective fuel system. Furthermore, it was stated appellants relied on such false representations and were unable to obtain information concerning the true facts or obtain the finding of probable cause of the particular air crash made by the National Transportation Safety Board (NTSB) until approximately one year after the subject accident. Due to concealment on the part of Beech, it was claimed the NTSB did not consider the aforementioned defects and concluded probable cause of the accident was 'power plant failure for undetermined reasons.' ³

In addition, the complaint stated the appellants did not become aware of the falsity of respondent Beech's representations until approximately 30 days prior to the filing of the original complaint herein. At that time friends of the appellants referred them to an article which had appeared in the Wall Street Journal in July 1971. ⁴

Respondent argues that the allegations of the complaint do nothing more than charge respondent Beech with 'silence,' and that 'silence,' absent a confidential relationship or facts creating a duty to disclose, does not constitute fraudulent concealment and does not toll the statute of limitations. (Scafidi v. Western Loan & Bldg. Co., 72 Cal.App.2d 550, 562--563, 165 P.2d 260; Wright v. Redwood Theatres, Inc., 49 Cal.App.2d 403, 408, 121 P.2d 756.)

The general rule is that the applicable statute (Code of Civ.Proc., § 340, subd. 3) begins to run when the cause of action accrues even though the plaintiff is ignorant of the cause of action or of the identity of the wrongdoer. (Howe v. Pioneer Mfg. Co., 262 Cal.App.2d 330, 340, 68 Cal.Rptr. 617.) A cause of action invariably accrues when there is a remedy available. (Heyer v. Flaig, 70 Cal.2d 223, 230, 74 Cal.Rptr. 225, 449 P.2d 161.) Mere ignorance, Not induced by fraud of the existence of facts constituting a cause of action does not prevent the running of the statute of limitations. (See Rubino v. Utah Canning Co., 123 Cal.App.2d 18, 28, 266 P.2d 163.)

In order to establish fraudulent concealment, the complaint must show: (1) when the fraud was discovered; (2) the circumstances under which it was discovered; and (3) that the plaintiff was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put him on inquiry. (Kimball v. Pacific Gas & Elec. Co., 220 Cal. 203, 215, 30 P.2d 39.) In urging lack of means of obtaining knowledge, it must be shown that in the exercise of reasonable diligence the facts could not have been discovered at an earlier date. (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 339, pp. 1180--1181.) 'The existence of such fraud must be alleged clearly and unequivocally, and must not rest upon inferences.' (Bank of America v. Williams, 89 Cal.App.2d 21, 25, 200 P.2d 151, 154; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 783, p. 2398.)

It is the law in this state that the rules to be applied in a case involving fraudulent concealment of a cause of action, in determining when the plaintiff discovered or should have discovered the facts giving rise to his cause of action, are the same as those which govern in cases falling within Code of Civil Procedure, section 338, subdivision...