Hinton v. Republic Aviation Corporation

• Decision Date: 14 December 1959
• Citation: 180 F. Supp. 31
• Parties: Marilynn HINTON; Marilynn Darcy Hinton, infant, by and through her Guardian ad Litem, Marilynn Hinton; Verna Daryn Hinton, an infant, by and through her Guardian ad Litem, Marilynn Hinton, Edgar Raymond Hinton, an infant, by and through his Guardian ad Litem, Marilynn Hinton, Richard E. Crumley, Pamela Rochelle Crumley, an infant, by and through her Guardian ad Litem, Richard E. Crumley, and Eric Ramon Crumley, an infant, by and through his Guardian ad Litem, Richard E. Crumley, Plaintiffs, v. REPUBLIC AVIATION CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

180 F. Supp. 31

Marilynn HINTON; Marilynn Darcy Hinton, infant, by and through her Guardian ad Litem, Marilynn Hinton; Verna Daryn Hinton, an infant, by and through her Guardian ad Litem, Marilynn Hinton, Edgar Raymond Hinton, an infant, by and through his Guardian ad Litem, Marilynn Hinton, Richard E. Crumley, Pamela Rochelle Crumley, an infant, by and through her Guardian ad Litem, Richard E. Crumley, and Eric Ramon Crumley, an infant, by and through his Guardian ad Litem, Richard E. Crumley, Plaintiffs, v. REPUBLIC AVIATION CORPORATION, Defendant.

United States District Court S. D. New York.

December 14, 1959.

Speiser, Quinn & O'Brien, New York City, for Plaintiffs. Robert A. Dwyer, New York City, of counsel.

Mendes & Mount, New York City, for defendant. Kenneth R. Thompson, George W. Clark, New York City, of counsel.

LEVET, District Judge.

Defendant, Republic Aviation Corporation, has moved to dismiss the second and fourth alleged causes of action set forth in the complaint upon the ground of failure to state claims upon which relief can be granted pursuant to Rule 12 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

The complaint involves a death action in which the plaintiffs' decedent was a passenger in an airplane allegedly produced by the defendant Republic Aviation Corporation. The death occurred in California. The first and third causes of action are based upon negligence and are not attacked here. The second and fourth causes of action are based upon alleged breach of warranty. By a stipulation made subsequent to the argument of this motion, dated December 2, 1959, the plaintiffs have amended the complaint in paragraph 12 at the end thereof to add the following words: "and that said aircraft was sold by defendant as aforesaid in the State of California." Another stipulation dated the same day, that is, December 2, 1959, provides that the court may decide the instant motion upon the complaint as amended by the foregoing stipulation.

The objections to the sufficiency of the claims set forth in the above-mentioned causes of action are two-fold:

1. That these causes of action are predicated upon alleged implied warranties in which there was no privity between plaintiffs' decedent and the defendant;

2. That Section 377 of the California Code of Civil Procedure, under which this action is brought, does not provide for any wrongful death action based upon breach of warranty.

The New York Conflict of Laws Rule appears to require that the substantive law of California be applied. The plaintiffs' decedent boarded the plane in California, the accident and death took place in California, and the sale of the plane by defendant to the original vendee is asserted to have occurred in California. Hence, under the causes of action attacked by this motion, the law of California is applicable. See Poplar v. Bourjois, Inc., 1948, 298 N.Y. 62, 80 N.E.2d 334; Hunter v. Derby Foods, Inc., 2 Cir., 1940, 110 F.2d 970, 133 A.L. R. 255.

Under California law, privity has been held to be not essential to recovery for breach of warranty of contract. In California the privity of contract doctrine was held not to apply to food (Klein v. Duchess Sandwich Co., 1939, 14 Cal.2d 272, 93 P.2d 799) nor to a bottle containing a soft drink (Escola v. Coca Cola Bottling Co. of Fresno, 1944, 24 Cal.2d 453, 150 P.2d 436 (Supreme Court of California). In the latter case Mr. Justice Traynor in concurring, wrote in part as follows:

"I concur in the judgment, but I believe the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440 established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer is responsible for an injury caused by such an article to any person who comes in lawful contact with it. Sheward v. Virtue, 20 Cal. 2d 410, 126 P.2d 345; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229, 34 P.2d 481. In these cases the source of the manufacturer's liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. * * *" 150 P.2d at pages 440-441.

"* * * Dangers to life and health inhere in other consumers' goods that are defective and there is no reason to differentiate them from the dangers of defective food products. See Bohlen, Studies in Torts, Basis of Affirmative Obligations, American Cases Upon The Liability of Manufacturers and Vendors of Personal Property, 109, 135; Llewellyn, On Warranty of Quality and Society, 36 Col.L.Rev. 699, 704, note 14; Prosser, Torts, p. 692." 150 P. 2d at page 442.

Mr. Justice Traynor reasserted this position in a concurring and dissenting opinion in Trust v. Arden Farms Co., 50 Cal.2d 217, 237, 324 P.2d 583, 595. In Peterson v. Lamb Rubber Co., Cal.App. August 28, 1959, 343 P.2d 261, the court appears to have endorsed the Traynor doctrine and to have virtually abrogated the privity of contract hurdle in an abrasive wheel case.

While in Young v. Aeroil Products Company, 9 Cir., 1957, 248 F.2d 185, the Circuit Court in an elevator case held that California law upheld privity requirements in all but food cases, Judge Barnes did state:

"* * * We are considering here an area of the law which is in a state of flux in California. The law on this subject is developing and dynamic. * * *" At page 190.

The Peterson case of 1959, supra, however, appears to definitely indicate California's determination to end the privity doctrine even in other activities than food. This appears, moreover, to be in accord with the trend elsewhere. See Arfons v. E. I. Du Pont De Nemours & Co., 2 Cir., 1958, 261 F.2d 434; B. F. Goodrich Company v. Hammond, 10 Cir., 1959, 269 F.2d 501.

In an extensive review of the doctrine of privity, particularly, it is true, of the New York cases, but with many references to other jurisdictions, it is urged that "the privity `bugaboo', historically unsound, should be permanently discarded." Parish v. Great Atlantic & Pacific Tea Co., 1958, 13 Misc.2d 33, 63, 177 N.Y. S.2d 7, 37.

As Prosser on Torts, 2nd Ed., comments: "Nearly a third of the American jurisdictions have broken away to some limited extent from the requirement of `privity of contract,' and have found some way to extend strict liability to the consumer." (P. 507.) Continuing on pages 508-509, the same author states:

"* * * two theories have emerged as predominant. One is that the original warranty of the seller `runs with the title,' as in the case of conveyances of land, and so extends even to a donee of the product. The other, and perhaps the sounder, is that the warranty is a matter of strict liability in tort, which does not depend upon a contract between the parties, and that it arises because the seller, in marketing his goods, has assumed such a responsibility toward any member of the consuming public who may be injured. On one theory or another, strict liability is now recognized in food cases in California, Florida, Illinois, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, and Washington, and possibly in Alabama, Arizona, and Kentucky."

In the negligence aspect to such cases as this, the courts have already extended liability to ultimate users and to those affected by the chattel. The MacPherson decision (1916, 217 N.Y. 382, 111 N.E. 1050) did not go beyond liability to the ultimate purchaser himself. Later cases have extended it to the purchaser's employees and other users of the chattel, to members of his family, to casual by-standers, and even to a later purchaser who buys second hand. The conclusion seems to be that the duty extends to anyone who may reasonably be expected to be in the vicinity of the chattel's probable use and to be endangered if it is defective. Prosser on Torts, 2nd Ed., p. 501 and cases there cited. See, for example, Carpini v. Pittsburgh & Weirton Bus Company, 3 Cir., 1954, 216 F.2d 404 (passenger on bus made by defendant).

The same extension seems to be rapidly developing in the field of breach of warranty. In The Law of Torts, Vol. 2, the authors, Harper and James, state:

"§ 28.16. Implied warranties: The requirement of privity. Many courts which have repudiated the requirement of privity, where recovery is based on negligence, nevertheless refuse to ground liability on warranty except in actions by the buyer against the person who sold the dangerous article to him. This rule makes warranty unavailable even to other members of the buyer's family; and a buyer himself may invoke it only against his immediate seller, and not, for example, against the maker of the goods unless the maker sold them directly to the plaintiff. The warranty is thus regarded as `in the nature of a contract of personal indemnity with the original purchaser. It does not `run with the goods.'"

"Perhaps such a limitation corresponds to the reasonable expectations of commercial buyers and sellers when they are concerned with trade losses. But where commodities are dangerous to life and health, society's interest transcends that of protecting reasonable business expectations. It extends to

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