Continental Motors Corp. v. Joly

• Decision Date: 01 April 1971
• Docket Number: No. 3863,3863
• Citation: 483 P.2d 244
• Parties: CONTINENTAL MOTORS CORPORATION, a foreign corporation, Appellant (Defendant below), v. Antonio V. JOLY, Appellee (Plaintiff below), and Darr Services, Inc., a Wyoming corporation, Appellee (Defendant and Cross-Claimant below).
• Court: Wyoming Supreme Court

Page 244

483 P.2d 244

CONTINENTAL MOTORS CORPORATION, a foreign corporation, Appellant (Defendant below), v. Antonio V. JOLY, Appellee (Plaintiff below) and Darr Services, Inc., a Wyoming corporation, Appellee (Defendant and Cross-Claimant below).

No. 3863.

Supreme Court of Wyoming.

April 1, 1971.

Rehearing Denied May 13, 1971.

Edward E. Murane and G. G. Greenlee, of Murane, Bostwick, McDaniel, Scott & Greenlee, Casper, for appellant.

G. L. Spence, Casper, Frank M. Andrews, Riverton, for appellee Antonio V. Joly.

W. Randall Boyer, Lander, for appellee Darr Services, Inc.

Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.

Chief Justice McINTYRE delivered the opinion of the court.

This is a products liability case involving an airplane accident. Suit was brought by the pilot, Antonio V. Joly, for bodily injuries suffered in the accident. The defendants were Continental Motors Corporation, manufacturer of the plane's engine; Darr Services, Inc., owner of the plane; and Wyoming Air Service, the firm that serviced the plane. Darr cross-claimed against Continental for loss of its plane. The appellant is Continental Motors Corporation.

Darr owned and operated an air taxi service which utilized a Navion model aircraft and transported passengers. The aircraft was equipped with an engine manufactured by appellant. The aircraft was maintained and serviced by Wyoming Air Service, a firm located at Riverton, Wyoming, one of the defendants.

On September 3, 1963, Joly was flying the Navion plane on behalf of Darr on a passenger-carrying trip from Lander, Wyoming, to Rapid City, South Dakota. After leaving Lander, he brought the plane into Wyoming Air Service at Riverton for correction of engine trouble. He reported the engine was 'rough.' The servicing mechanic found there was difficulty with three spark plugs, one of which was not functioning at all. These plugs were cleaned, re-gapped and replaced. Joly was told by the mechanic to run the aircraft up and bring it back if it was not all right. Apparently Joly then left for Rapid City.

Subsequently the plane was set down near Glenrock, Wyoming, somewhat off course for Rapid City. It ran into the upslope of a ravine and crashed. The passenger was killed and Joly suffered permanent disabilities from injuries received in the crash. His injuries were such that he had no recollection, at the time of trial, concerning events during or prior to the accident. He could not even testify to what transpired at Riverton. It was found, on post-accident examination of the plane, that the motor had failed and necessitated an emergency landing.

In addition to the engine roughness which Joly reported to Wyoming Air Service on the day of his ill-fated trip, Floyd Johnson, the mechanic and an officer for Wyoming Air, stated in his report to the Federal Aviation Administration (FAA) inspector, following the accident, that Joly had also reported the experiencing of engine roughness on a recent flight from Minnesota.

The jury which heard the case found against both Continental and Wyoming Air Service. It awarded damages to Joly in the amount of $310,000 against Continental and Wyoming Air Service. It awarded damages to Darr, for loss of its plane, in the amount of $20,038.90, against Continental. Judgment was entered according to the verdicts. Thereafter, Joly, Continental, and Wyoming Air entered into an agreement. Pursuant to said agreement, Wyoming Air paid Joly $80,000 and was released from further liability to him. It was agreed the sum of $100,000 would be credited on Joly's judgment in the event it was affirmed, and Continental approved this arrangement.

It is undenied that Joly was a 55-year-old pilot who had been decorated by the Canadian Air Force for service in World War II; that his experience included service in most of the old bi-wing planes; and before World War II he was one of four approved sky-writers in this country. As such, he flew over New York City doing advertising by spelling words with smoke from his plane. Not only did Joly have a great and varied experience in almost every kind of aircraft, from bombers on down, he was licensed by FAA as a pilot, as a commercial pilot, and as a certified instructor of student pilots.

Since Joly was an employee of Darr, it goes without saying that the judgment in favor of Darr cannot stand unless Joly was free from negligence which contributed to the accident. Also, the judgment in his favor cannot stand unless he was free from contributory negligence.

We have said, in McKee v. Pacific Power and Light Company, Wyo., 417 P.2d 426, 427, and in Coleman v. Casper Diamond Jubilee, Inc., Wyo., 473 P.2d 600, 601, it seems to be well settled that there is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner of the facilities in question.

Because the jury found in favor of both Joly and Darr, it must be assumed the jury found an absence of negligence on the part of Joly which contributed to the accident. However, the jury found against Wyoming Air Service. The jury therefore had to believe Wyoming Air was negligent in sending Joly on his way to Rapid City without doing more to find and correct the source of trouble in the Navion's engine.

Unless we assume mechanic Johnson had more expertise regarding the need for further mechanical work and the unsafe condition of the plane than did pilot Joly, we would have to adhere to the rule applied in McKee and Coleman and say Joly failed to exercise due care for his own safety.

However, we believe Joly and Darr have failed to carry the burden of proof imposed upon them of proving that negligence on the part of the manufacturer was a proximate cause of their injuries. Therefore, we need not decide whether Joly should be held contributorily negligent as a matter of law. The finding that Wyoming Air was negligent and that its negligence was a proximate cause of the accident is not disputed and is indeed tacitly conceded by all parties concerned in the appeal.

Issues Involved

The plaintiff and cross-complainant filed their complaints and proceeded up to the time of trial on the theory that defendant-Continental had negligently designed and manufactured the aircraft. Aside from allegations of negligence, claimants also asserted a right to recover on the theory of a warranty of fitness. These were the issues delineated by the claimants in their pretrial memorandums.

Subsequent to the pretrial conference Continental made answer to interrogatories propounded on behalf of Joly. In its answer Continental stated:

An 'examination revealed that Piston $3 was burned through at the ring belt and that certain connecting rods and bearings failed as a direct result of oil starvation';

That 'it was concluded that the cause of the piston failure was due to preignition';

That 'this conclusion was reached based upon experience and inspection of other engines in the industry with similar failures';

That 'the appearance of the piston is one of typical pre-ignition and such failures have been documented for years in technical publications';

And that 'no more positive determination could be made due to the fact that the piston in question could not be disturbed for metallurgical tests of any type.'

As to whether the answers of Continental caused Joly and Darr to alter their theory of the case, we could only speculate and we will not pretend to do that. Suffice it to say Counsel for plaintiff-Joly made it known in his opening statement at trial that one of the theories upon which Joly would rely would be that the engine was manufactured by Continental with a magneto setting 4 above its own specifications. Counsel for appellant says this was the first time that particular contention had been specified.

The matter of magneto settings was gone into during the trial. Then, at the conclusion of the evidence counsel for Joly moved to have his complaint amended to conform to the evidence, and in particular with respect to his claim of an improper magneto setting. There was strenuous objection by counsel for Continental, but the motion was allowed.

Of course, it cannot be determined whether negligence on the part of the manufacturer was a proximate cause of injury, or whether the manufacturer is liable on the theory of a warranty of fitness, without consideration of the acts or omissions of the servicing company. Failures in performance of duty by Johnson of Wyoming Air Service have been described by counsel for Joly in this manner:

'Floyd Johnson, at no single time during the three 100-hour inspections had ever given the engine a compression test. A compression test may have resulted in a discovery of the cracked piston. In addition, the record discloses that oil on a spark plug may mean a cracked piston, and Johnson discovered oil on one of the spark plugs which he removed from the airplane just before releasing the airplane to take off. Even at this time he made no compression test or further inquiry. Mr. Joly had complained of the rough engine. One of the spark plugs had oil deposits on it. Yet, no compression test was run, which test would take but a few seconds and is simply done by pulling the prop through and listening for escaping gas or air from a cracked or broken cylinder. This would have been a simple and positive test to find out whether or not the piston was leaking gas or air into the crankcase, and would have immediately alerted the mechanic to the fact that the piston was defective, and the airplane should not be flown without major repairs. This neglect on the part of Wyoming Air Service to discover the original manufacturing defect, joined with the negligence of Continental Motors so that, for the negligence of both, the engine failure would not have occurred.'

It will be noted in the foregoing statements that counsel for Joly gives recognition to the neglect on the part of Wyoming Air...