Langham v. Beech Aircraft Corp.

• Decision Date: 18 November 1975
• Docket Number: No. 10586,10586
• Citation: 1975 NMSC 64,543 P.2d 484,88 N.M. 516
• Parties: Juliamerie LANGHAM, Executrix of the Last Will and Testament of Wright H. Langham, Deceased, Appellees, v. BEECH AIRCRAFT CORPORATION, a Delaware Corporation, Appellants.
• Court: New Mexico Supreme Court

Page 484

543 P.2d 484

88 N.M. 516

Juliamerie LANGHAM, Executrix of the Last Will and Testament of Wright H. Langham, Deceased, Appellees, v. BEECH AIRCRAFT CORPORATION, a Delaware Corporation, Appellants.

No. 10586.

Supreme Court of New Mexico.

Nov. 18, 1975.

Rehearing Denied Dec. 10, 1975.

Rodey, Dickason, Sloan, Akin & Robb, Bruce D. Hall, Albuquerque, for appellant Beech Aircraft.

Willard F. Kitts, Albuquerque, for appellees Frye.

Jones, Gallegos, Snead & Wertheim, Jerry Wertheim, Steven L. Tucker, Santa Fe, for appellees.

OPINION

OMAN, Justice.

His cause has been certified to this court by the United States Court of Appeals for the Tenth Circuit, pursuant to § 16--2--7, N.M.S.A.1953 (Interim Supp., pt. 1, 1975), which provides in pertinent part:

'The Supreme Court may answer by written opinion questions certified to it by the Supreme Court of the United States, any circuit court of appeals of the United States, the court of appeals of the District of Columbia, any district court of the United States or the district court of the District of Columbia if:

'A. the questions invole propositions of New Mexico law which are determinative of the cause before the federal court; and

'B. There are no controlling precedents in decisions of the New Mexico Supreme Court or the New Mexico court of appeals.'

It is recited in the order of certification that there are no controlling precedents in the decisions of this court or the New Mexico Court of Appeals upon the following proposition of New Mexico law:

'Can the manufacturer of a 'public conveyance' be held liable for damages where the passengers died as a result of defects in the conveyance; and does the remedy provided in N.M.Stat.Ann. § 22--20--4 (§ 22--20--4, N.M.S.A.1953 (Supp.1973)) ¹ against the 'owner' of a defective public conveyance provide the only remedy?'

We agree that there are no controlling decisional precedents by the New Mexico courts upon this question. However, as will hereinafter be discussed, there is language in the decisions of this court and of the Court of Appeals for the Tenth Circuit which suggests that the remedy provided in § 22--20--4, supra, against 'the owner of a defective conveyance' is the exclusive remedy, and that the 'manufacturer of the defective public conveyance' is not subject to liability for a wrongful death caused or contributed to by the defective manufacture of the vehicle. Very briefly, the facts giving rise to the certification to this court by the Court of Appeals are:

(1) Suits seeking damages for the alleged wrongful death of seven passengers in an airplane were filed in the United States District Court for the District of New Mexico. One of these suits was against Beech Aircraft Corporation (Beech) alone, since these plaintiffs had settled with Ross Aviation, Inc. (Ross), owner and operator of the aircraft. The other suit was against both Ross and Beech. Since then, the plaintiff in this suit has now settled with Ross.

(2) Beech was the manufacturer of the airplane and Ross was the owner and operator thereof at the time of its crash on takeoff from the Albuquerque International Airport.

(3) The Court of Appeals has already concluded that the airplane was a 'public conveyance' and the decedents were 'passenger's therein at the time of the crash which resulted in their deaths. Langham v. Beech Aircraft Corporation, No. 74--1650 (10th Cir., Aug. 7, 1975). Thus, suits could properly have been brought against Ross pursuant to § 22--20--4, supra, which provides in pertinent part:

'Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stage coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from injury resulting from or occasioned by any defect or insufficiency in any railroad or any part threof, or in any locomotive or car, or in any stage coach or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance, at the time any injury is received resulting from or occasioned by any defect, insufficiency, negligence, unskillfulness or criminal intent above declared, shall be liable in damages * * *.'

(4) Plaintiffs seek recovry against Beech as the manufacturer of the airplane upon the theories of (1) negligence in design, manufacture, assembly, inspection, and instructions for use; (2) breach of warranty; and (3) strict liability in tort.

Although it is suggested that plaintiffs rely upon a right to bring suit for recovery from Beech under § 22--20--4, supra, their real and clearly stated contention is that they are entitled to sue and recover from Beech under § 22--20--1, N.M.S.A.1953 (Vol. 5, 1954) which provides:

'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.'

The first question presented by the certification is whether Beech may be sued under the provisions of § 22--20--4, supra. We answer this question in the negative. The relevant language of that statute, as shown above, is:

'(T)he corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance, at the time any injury is received resulting from or occasioned by any defect, insufficiency, negligence, unskillfulness or criminal intent above declared, shall be liable in damages * * *.' (emphasis added).

Although the language of this statute was slightly different at the time of our opinion in Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938), these differences are of no significance insofar as a resolution of the question now under consideration is concerned. Also, the question there presented was whether the cause of action survived the wrongdoer, who was the owner and operator of the public conveyance. However, the answer to this question and to the question we are now considering depends entirely upon who may be sued under § 22--20--4, supra. In the Ickes case, in paraphrasing language of the Missouri Supreme Court in Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73 (1907), we held:

'The first syllabus in that case (Bates v. Sylvester) dealing with this statute reads:

"Where a statute gives the cause of action, and designates the persons who may sue, they alone are authorized to bring suit.'

'We epitomize our holding as applied to the point under consideration by paraphrasing same to read:

"Where a statute gives the cause of action and designates the persons who may be used, they alone are authorized to be sued." (emphasis added).

The following language from our opinion, in In re Reilly's Estate, 63 N.M. 352, 357, 319 P.2d 1069, 1072 (1957), confirms this position:

'Since from the express language of § 22--20--4, supra, an action thereunder is limited to recovery only from the employer common carrier, * * * no recovery thereunder may be had against the pilot who may be in charge of the airplane 'public conveyance', as driver.'

Clearly the language of § 22--20--4, supra, limits those from whom recovery may be had thereunder to the 'employer' of the person whose negligence, unskillfulness or criminal intent in running, conducting, managing or driving the public conveyance caused or occasioned death or to the 'owner' of the public conveyance. Beech was neither such 'employer' nor 'owner.'

Although the issue in Tilly v. Flippin, 237 F.2d 364 (10th Cir. 1956), as in In re Reilly's Estate, supra, was broader than the one we are now considering, in that in those cases the issue also embraced the question of whether or not the 'employee-driver' of the vehicle or public conveyance could be sued under § 22--20--1, supra, nevertheless, the result reached in the Flippin case is consistent with our present holding that Beech cannot be sued under § 22--20--4, supra, since it was not an 'employer' or 'owner' within the contemplation of those terms as used in that statute.

We now consider whether Beech can be sued under § 22--20--1, supra. It contends that since § 22--20--4, supra, gives plaintiffs a cause of action against Ross as the 'employer' and 'owner' of a 'public conveyance,' this is plaintiffs' exclusive remedy and they may not recover against Beech under § 22--20--1, supra. We disagree.

As above stated, there is language in some of the opinions of the Court of Appeals for the Tenth Circuit and this court which supports Beech's position.

In Tilly v. Flippin, supra, it was stated:

'(W)e think the implications of the decisions by the New Mexico courts, and by this court, lead to the conclusion that the remedy provided for in § 22--20--4 is an exception to the general death statute (§ 22--20--1, supra) and is exclusive when death is caused under facts bringing the case within that section.' (emphasis added).

This language was quoted with approval by this court in In re Reilly's Estate, supra. Thre is also language found in other cases which support this position. See, e.g., Schloss v. Matteucci, 260 F.2d 16 (10th Cir. 1958); Mallory v. Pioneer...