56 Mich. App. 271 | Mich. Ct. App. | 1974
This is Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965); and Bronson v J.L. Hudson Co, 376 Mich 98; 135 NW2d 388 (1965), revisited.*
Plaintiff is an airplane owner and a licensed pilot. He bought a new motor for his aircraft from defendant.
It malfunctioned in flight, crashed and was a total loss. The owner-pilot survived.
The plane was insured for $13,000 by plaintiff-insurer with a $300 deductible clause. The insurer sued for the loss it paid. The owner originally only sued for his deductible amount and unspecified consequential damages.
After the crash one Maurice McCubbin, a licensed aircraft engineer and an agent for the insurer, examined the wreckage. In a deposition, read to the jury without objection to so doing, he concluded that the crash was caused in his opinion by "a faulty piston which disintegrated and oil starved the whole motor”. He further concluded in
It is undisputed that the engine had been operated for 179.8 flying hours since installation and 21.6 flying hours since its last inspection. The record neither contains evidence of nor suggests abuse of the plane, stunting nor any weather conditions which were causally connected with the crash.
It is further of record that the piston which failed was not the one designed for that particular block.
Defendant moved for a directed verdict. The trial court granted it.
In granting the motion the trial court held in part:
"There is no testimony that a piston had not been changed someplace subsequent to the time the new engine was put in the hull of this plane. Now, it is apparent there were certain other persons who had inspected and had control of this particular aircraft— the last inspection having been made with an oil change some 21 hours, 21.6 hours before the problem arose. The aircraft had flown 179.8 tachometer hours before the so-called difficulty, or this engine stopped turning.”
These may very well have been legitimate defenses of fact. They are not controlling defenses of law, mandating or supporting a directed verdict for defendant.
Where competent, admissible evidence not inherently incredible nor completely discredited on cross-examination creates a reasonable inference of negligence or breach of implied warranty, it is
Other questions are raised on appeal. They are likely to arise again if the case is retried. Upon the truncated record and for lack of specificity we cannot decide them. We mention them so that the parties may well be aware that we considered them. They are inter alia the amendments to the complaint asserting damages other than the $300 deductible figure; the viability of a claim for loss of profits under an alleged contract involving the use of the plane; possible mitigation of damages; the possible involvement of the statute of frauds, the statute of limitations and procedural rulings on claimed violation of court rules relating to amendments and failure to comply with the rules relating to interrogatories.
These we leave to reconsideration of the learned trial judge in the event of a new trial.
For the reasons herein specified we reverse and remand with the grant of a new trial.
Costs to the plaintiffs.
The authoring judge on this panel lias good reason to realize that the majority holding in those cases is the settled law of this State.
