Breedlove v. Beech Aircraft Corporation, DC 7033.

• Decision Date: 14 September 1971
• Docket Number: No. DC 7033.,DC 7033.
• Citation: 334 F. Supp. 1361
• Parties: J. C. BREEDLOVE, Sr., Plaintiff, v. BEECH AIRCRAFT CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

334 F. Supp. 1361

J. C. BREEDLOVE, Sr., Plaintiff, v. BEECH AIRCRAFT CORPORATION, Defendant.

No. DC 7033.

United States District Court, N. D. Mississippi, Delta Division.

September 14, 1971.

Tom H. Davis, Austin, Tex., Charles C. Finch, Batesville, Miss., for plaintiff.

William E. Suddath, Jr., Jackson, Miss., for defendant.

MEMORANDUM OPINION ON MOTION TO DISMISS

KEADY, Chief Judge.

In this diversity action, plaintiff, J. C. Breedlove, Sr., a Mississippi citizen, sues Beech Aircraft Corporation (Beech), a foreign corporation chartered under Delaware laws and having its principal place of business at Wichita, Kansas, for bodily injuries arising out of a products liability claim. The accident on which the claim is based occurred on or about July 28, 1968, when plaintiff, the owner and pilot of a Model A-35 Beechcraft Bonanza airplane, was forced to make a crash landing in Yell County, Arkansas. By his complaint, plaintiff alleges that the crash was caused by the malfunctioning of a Beech electric propeller, Model R-203, designed, manufactured, assembled and placed on the market by Beech and intended by it to be used in the Model A-35 airplanes manufactured by Beech, and as designed and manufactured the electric propeller was unsafe and not reasonably fit for use.

Summons upon Beech was served through the office of the Mississippi Secretary of State, pursuant to the state's long-arm statute, Miss.Code Ann. § 1437.¹ Beech has moved to dismiss the action for lack of jurisdiction, asserting that it is not subject to suit locally since it is a foreign corporation which is neither qualified to do business nor has ever done business in Mississippi. The matter is now ripe for the court's decision on this motion.

The affidavits and depositions on file disclose that Beech maintains no employees or agent for service of process in the state, nor does it own any property, real or personal, situated in Mississippi. Beech manufactures aircraft and parts and equipment therefor and markets its products through distributors, none of whom is located in Mississippi. Beech-appointed distributors, in turn, sell Beech products through dealers designated by distributors. Beech has no relationship, legal or otherwise, with such dealers. At one time a Beech distributor in Baton Rouge, Louisiana, sold Beech products in Mississippi; more recently, a Beech distributor located in Tulsa, Oklahoma, designated a dealer in Jackson, Mississippi, to handle Beech products, but this dealership was terminated prior to the filing of suit. Beech has no financial interest in either of the two distributorships which in past years have had Mississippi territory.

The evidence also indicates that in 1949 Beech manufactured plaintiff's aircraft at its Wichita, Kansas plant, and on November 30 of that year sold it to a firm in Chicago, Illinois. In 1965 plaintiff became the eighth owner of the aircraft by purchase from a resident of North Carolina. On December 3, 1949, the electrically controlled variable pitch propeller which Beech manufactured and originally installed on the airplane was removed by the airplane's second owner, and a constant speed propeller was installed. This propeller apparently remained on the aircraft until June 1968 when plaintiff took the airplane for an annual inspection to DeSoto Air Park, Inc., a fixed base operator located in DeSoto County, Mississippi. Determining that the propeller should be replaced, DeSoto Air Park bought, second-hand, from a source in Memphis, Tennessee, an electrically controlled Beech variable pitch propeller, Model R-203, which it installed on plaintiff's aircraft in DeSoto County. This model propeller, which was manufactured by Beech in 1949, was the same type that was originally installed on plaintiff's Beechcraft Bonanza. When it did not work properly, the propeller was removed and twice sent to Aero Industries, a propeller shop at Greenville, Mississippi, for repairs. The propeller was then returned to DeSoto Air Park, which reinstalled it on plaintiff's plane on July 20, 1968. Eight days later, after 20 hours of flight time, the plane crashed in Arkansas.

The pertinent allegations of plaintiff's two-count complaint, which must be taken as true for the purpose of ruling upon Beech's motion challenging our jurisdiction, are:

"4.

Prior to July 28, 1968, the defendant designed, manufactured, assembled and placed upon the market Beech Electric Propellers and component parts, which were intended by defendant to be used in aircraft such as the Beechcraft Bonanza, Model A-35. Defendant knew that these propellers and its components would be so used, and by placing these propellers and components on the market represented that they were not defective and were safe and suitable for the use to which they were intended. The propeller and components identified above were unsafe and unsuitable for their intended use by reason of the fact that because of defects the propeller malfunctioned. As a direct and proximate cause of these defects complainant sustained the injuries and damages herein alleged and complainant alleges and charges defendant with strict liability.

* * * * * *

6.

Complainant further alleges that defendant knew that propellers and components of the type described above would be used on aircraft such as the Beechcraft Bonanza, Model A-35, and by advertising and placing them on the market for these purposes defendant represented and warranted to complainant that the propellers and components were suitable and reasonably fit for the purposes for which they were intended to be used. Although complainant relied upon the skill and judgment of defendant and upon the implied warranty of suitability for the purpose for which the propellers and components were designed, manufactured and sold on the market, said warranty was not true and the propeller and components identified herein were not suitable and were not reasonably fit for the purpose for which they were intended to be used. As a direct and proximate result of the breach of warranty, complainant sustained the injuries and damages herein alleged."

It is necessary only to consider ¶ 4, which is based upon strict liability in tort, since that doctrine was adopted in Mississippi in State Stove Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss.1966), where the Court expressly approved § 402A of the American Law Institute's...