Murray v. Bensen Aircraft Corp., 449

• Decision Date: 14 June 1963
• Docket Number: No. 449,449
• Citation: 259 N.C. 638,131 S.E.2d 367
• Parties: Robert A. MURRAY v. BENSEN AIRCRAFT CORPORATION.
• Court: North Carolina Supreme Court

Page 367

131 S.E.2d 367

259 N.C. 638

Robert A. MURRAY v. BENSEN AIRCRAFT CORPORATION.

No. 449

Supreme Court of North Carolina.

June 14, 1963

Warren C. Stack by James L. Cole, Charlotte, for plaintiff appellant.

Purrington & Culbertson by John K. Culbertson, Raleigh, for defendant appellee.

RODMAN, Justice.

The basic facts on which plaintiff relies to support his claim for damages are stated in his first cause of action and restated in his second cause.

Summarized, the facts stated in the second cause of action are:

Defendant, a domestic corporation has its place of business in Wake County, N. C.; it is 'engaged in the business of designing, manufacturing and selling various aeronautical machines, devices, crafts and products associated with the aviation industry'; it designed, manufactured, and sold 'a rotary-wing, one-man rotor-craft under the nomenclature and trade name of Bensen Model B-7 'Gyro-glider"'; on 1 June 1961 plaintiff purchased a new gyroglider in the original carton in which it was shipped from defendant's plant. It was packaged in two sections, one containing the glider body, and the other containing the rotor blades designed for a tachment to the body. 'Prior to the purchase by the plaintiff of the particular Bensen Model B-7 'Gyroglider,' the corporate defendant issued express representations and warranties by advertisement in national publications that the plaintiff and others of the consumer public could purchase and use the Bensen Model B-7 'Gyro-glider' for the intended purpose of rotary flight and in complete safety to the plaintiff and other members of the consumer public.' (Attached to the complaint is an exhibit consisting of a statement signed in defendant's name by its president and a writing captioned: 'QUESTIONS AND ANSWERS ABOUT BENSEN MODEL B-7M GYRO-COPTER.' He relies on this exhibit to establish the asserted warranties.)

Plaintiff, a resident of Los Angeles County, California, on 3 June 1961, transported the gyroglider to El Mirage, Dry Lake, California, where he assembled the parts in accordance with written instructions prepared by the manufacturer.

Plaintiff explains how the glider operates: It must be towed at a minimum speed of 20 m. p. h.; when that speed has been reached, the rotor blades begin operating; the tow line is then released; lateral movement of the glider is by means of rudders; vertical movements are produced by an overhead control stick in the shape of an inverted T.

Following the assembly of the parts by plaintiff, he made three airborne flights. The first two such flights were completely successful. On the third flight he 'ascended to the altitude of approximately 100 feet, at which time the tow line was released and the plaintiff proceeded with his flight with the rotor blades section furnishing the means of flight potential; and suddenly and without warning the 'Gyro-glider' rapidly lost 25 feet of altitude in what is generally referred to as a nosedive, following which the glider continued in a line vertical to the ground and proceeded to nosedive into the ground, striking the ground with force and violence resulting in the 'Gyro-glider' being demolished and the plaintiff sustaining painful, critical and permanent injuries.'

Plaintiff is an experienced aviator and 'has logged over 200 hours in various types of airplanes plus approximately four hours' instruction in gliders. ' The published statements amounted to 'express warranties as to the mechanical fitness of the 'Gyro-glider' * * * that the particular Model B-7 'Gyro-glider' purchased by the plaintiff was not air-worthy as the defective materials or defective design, or both, in the rotor blade section would bind or freeze with use causing the plaintiff or other users of the 'Gyro-glider' to lose all control over the 'Gyro-glider' while it was airborne.'

What laws should be applied to the alleged facts to determine defendant's liability for the asserted breach of warranty? Plaintiff contends the law of California is controlling. He bases this contention on two grounds: First, the law of the state where the injury occurred determines whether an act is a tort or breaches a contract; second, we should infer from the facts alleged, i. e., his residence, the date of purchase, 1 June 1961, and use of the purchased article at Dry Lake, California, that the parts were purchased in California.

Plaintiff correctly states the law with respect to acts assertedly tortious. Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288, and cases there cited. But the rule is different with respect to the interpretation of contracts and what constitutes a breach thereof. Roomy v. Allstate Ins. Co., 256 N.C. 318, 123 S.E.2d 817; Handley Motor Co. v. Wood, 237 N.C. 318, 75 S.E.2d 312; Price v. Goodman, 226 N.C. 223, 37 S.E.2d 592; Bundy v. Commercial Credit Co., 200 N.C. 511, 157 S.E. 860.

We are not willing in this day and time, when an experienced aviator such as plaintiff can travel from Los Anggles to any part of the continental United States in a few hours, to assume a fact which plaintiff has not alleged and may not be willing to allege. In the absence of factual allegations calling for the application of a different rule of law, we think it proper in a suit brought in this state to apply the law of this state in determining whether or not plaintiff has alleged a cause of action.

What is that law? The word 'warranty' by definition implies a contractual relation between a party making a warranty and the beneficiary of the warranty. Bobbitt, J., said in ...