Thе 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, devises, crafts and products associated with the aviation industry”; it designed, manufactured, and sold “a rotary-wing, one-mаn 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 attachment to the body. “Prior to the purchase by the plaintiff of
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 apрroximately 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 withоut 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 procеeded 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 еxperienced aviator and “has logged over 200 hours in various types of airplanes plus approximately four hours’ instruction in gliders.” The published statements amounted tо “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 cоntends 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 аt Dry Lake, California, that the parts were purchased in California.
Plaintiff correctly states the law with respect to acts assertedly tortious.
Shaw v. Lee,
We are not willing in this day and time, when an experienced aviator such as plaintiff can travel from Los Angeles 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
What is that law? The word “warranty” by definition implies a cоntractual relation between a party .making a warranty and the beneficiary of the warranty.
Bobbitt, J.,
said in
Wyatt v. Equipment Co.,
It was urged in
Ward v. Sea Food Co.,
The rule announced and applied in the cases cited above is supported by the great weight of authority. Many cases are 'assembled in
Was there a contraсtual relationship between plaintiff and defendant which contained a warranty as to fitness? Nowhere in his complaint, either in the first cause of action based on nеgligence or on the second cause of action based on breach of contract has plaintiff said where, when, and from whom he purchased the parts whiсh he assembled to make a gyroglider. It may be inferred that he did not purchase from defendant because in bis brief he argues that he may maintain an action for breach of contract (warranty) notwithstanding the fact that he never had any contractual relationship with defendant.
Plaintiff incorporates in both his first and second causes of action allegations that defendant, in manufacturing and putting on the market gliders and parts to be assembled as gliders, failed to comply with Federal statutes designed to рromote safety. The violation of a statute designed to protect persons or property is a negligent act, and if such negligence proximately causes injury, the violator is liable.
Smith v. Metal Co.,
The court correctly concluded plaintiff failed to state facts sufficient to impose liability on defendant for breach of contraсtual obligations to him. The other allegations therein stated are not material
The court was in error, however, in ordering the second cause of action dismissed. The cause of action as stated was defective for failure to state sufficient facts, not because the facts stated affirmatively showed that plaintiff did not have a cause of action. The court should have allowed plaintiff an opportunity to amend so as to state, if he can, facts necessary to show defendant breached its contract with plaintiff.
The portion of the judgment sustaining the demurrer is affirmed, but the portion thereof dismissing the action is erroneous and should be stricken therefrom. It is so ordered. As so modified, the judgment is affirmed.
Walker v. Nicholson,
Modified and affirmed.