LEVET, District Judge.
The defendant, Republic Aviation Corporation (hereinafter designated as "Republic"), has moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. for an order dismissing the second alleged cause of action in the complaint for the failure to state a claim upon which relief can be granted. The question involved is whether this claim, which is predicated upon the breach of an implied warranty of quality and fitness, must be dismissed upon the ground that there was lack of privity between plaintiff and the defendant.
The plaintiff brings this action to recover for personal injuries sustained by him in the crash of an aircraft, commonly known as a "SeaBee," manufactured and sold by the defendant Republic. At the time of the crash the plaintiff was riding as a passenger in the aircraft, which was owned and operated by his employer, Precision Automatic Company. The crash occurred during a take-off from Austin Lake Airport, Kalamazoo, Michigan on April 29, 1957.
The first cause of action is based upon negligence and is not involved in this motion.
The second cause of action is founded upon the breach of an implied warranty of quality and fitness. The defendant
Since the accident happened in Michigan, the New York Conflict of Laws Rule requires that the substantive law of the State of Michigan be applied. See Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334 (1948); Hunter v. Derby Foods, Inc., 2 Cir., 1940, 110 F.2d 970, 133 A.L.R. 255; Goldberg v. American Airlines, Inc., Supreme Court, New York County, 1960, Steuer, J., 23 Misc.2d 215, 199 N.Y.S.2d 134.
The Michigan Supreme Court in an opinion written by Mr. Justice Voelker, dated June 12, 1958, rejected the requirement of privity in an action for breach of an implied warranty against a manufacturer. Spence v. Three Rivers Builders & Masonry Supply, Inc., 1958, 353 Mich. 120, 90 N.W.2d 873.
As stated by Mr. Justice Voelker in the Spence case, supra:
Justice Voelker in the same case further commented:
The defendant asserts that the Spence case, supra, was decided in 1958, which was after the date of the accident referred to in the complaint herein and which occurred on April 29, 1957. The defendant argues that at the time of the accident the Spence case was not the law of Michigan and does not apply retroactively to an accident occurring prior to the Spence decision.
An examination of the record in the Spence case, supra, reveals that the cause of action of which plaintiff complained in her declaration was based on a sale of cinder blocks in 1953, with the defects discovered in 1954, which was some three years before the date of the airplane accident on which the present claim is based.
The law of Michigan applicable to the case of the plaintiff in this court is the law declared in the Spence case. I know of no basis of discrimination pertinent here. The present law of Michigan appears to require no privity.
It must be noted that the question here involved is not the nature of liability; that is the province of the trial court. The sole question is whether the plaintiff is precluded from attempting to assert a claim against the manufacturer because of the absence of a direct contractual relationship or privity with such a defendant. As heretofore indicated, the gravamen of the claim asserted by the plaintiff and attacked by the defendant is basically tort—the violation of a duty to a person such as the plaintiff. This motion tests solely the right of the plaintiff to invoke such a claim.
Obviously, the trial court has the duty of determining the questions of proximate cause, the nature of the liability, the relationship of manufacturer and operator, the effect of maintenance and any other relevant factual issues.
It may be argued that the determination that privity is not required is a drastic innovation. The progressive decline of the older rule, based as it was on an infirm and fallacious foundation, is clearly evident. The fact that a manufacturer of an aircraft whose plant is located in Connecticut, for instance, may become involved because of a disaster happening in Michigan or in Texas, may have unfortunate aspects, but that is not determinative of the question at issue. This happens in respect to other obligations. The fact that modern life and developments, such as transportation, have taken on complex relationships is no anomaly. With such relationships go correspondingly complex responsibilities. If life is complex, so are the laws of human relationships, which are the results thereof.
The Spence case, supra, and the authorities cited therein recognize the fallacy of the rationale supporting the privity requirement and the liberal trend to abrogate the privity requirement.
The argument against the requisite of privity may be summarized as follows:
1. The decisional approach which requires privity in breach of implied warranty actions is based upon fallacious reasoning.
2. While some courts have followed the earlier cases requiring privity, the fallacy of this approach has become apparent in many jurisdictions and the privity doctrine has been discarded in numerous cases involving food.
3. The requirement of privity in negligence causes of action has been discarded, particularly in cases where the product involved is "a thing of danger."
4. The same considerations which have prompted the demise of the privity requisite in negligence actions and in implied warranty actions involving food are present in this breach of warranty action involving an aircraft. The nature of this product is one which may well place life and limb in danger if it is defective.
5. There has been no logical or realistic reason advanced why privity should be retained in a breach of implied warranty case. The Spence case, supra, and the other cases cited herein indicate that the definite and persuasive trend is toward the abrogation of this anachronism.
Accordingly, the defendant's motion is denied.