Nicklaus v. Hughes Tool Company

• Decision Date: 27 October 1969
• Docket Number: No. 19490.,19490.
• Citation: 417 F.2d 983
• Parties: G. L. NICKLAUS, Trustee for Helicopters, Inc., Appellant, v. HUGHES TOOL COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

417 F.2d 983 (1969)

G. L. NICKLAUS, Trustee for Helicopters, Inc., Appellant, v. HUGHES TOOL COMPANY, Appellee.

No. 19490.

United States Court of Appeals Eighth Circuit.

October 27, 1969.

Jeff Davis, Jr., of McMillen, Teague, Bramhall & Davis, Little Rock, Ark., for appellant.

Robert S. Lindsey, of Wright, Lindsey & Jennings, Little Rock, Ark., for appellee.

Before MATTHES, GIBSON and BRIGHT, Circuit Judges.

MATTHES, Circuit Judge.

This is an appeal from the judgment of the district court dismissing appellant's action on the merits after a trial before the court. We affirm.

The relevant background facts are not in dispute. Helicopters, Inc., was an Arkansas corporation and the authorized dealer for the sale of helicopters manufactured by Hughes Tool Company (appellee), a Delaware corporation having its principal place of business in Houston, Texas.

Following manufacture, extensive flight testing, and experimentation by appellee, all in California, the helicopter involved in this litigation was purchased by Helicopters, Inc., on or about July 17, 1965. It was a prototype model especially redesigned and refitted for use in agricultural dusting and spraying. On August 13, 1965, while being operated by an employee of Helicopters, Inc., the aircraft crash landed in a field near Briscoe, Arkansas. The helicopter had been flown a total of 173 hours.

Subsequently, Helicopters, Inc., was adjudged a bankrupt and G. L. Nicklaus was appointed trustee. He filed this action on December 16, 1966.¹ Recovery of damages to the helicopter was sought on two grounds: negligence and breach of an implied warranty of fitness.

Investigations following the accident revealed that the crash was caused by a complete loss of engine power shortly after takeoff. The investigation also disclosed that one of the metal support clamps affixed to the underside of the aircraft's frame through which passed a bundle of wires, including two magneto ignition wires, was bare and slightly distorted. Metal clamps of the type involved are supplied to appellee by another company. The clamps have a rubber cushion, referred to in the record as a grommet, covering the inside and both edges. The grommet is designed to protect against abrasion of the insulation on the electrical and power wires which pass through the clamp. Appellee concedes that construction of the helicopter without the protective grommet would not be acceptable manufacturing practice.

The post-crash investigation also revealed that the insulation on both of the magneto ignition wires was frayed and the bare conductors were thus exposed. It stands undisputed that if both of the magneto wires simultaneously came in contact with the metal frame of the helicopter a shorting or grounding would result and cause complete engine failure.

Appellant's position in the district court and here is that by reason of the absence of the protective grommet the normal vibration of the helicopter in flight caused fraying and wearing away of the insulation of the dual magneto wires so that the exposed conductors were permitted to come in contact with the metal frame; that this defect (absence of grommet) occurred during the manufacture or flight testing by appellee, before the sale and delivery to Helicopters, Inc.; and that it was the proximate cause of the crash.

Appellee denied liability, asserting that the required thorough testing and inspection procedures employed by it after the craft had been assembled failed to reveal the defect in question, and that such inspection procedures rendered it virtually impossible for such a defect to go undiscovered. Additionally, the Manager of Quality and Reliability for appellee, Benoni F. Durall, testified that he had conducted a test in which he had simulated maximum helicopter vibration on a similar bundle of wires passing through an unprotected metal clamp for a period of time greatly in excess of 173 hours. The negative results of this test led him to testify that a missing grommet could not have caused such complete and equal fraying of the heavy insulation on the dual magneto wires. Finally, appellee asserted that Helicopters, Inc., was not without contervailing fault. Approximately two months prior to the crash, and one month prior to the sale of the helicopter, a maintenance supervisor in the employ of Helicopters, Inc., performed a 100-hour inspection of the particular helicopter at appellee's request and expense. This inspection required a thorough check of all equipment and systems on the craft, including "all engine electrical wiring for damage and security." The supervisor certified the helicopter to be airworthy. Appellee therefore maintained that, even if the grommet were omitted during the manufacturing process, a thorough 100-hour inspection would have disclosed the defect and the appellant cannot rely upon any warranty as to patent defects.

In resolving the case, the district court specifically found that appellant had not shown by a preponderance of the evidence (1) that a simultaneous "shorting" or "grounding" of the two magneto wires was the result of a missing grommet,² and (2) that the helicopter was manufactured and assembled with a clamp which did not have its normal rubber grommet attached. The court further found that the 100-hour inspection by appellant would have included inspecting the electrical wiring, proper inspecting would have disclosed the missing grommet, and the defect would have been corrected.³

Initially, we take note of basic principles of law applicable to this case.⁴ A manufacturer has a duty to exercise reasonable skill and care in the design and manufacture of its product, commensurate with the risk of harm flowing from normal use of that product. Larsen v. General Motors Corp., 391 F. 2d 495 (8th Cir. 1968); Ford Motor Co. v. Zahn, 265 F.2d 729 (8th Cir. 1959); Ensign-Bickford Co. v. Reeves, 95 F.2d 190 (8th Cir. 1938); MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N. E. 1050, L.R.A.1916F, 696. This duty also binds the manufacturer with respect to component parts incorporated into its final product, but manufactured by another. Ford Motor Co. v. Mathis, 322 F.2d 267, 3 A.L.R.3d 1002 (5th Cir. 1963); Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961) (applying California law). As a necessary corollary, a manufacturer has an affirmative duty to make such tests and inspections, during and after the process of manufacture, which are commensurate with the dangers involved in the intended use of the product. Ensign-Bickford Co. v. Reeves, supra, 95 F.2d at 194; C. D. Herme, Inc. v. R. C. Tway Co., 294 S.W. 2d 534 (Ky.1956); Reasor-Hill Corp. v. Kennedy, 224 Ark. 248, 272 S.W.2d 685 (1954); American Radiator & Standard Sanitary Corp. v. Fix, 200 F.2d 529 (8th Cir. 1952). See generally Annot., Manufacturer's Duty to Test or Inspect as Affecting His Liability for Product-Caused Injury, 6 A.L.R.3d 91 (1966).

Where, as here, the plaintiff's claim against the manufacturer sounds in both negligence and breach of implied warranty, he must establish by a preponderance of the evidence these basic elements: (1) that the product was defectively designed or manufactured, Hurley v. Beech Aircraft Corp., 355 F. 2d 517 (7th Cir. 1966); United States Rubber Co. v. Bauer, 319 F.2d 463 (8th Cir. 1963); (2) that the defect was the proximate cause of the damage complained of, Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962); Stone v. Farmington Aviation Corp., 360 Mo. 1015, 232 S.W.2d 495 (1950) (Stone I) (negligence), reversed after retrial, 363 Mo. 803, 253 S.W.2d 810 (1953) (Stone II) (warranty); and (3) that the defect existed at the time the manufacturer parted with possession of the product, Swain v. Boeing Airplane Co., 337 F.2d 940 (2d Cir. 1964); Stone v. Farmington Aviation Corp., supra (Stone II); see Annot., 78 A.L.R.2d 460, 498n.3 (1961); 1 Hursh, American Law of Products Liability § 1:14n.14 (1961). To permit recovery for negligent manufacture, ordinarily plaintiff must show, in addition to lack of reasonable skill and care in the process of manufacture, that the manufacturer failed to make a reasonable inspection or test to discover defects. Ford Motor Co. v. Zahn, supra, 265 F.2d at 731-732 and authorities there cited. See Edison v. Lewis Manufacturing Co., 168 Cal. App.2d 429, 336 P.2d 286 (1959).⁵

This brings us to what we regard as the dispositive question, i. e., whether the evidence leaves no room for difference of...