Livesley v. Continental Motors Corp., 45

• Decision Date: 02 October 1951
• Docket Number: No. 45,45
• Parties: LIVESLEY v. CONTINENTAL MOTORS CORP.
• Court: Michigan Supreme Court

Page 365

49 N.W.2d 365

331 Mich. 434

LIVESLEY v. CONTINENTAL MOTORS CORP.

No. 45.

Supreme Court of Michigan.

Oct. 2, 1951.

Alexis J. Rogoski, John B. Olsen and Robert Bunker Rogoski, Muskegon, for plaintiff and appellee.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendant and appellant.

Before the Entire Bench.

REID, Chief Justice.

This action based on claimed negligence was brought to recover for damages to an airplane resulting from a crash landing which occurred on April 3, 1948, near Salem, Oregon. Contributory negligence was waived by defendant. From a judgment on a jury's verdict for plaintiff, defendant appeals.

About two months before the crash landing, plaintiff bought from Salem Air Service a new two seater Cessna model 140 aircraft, equipped with a 90 h. p. Continental engine manufactured by defendant.

Plaintiff lives in Salem and used the airplane in connection with the affairs of two corporations which produce hops in Oregon and British Columbia. At the time of the accident, the engine had run a total of about 80 hours flying time.

While plaintiff on April 3, 1948 was flying back from British Columbia, he noticed a slight roughing of the engine when slightly south of Portland, but continued on for Salem. About 20 minutes later, the engine suddenly became very rough, there was a sharp noise, oil sprayed over the windshield and the engine became 'frozen;' plaintiff attempted to glide to a farm field, but the plane struck the edge of a ditch and nosed over. Damages to the plane were shown at $2,163.24. Plaintiff paid $656.23 rental of another airplane pending repairs.

Plaintiff's claim is based solely on negligence, respecting a connecting rod installed in the engine, hence our recent decision in Parsons Company v. Hall, 319 Mich. 240, 29 N.W.2d 676, involving only questions arising from violation of express warranty, is not of controlling importance.

Defendant bought the connecting rod in question from Atlas Drop Forge Company of Lansing, Michigan, hereinafter referred to as Atlas. Atlas bought the steel from Bethlehem Steel Company. Defendant incorporated in the engine in question, the connecting rod in question, sold the engine to Cessna Aircraft, and in accordance with the expectation of defendant the engine was to be incorporated into an aircraft. It was in fact incorporated into the aircraft in question which through intermediate dealers came into the hands of plaintiff.

While plaintiff charged in the declaration that the connecting rod, a controlling factor in plaintiff's case, was of insufficient strength to withstand the normal and foreseeable stress and strain, yet in the actual presentation of the case plaintiff aimed his proof solely at the question of latent defect in the connecting rod, and defendant's negligence relating to the claimed latent defect.

Plaintiff claims that defendant installed in the engine a connecting rod containing latent defect and neglected to take reasonable care to discover the latent defect and failed to warn plaintiff of a latent defect and failed and neglected to make sufficient test and inspection for the discovery of latent defect, all pertaining to the latent defect in the connecting rod in question. Plaintiff does not allege the defendant manufactured the connecting rod in a negligent manner.

Plaintiff claims that the connecting rod in question, because of the latent defect, broke during flight and that such break was the origin of the breakdown of the engine, causing the engine to 'freeze.'

Defendant claims that due to improper readjustments of nuts upon a stud or bolt fastening the cylinder to the crankcase deck, undue fatigue was caused to the nuts and bolts and that during the flight a developing fatigue caused the bolt fastening to give way and ultimately caused the entire fastenings of the cylinder to break and that on account of the breaking of the fastenings of the cylinder, the cylinder flew off and that the piston thrashing sidewise on the rapid movement of the connecting rod, pounded on the deck, made a distinct identifiable indentation on the deck, and caused the breaking off of the part (piston end) of the connecting rod which was connected with the piston. Defendant therefore claims that the improper adjustment of the bolts or studs which occurred after the airplane had been in actual flights and at a time when defendant was not in control of the airplane in question, was the actual cause of the 'freezing' of the engine and therefore of the crash landing.

Plaintiff claims that the defects which caused the breaking of the end of the connecting rod consisted of inclusion pits, so-called, which in this case are claimed by plaintiff to be non-metallic matter included in the steel.

It is undisputed that all steel contains inclusion pits, the weakening effect of which depends upon the concentration and size of such inclusion pits.

To detect the presence of such matter included in the steel, not apparent at the surface, there is in current use, according to the testimony shown on this trial, a test known as magnaflux, which was employed as a method of inspection followed by Continental Motors in making the parts in question and which method defendant's witness, Virgil Moser, aviation safety agent for Civil Aeronautics Administration, testified was a method which conformed to the standards required by the Civil Aeronautics Administration.

It must be considered that plaintiff because of the testimony he introduced recognized that the test by magnaflux is the standard and most efficient test to determine the presence or absence of inclusions such as plaintiff relies on.

No question was raised that the law of Oregon rather than of Michigan would control the question of liability. No Oregon case was cited to a different rule than what we arrive at. The engine in question was manufactured in Michigan and shipped from Michigan and out of defendant's control; the magnaflux test or want of it was something that occurred in Michigan. The parties submitted their case on the trial and on this appeal, apparently on the proposition that the Michigan law on torts governs liability if any of defendant.

The critical question on this appeal is whether plaintiff made a sufficient showing of negligence on the part of defendant in regard to making the magnaflux test or failing to make an x-ray test. Professor O. G. Paasche, a witness produced by the plaintiff, testified as to his qualification as a metallurgist and to his opinion that the connecting rod in question would have performed satisfactorily had the metal been clean and further, free from inclusions. This witness further on cross examination testified as follows:

'Q. The magnaflux testing is magnetic, is it not? A. That is correct.

'Q. Magnetic principles. Polarization, and so forth? A. It involves magnetizing the piece and flowing some magnetic particles over the surface, and at any defect these magnetic particles will gather to work around the defect.

'Q. You get the two poles of the magnet? A. Yes, whereever there is a defect, you get two poles of a magnet.

'Q. Would that be likely to show inclusions such as the larger ones shown in the plaintiff's exhibit C? A. I doubt that it would show inclusions that small. The photomicrograph is 100 diameters and I doubt that it would--the magnaflux would indicate that.'

Professor Paasche's opinion on cross examination in which the doubt that the magnaflux test would indicate the inclusions in question, stands as uncontradicted testimony in the case.

Plaintiff relies for proof of the negligence in question upon the testimony of witness Louis J. Haga, who is engaged in the business of doing general heat treating, which is a process in 'preparing metal' to do certain jobs. Pertaining to his examination of the metal at the place of the break in the connecting rod in question, he testified on direct examination as follows: 'When the part was examined under polarized light under somewhat more modern equipment, it indicated pretty definitely what looked like holes were definitely of a non-metallic nature and was in the metal itself. In my opinion the spots in the metal were non-metallic inclusions. I distinguished them from the bakelite mounting. The reason is under polarized light it was definitely evident that particles were there that were not bakelite. I was not able to identify the particles with exact certainty except that they were definitely non-metallic. I feel rather sure that those particles were oxide inclusions, and presumably iron oxide. Practically all the larger particles found were located right at or close to the edge, referred to as the fractured edge. I would consider that a defect in the metal. I should qualify that. I suppose it was a defect in the metal but possibly not inherent in the metal itself, possibly from adding something later. The effect of non-metallic inclusions of almost any sort is where stress is applied externally to the piece, in time with repeated stress you start a break. I would say those are definitely weaker points in the structure of the metal. From the appearance of these little spots, it didn't seem as though the inclusions were inherent in the metal as produced, that is as melted. They were not hangovers from the...