Fredrick v. Bensen Aircraft Corp., 8737

• Decision Date: 29 October 1968
• Docket Number: No. 8737,8737
• Citation: Fredrick v. Bensen Aircraft Corp., 436 S.W.2d 765 (Mo. App. 1968)
• Parties: Robert J. FREDRICK, Plaintiff-Respondent, v. BENSEN AIRCRAFT CORPORATION, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 765

436 S.W.2d 765

Robert J. FREDRICK, Plaintiff-Respondent, v. BENSEN AIRCRAFT CORPORATION, Defendant-Appellant.

No. 8737.

Springfield Court of Appeals, Missouri.

Oct. 29, 1968.

Motion for Rehearing Denied Nov. 26, 1968.

Lincoln, Haseltine, Forehand & Springer, Carl E. Yates, Edmund C. Forehand, Springfield, for defendant-appellant.

Kirby, Millsap & Lewis, John R. Lewis, Springfield, for plaintiff-respondent.

TITUS, Judge.

Plaintiff sued defendant Bensen Aircraft Corporation for actual and punitive damages, alleging defendant had falsely represented (1) plaintiff would be its exclusive franchise dealer in Greene County Missouri, and (2) an amateur-built gyrocopter kit purchased by plaintiff was eligible for airworthiness certification by the Federal Aviation Agency (FAA) in accordance with Federal Aviation Regulations (FAR). At the close of plaintiff's evidence the claim anent the franchise dealership was dismissed and the trial terminated when the jury returned a verdict favorable to plaintiff in the sum of $4,200 for 'actual damages.' The trial court sustained defendant's motion for a new trial 'on the ground that the jury verdict is excessive, unless the plaintiff remits $993.00 (Making the judgment $3207.00),' and opined, 'the most favorable evidence for plaintiff proves only $4002.00 damages and the fair market value of the unboxed materials (retained by plaintiff) were not taken into account and must be said to be $795.00 in view of plaintiff's testimony * * *.' Plaintiff entered the remittitur, and defendant appealed, asseverating the trial court erroneously instructed the jury and erred in not directing a verdict for it at the close of all the evidence. In attending to this latter contention, we honor the rule requiring us to review and recast the evidence in the light most favorable to the plaintiff and accept his evidence with all reasonable inference deducible therefrom as true. Gardner v. Anderson, Mo.App., 417 S.W.2d 130, 133(1).

An aside at this time may aid understanding of the contrivances involved. The gyroglider and gyrocopter resemble a helicopter except neither has a tail rotor and the single rotor atop each is not powerdriven but a free-wheeling device. A gyroglider is pulled into flight attahced to a towline connected to a land or water vehicle. Neither the gyroglider nor its pilot need to be certified or licensed by the FAA, and the gyroglider may be legally flown though made wholly from a 'do-it-yourself' construction kit composed completely of prefabricated, pre-cut, pre-drilled components and parts and assembled 'with steel bolts like an erector set.' By adding an engine, a gyroglider may be converted into a gyrocopter which is a free-flying aircraft powered by a pusher-type propeller driven by a gasoline motor. Both the gyrocopter and its pilot much be certified and licensed by FAA before the craft may be lawfully flown. More will be said anon regarding rules and regulations governing gyrocopters to fit them for airworthiness certification.

Plaintiff, a rated pilot since 1962, clipped a magazing coupon and sent it to defendant together with his $3 check dated January 13, 1966. In return he received a three-dimensional drawing of a Model B--8M gyrocopter, an illustrated brochure on gyrogliders and gyrocopters, a Bensen catalog for Winter 1966, a pamphlet concerning Bensen B--8M Gyrocopter Design Information, and a photograph of a gyrocopter in flight. On January 21, 1966, plaintiff wrote a $1,095 check to cover his order for a complete material gyrocopter kit 8M--KCAX. However, before this order was shipped, plaintiff became 'excited about it * * * and I though * * * here may be a chance to get into something that might make some money, so * * * I got on the telephone and called (defendant's sales manager) to inquire * * * (if) a dealership might be available * * * (and) we established that this dealership thing might work out * * * so I subsequently asked him to cancel the original order and apply that money toward the dealer order.' A $2,907 check dated February 8, 1966, was sent defendant and this, added to the $1,095 previously remitted, paid a total of $4,002 for 'dealer orders one and two.' At the time plaintiff placed the dealer order, the only representations made to him by defendant concerning the gyroglider and gyrocopter, and on which he relies to make a case in this matter, were as contained in the literature sent him in exchange for the coupon and $3 check. The illustrated brochure contained, inter alia, the statements, 'Factory Finished Kits will get you in the air quicker!' and 'The B--8M Gyrocopter can be built from Construction Plans and Kits (similar to the above) by do-it-yourself homebuilders for a fraction of the cost of the finished article. It is recommended that you first build the craft as a Gyroglider; after flying it as a Glider, you can convert it into a Gyrocopter by adding the engine.' Statements of similar import are contained in the design information pamphlet.

Although plaintiff testified that when he placed his initial order he had no 'knowledge concerning what it takes to fly an amateur-built aircraft,' he candidly admitted, 'it's relatively common knowledge that anything in free flight has to be certified * * * we know that it's a government regulation that a machine that flies in free flight, at one time or another must be licensed * * * (and it) is a fact' that before he made his purchase he knew an airworthiness certificate was required for the gyrocopter before it could be lawfully flown.

Dealer orders one and two consisted of 'maybe 20' boxes of materials, 10 or 12 sets of manuals and plans, and one 90-horsepower McCullough engine. This material constituted one two-place gyroglider finished kit, one complete finished gyrocopter kit, and one complete unfinished or raw material gyrocopter kit. Upon arrival of the orders plaintiff consulted the manuals for instruction on constructing the gyroglider and gyrocopter. Plaintiff related: 'It becomes obvious very early in the game when you uncrate these materials that those two manuals have nothing to do with what you are trying to do. * * * The first page tells you how to lay it out and how to drill the holes, and all this, and you open up your (prefabricated) kit and it has in there the materials that are already laid out and the holes already drilled. * * * (I looked in the manuals) far enough to realize that I had neither the knowledge nor the equipment to build anything along those lines (from the unfinished or raw materials kit.)' Thereafter, plaintiff assembled the gyroglider from the prefinished kit and successfully flew it. He then assembled the gyrocopter from the prefinished kit and requested FAA to certificate it. A general aviation maintenance inspector for FAA viewed the gyrocopter sometime during the last two weeks of April 1966, and refused certification when plaintiff told him, 'Well, I just nailed together the erector set type of kit.'

FAR 21.191 was stipulated to be a federal aviation regulation which 'is in force and effect' and applicable to certification of amateur-built aircraft and the limitations and conditions prescribed by the Administrator for safe operation. The FAA agent who refused to certificate the gyrocopter testified, at plaintiff's call, to interpret FAR 21.191 and explain 'what is required to obtain a certificate for an amateur-built aircraft under that regulation.' The agent advised the jury a gyrocopter completely assembled from prefabricated components or prefabricated kits, i.e., kits which involve assembly operations only, are not eligible for certification, and this is why he refused to certificate the gyrocopter assembled by plaintiff. For a gyrocopter to qualify for airworthiness certification as an amateur-built aircraft under regulations of the FAA, the agent said a major portion or at least 51 percent of the components and parts use had to have been fabricated by the amateur builder from raw materials. If, the agent testified, plaintiff had fabricated 51 percent...