Appendix — Addabbo v. Curtiss-Wright Corp.

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fis ~ APPENDIX ne Ae

. a

Firs st Opinion of United States ‘Gout. of f Appeals

For ‘the Second Circuit |

UNITED STATES COURT OF APPEALS

Soar

For THE Seconp Crrcuir >

~~

oe .

{

* Nos.°423- 26—September, lpet a, 1968.

7 Decided May 19, 196)

eee April 8, 1969

* Doeket Nos. 32884-87 |

~ °

.

B- Pd . ‘

Branivr Airways,e-Lxc, Pump Appasso, and Morros D

as - Executor, of .the Estate of Maurice Berg;.

: ‘STEIN,

| deceased, " pe o:

a 3 Plaintife-Appellonts, ie

pet Sah ¢ ‘ —V.— (ieee ieee be |

= Ret see eee he 3Cu area. RIGHT - Couronattox,

Oven Sp JET i Sat a Neo - Defendant. Appellee.

Before: .

. SFR NDLY, Kavraax and Hays, A

: Cireuit Judges.

. Appeals from a judgment ard an order of the United

States District Court for the ‘Southern District of New

York,sIrying Ben Cooper, Judge, (1) dismissing the com-

: da.

So

a

Kirst Opinion of United States Court of Appeals

lor the’ Second: Cireuit

plaints of plaintiffs in-their actions in negligence, implied ;

Warranty and express: Warranty, arising out of an airplane

erash and (2) denying plaintiff Branift’s motion to amend

o its complaint by adding as plaintiffs the flight erew of the

airplane. . aor | ;

Reversed and remanded for trial on the negligence elaims |

of Branitt and Berg's estate, otherwise’ affirmed,

2

be. :

‘ Ww ILBUR FE. —_— Jn., New York, New York (Dow,

Stonebridge: & Wallace, New York, New -

a York), for Appellants Braniff and Addabbo.

W. Suensy Coates, Jr, New York, New York,

for Appellant Stein.

James: F. Coveuiix, New , York, New York

(Mendes and Mount, New York, New York,

Ernest D. Kennedy, of counsel, for A ppel-

lee. ; 7

ce ea) Hays, Circuit Judge:

Braniff Airways, Tne., Phillip Addabbo. and ects: D.

| Stein, as executor of the estate of Maurice Berg, appeal

. _ .from a judgment of*the United States District Court for

the Southern District of New York dismissing their com-

plaints i in actions against Curtiss-Wright Corporation aris-

ing out of an airplane crash that oceurred near Miami,

Florida on March 25, 1958. Braniff also appeals from an

order denying its motion to amend its ‘complaint by spe

as plaintiffs the flight crew of the airplane.

- 3a

First Opinion of United States Court. of pei

- Kor the Second Circ wit

» Branitl was the airline operating. the plane which

crashed. .Addabbo and Berg! were passengers on the plane.

T hie gravamen of the complaints is that the érash was

used by the failure of an engine manufactured by de-

fendant.. Defendant sold the ‘engine to Douglas Aircraft °

Co. about-July 17,,1956% Douglas installed it in a- Douglas

DOCTC aireraft Whith it sold:.to Braniff and delivered on—

Qetober 23, 1956. - Sometime later Braniff removed thd) ms

eugine from this aireraft and installed it in. the right

board position of the Douglas DC-7C which erashed.

Braniff’s ac tion is based upon negligence C and also breach

of both express and implied warranty. Bérg ‘sued originally»

only on the ground of negligence, Later he comme need a

“separate action in implied warkanty, his motion for leave

to amend his Complaint to assert that claim’ in the negli-

gence action having been denied. Berg v. Curtiss-Wright,

224 F.Supp. 236 (S.D.N.Y. 1963). Addabbo also sues on —

implied warranty. The ‘cases ‘were consolidated for trial

together with certain related actions.” A jury trial was

had, limited by agréément to. the issue of ability.

At the end of the plaintiff's ease, Curtiss-Wright made

several motions which fhe court collectively treated as a

motion pursuant to Rule 50(a) of the Federal Rules of

Civil Procedure for a directed verdict. Curtiss-Wright also

sought dismissal of the implied warranty claims on the

ground that they were barred by the statute of limitations.

The court directed a Aerdict for Curtiss-Wright onAhe i ‘B-..

sues of negligence afid breach of warr anty. It held that the

1 Berg died in the course of the litigation and Stein, executor of

his estate, was substituted.

2 One of the related actions was a suit by Braniff. against Douglas;

_ it was discontinued during the trial.

‘2

‘a |

4a

. « First bes sensu of United States Court of Appeals

lor the Second Circuit

daiow: of Ber g and Addabbo based on implied warranty 3

were barred by the statute of limitations.

We reverse. the determination of the district court as to

the claims sounding: in ne&ligenc e, holding that there was

sufficient ‘evidence of defendant’s negligence to require

submission of that issue to the’ jury. In all other respects

/ we affirm.’ a

I.

We are persuaded that there was sufficient evidence of

Curtiss-Wright’s negligence to take the case to the jury.

Examination of the engine in question after the crash

" revealed that the number eleven cylinder had failed, that it

had ‘separated from the engine, and that its wall: was

scuffed. A Curtiss-Wright employee testified that the.

cylinder wall showed evidence of “ladder cracking.” /There

was testimony that overheating of a cylinder ail Sais

scuffing. and that scuffing can lead to ladder cracking and

eventually to cracking of the cylinder barrel and its sep-

aration from the engine. A letter .that Curtiss-Wright °

_ wrote. to Braniff after the crash stated that the “cylinder

- barrel failures” occurring’ in the Curtiss-Wright engines

were “apparently the result of high combustion chamber |

temperatures.” 7

The evidence of Cactae: Wright's negligence ‘aitalied

the following:

(1) Curtiss- Wright increased the rating of the engines

of this so-called E A series (the type of engine involved

here) from the 3250 horsepower of the predecessor D A

series to 3400 horsepower. Gregory, an independent en-

gineering consultant, testified that the increase in horse-

power raised the eooner evens 3 in the cylinders, aggravating

“Ba :

- First Opinion of United States ‘Court of anpews

For the Second Circuit - ‘

the scufling problem and greatly affecting the reliability of

the engine. He stated that a reasonable horsepower to take ..

from the engine w ould have been 32350 rather than 3400.

(2) Curtiss-W right admitted that the fuel tajeeibon pump

timing used i in the type of ‘engine involved in the crash had

caused cylinder temperatures higher than those occurring

-in a similar Curtiss-Wright tngine that used a different

timing.

(3) Gregory testified that the use of flexible ‘fuel lines of

different lengths to take fuel to the -various cylinders

_caused the cylinders to receive unequal amounts of fuel,

resilting in a “large variation” in the temperatures of the

cylinders which produced scuffing i in the high bemaperecase

cylinders. :

(4) Gregory testified that the high temperatures in the

cylinder caused its separation and Ahlers, another expert

witness, testified that the failure of the cylinder caused the.

crash.

‘There was evidoice that Curtiss-Wright was aware of

the scuffing difficulty and knew. of instances of eylinder bar--

rel separation By July 26, 1997, nearly eight months before

the crash, but took no effective action to reeay the prob-

lem. ‘ |

In reaching our conclusion that there was sufficient evi-

dence of Curtiss- Wright’s negligence to require submis-

sion of the ease-to the jury, we do not find it necessary

to adopt the rule of Noel v. United Aircraft Corp., 342

F, 2d 232 (3d Cir. 1964), that a manufacturer is under a

continuing duty to improve its product where “human

safety” is involved. It is clear that after such a‘ product

has been sold and dangerous defects in design have come

cay

2 .-:

oar ) ‘Ga

First Opinion of United States Court of Appeals

lor the Second Circuit

» the manufacturer's attention, the manufacturer has a

duty either to remedy these or, if complete remedy _is--not

feasible, at least to give users adeqterte warnings and

instructions concerning mefttiods for minimizing the dan-

eer.

Tas Et,

Curtiss-W rieht eetivnds that Braniff was contributorily

negligent as a matter of law. hs

“The principal basis for Curtiss: Wright's ene

Branit!s admission that “on or about July 8, 1959,

| Braniff made al “determination upon information then

available that Captain Thomas Denald George [the pilot |

Was responsible for the accident 2..." and that it dis-

charged him on this ground? There is no reason to beliéve’

that in holding the pilot “responsible” Braniff was applying.

the standard of eare imposed by law. The admission states

that the determination of responsibility. was based on in-

formation available to Braniff by July 8, 1959. That date

Was more than eight months ii dongs ase

this action. Braniff may well have &Cquired further infor-

mation ding that period. :The admission was merely evi-

dence of contributory negligence which Braniff could seek

to rebut at trial. eae |

‘s -.It is not necessary to record in detail eertain other evi-,-:

dence of contrihutory negligence. .We are convineedothat

all of -this evidence presented an issue for the jury.

ITI.

We hold that the causes of action of Branitf, Addabbo

and Berg based upon implied warranty dre all barred by

the statute of limitations. This makes it unnec cessary for us

a ‘

aha Fa

‘ First Opinion of United States Court of Appeals

For case Second Circutt. ap... 2.

-

e ean tah

to discuss the district gourt’ s decision to direct, a verdict

against Braniff on that cause of action. .

Under the New York law, the action by Braniff, an

Oklahoma corporation, Was untimely if it was barred by

cither the laws of New. York. or the laws of Florida. New

Y ork Civil Practice Law and Rules. 6202 (Me Kinney 1963 ).*

‘The action. was not timely under the Florida statute of

limitation, Mla. Stat. £95.11(4) (e) (1967), as construed in

Creriston vy. General Motors Corp., 210 8. 2d 755° (Fla.

Dist. Ct. App. 1968)—a case of which the district court

‘Was apparently unaware when it ruled-that the action was

timely. Creriston holds that the period of limitation in an

implied warranty action is three years,and that thé ae-

lion accrues atithe time ef sale. We believe that New York

would accept the holding of the Florida appellate court in

-Creviston as representing the law of Florida, particularly

_since it is in aceord—with Ney, York law as to accrual of °

the cause of action. ‘(See infra. " The engine was sold in

1956; therefore comme neement of the suit in 1960 was not

timely. _ ;

Berg and Addi ibbo were both. New York. residents: their

implied w arranty actions were thus subject to New York’s

six year statute of limitation. New York Civil Practice

» Law and Rules $§213(2), 202 (McKinney 1963). Under

New York law, these actions ‘accrued at the time of the

safe in 1956. fice Schwartz v. Heyden Newport Chemical

Corp., 12 N-Y, 2d 212, 215, 237 N.Y.S. 2d° 714, 716, modi-

fied, 12 N.Y. 2d 1073, 239 N.Y.S, 2d 896, cert. denied, 374

3 That Florida is.the state where the cause of action accrued for

- purposes of N. Y. C.P.L.R oe (MeKinney: one is not contested,

“Sa ;

First?Opinion of? United States Court of Appeals |

, ae Oe - bad

For the Second Circuit

‘TeS. SUS (1963)." Since Berg commenced his action in 1962

and-Addabbo commenced his in-1964, both actions were un-

timely. Nor would they be timely even if we were’ to aecept

the contention that the date of acverual is governed by

Mlorida law: Creriston makes, clear that Florida fotlows

the New York rule, 0 | . eg

IV. :

. :

Brant? claims that Curtiss-Wrieht made express: wir

ranties coneerning the engine in two’ pamphlets: “acts

about the Wright Turbo Compound” and an engineering

report on the “TCIS Kngine Operating Margin.” The fore-

word to the former publication: states that its purpose is

to “explumthe pripciples of the turbine system.” On the

vover of the engineering report is the statement: “This

report is for information only and does not supersede, can-

eel, or change applicable engine specification or operating

instructions.”. The statements in these two informational -

pamphlets are not warranties. :

* Schwartz, a ease involving the sale and use of injurious medieca-

tion, concerned the date of aeerual of a negligenee cause of action

and an implied warratity eause of action; it held that the implied

Warranty action aecrued at the time of’ sale and that the’ negligence

aetion accrued whet the medication was administered.

The Schwartz holding on implied Warranty actions is not affeeted

_ by the reeent New York Court of Appeals 4-3 decision in Flanagan

"vit Mount Eden General Hospital (April 17, 1969) ¢not vet re-

ported). Flanagan holds that in medical malpractice actions for

negligence, involving the insertion of a foreign object into a patient’s |

body. the cause of aetion does not acerite until the object is dis-

covered. The cotirt discussed Nehwart: but was coneerned only with

its holding regarding the acerual of the negligence aetion. The court

in Flanagan distinguished Nchwart: and clearly limited Flanagan’s

application to foreign object malpractice cases.

}

-

v

First Gpinion Of United States Sous of Appeals

lor the Second Circuit tee

Yi ©

a

The distriet court denied B raniff’s motion to amend its

complaint by adding the members: of the flight erew as

plaintiffs. I appearsthat even if the requested amendment

were made, the complaint would not state a cause of ac-'

tiog on behalf-of the crew. If that is the case, the denial

we irrelevant. In any event, the motion in substance is

‘one to’ permit the erew. to intervene. Braniff could. not

properly make this motion; it must be made by the parties

seckine {6 intervene, Rule 24(¢), Federal Rulés of Civil

Procedure, ‘

ae Pe *

We wish to record gur disapproval of the parties’ dis-

regard of the provisions of thp Federal Rules of Appel-

late Procedure, Although Rull 30 does not require. that-

the parties agree on the contents of an appendix, it ex-

plicitly requires the filing of a single appendix. The par- —

ties chose instead to file an appellants’ appendix and an

appellee's appendix. Thus, in order’ to consider a given

witness’ testimony in this highly technical case, it was

necessary for us to Jump from one appendix to the other.

The rule requirihg a single appendix was adopted to fa-

cilitate our task of judicial review.

Appellants also failed to ‘reproduce in their Appendix

the two painphlets, Exhibits 5 9 and 15Aj on which they rely

to establish a cause of aiction for breach of a Awar-

ranty. | : : a

Litigants are ee to phnaldice these remarks as a

warning of the possibility of more drastic action by the

court in the future.

Affirmed as to’all issues. sein the causes of action for

negligence; as to these reversed and remanded for a new

trial. } Mie ’ ae Ss Seeks

aia : . 10a

4s ; aes . { *

Order Following Petition for Rehearing In Ban¢

UNITED. ST: ATES COURT OF APPEALS

For TE Srconp Circurr

CJ

2 i NTL wl myni Sd | | 328584-87

: ri 6 = Sa

ea Brasire Airways, Inc., Puiu Appanno, and . Myton 1D.

STELN, assy xecutor of the Estate of Maurice Berg,

| “deceased, } ; :

\ Ast» 7 aie Plointiffe-Appéilanis.

—V/.—

Cv wriss-W RIGHT C ORPORATION,

- Defe ndant- A ppe a e,

(and 3 other eases). |

; 4 ‘a ° : he . nee

©

A petition for a rehearing containing a suggestion that

the action be Treheard in bane having beer filed herein by

counsel for the appellee and no-active cireuit judge having |

| requested that a‘ vote be taken on said suggestion,

*, 4 | Upon consideration thereof, itis —

Ordered that said’petition be and it hereby i Is denied.

. res J. Evwarp Lumparp -

Chief Judge

4

-

Jutie 13 1969 :

]

lla

Order Following Petition: for Rehearing

UNIT IK D STATES COU RT OF APPEALS

For tur Secon Cireuit

32884-87-

Branive Amways, Inc, Pump Appansd, and Morton D.

Srein, as Kxee ier of the Estate of er Berg,

deceased,

Plaintiffs. A { ppellants,

4 —Vv.—

va ; « 2

Curtiss-Wricut Corporation,

Defendant-A ppéllee,

(and 3 other cases), |

td : 7

A petition for a rehearing having been filed herein by

counsel for the appellee,

Upon consideration thereof, it is

_ Ordered that said petition be and it hereby is denied.

J. Epwarp Lowes

Chief Judge

2 .

June 13 1969

l2a -

‘ j

Second oie of United States Coun of Appeals

For the Second Circuit

.

“ay NITED STATES COURT OF APPEALS |

For tur Seconp Circuit 29

aon, 423- 26-0. September Peten. 1968.

(Decided April 16, 170.)

» Dow ‘ket Nos. 32884-32887

°; :

La

ie

Brantrr Airways, Inc., Puiu AppaBBo, and Morton. J

STEIN, as ea of the Estate of Maurice Berg,

_ deceased, ee of

- ppellants,

—_—Vi— sf }

-Curtiss-WrigHt CORPORATION,

9 ree a Appellee.

s

Before:

FeIENDLY, Ki AUFMAN and Hays,

* Circuit Judges.

_On petition for Rehearing .

+” Whisper E. haw: Jr., New York, N. Y., for

appellants Braniff Airways, Inc., and-

ics Addabbo.

=

*. ’ : 13a . ; 4

Second Soiaion of United States Court of Pa aS |

For the Second Circuit

_ Ww. SHELBY Goats, “Sk New York, Sp

appellant Morton D. Stein as. dinecteloe of

the estate of Maurice Berg, deceased, ©

JaMEs F, Cot GHLIN, New York, N.Y. (Mendes &

Mount, New York, 'N. Y.,-Ernest D. Ken-

ee nedy, of. counsel), for. appellee Curtiss-

A - Wright Corporation. ;

Kaurman, Circuit Judge: 2”

Appellants petition: for rehearing of our decision in

Braniff Airways, Inc., et al. v. Curtiss-Wright Corporation,

411 3°.2d 451 (2d Cir, 1969), claiming that a state court

*. decision filed: ‘subsequent ta, ours requires us to change our

interpretation of the pertinent state statute of limitations.

The facts are fully-set forth in our main opinion and so

we shall be content with a brief summary here. Curtiss |

Wright sold airplane engines on July 17, 1956 to Douglas

Aircraft-Corporation, who in turn ‘sold them (installed i ina .

DC-7C) to Braniff, on October 23, 1956. Two years later,

on March 25, 1958, the plane crashed near Miami, Florida. |

Braniff instituted suit - against Curtiss-Wright: in the

United States District Court for the Southern District of

New York on March 21, 1960; Maurice Berg’ and Phillip.

Addabbo, passengers on the plane, waited until December

23, 1963, and March 24, 1964, respectively, to file their —

suits. All three were consolidated, for trial.

‘ Berg died intthe i course:of the litigation ; his executor, Morton D.

ee Stein, was substituted for. him. =

a oe i léa

@

- Second Opinion of United States Court of Appeals

: | For the Second Circuit

, The only portion of our prior. opinion called into issue

on this petition for rehearing is that dealing with the time- .

liness of claims 6f.implié¢d warranty, which all ‘three plain-

tiffs raise. Sitting in a diversity action,-we must apply the °

law of the forum state in matters of substagitive law,

including the state’s conflict ofdaws doctrines, See. Klaxon |

v. Stentor Mfg. Co., Inc., 313 U.S. 487 (1941) ; Sampson v.

Channel, 110 F.2d 754 (1st Cir.), cert. denied, 310 U.S. 650

(1940). -New York, by statute, New York Civil Practice:

Law and Rules 6202 (McKinney 1963),°- provides that for

causes accruing in-ariother state, non-resident plaintiffs will

‘ be barred from instituting, suit if they are barred by the

< ane of limitations of eithér jurisdiction; New York —

residgnts, however, will be affected only by the New York

limitations period. Berg and Addabbo are New York rési-.

“dents; Braniff is considered a-resident of its state of in--

corporation, Oklahoma. New York’s six year limitation: —

period runs from the. date of sale. See CPLR §213 (2)

(McKinney 1963). Compare Schwartz v. Heyden Newport

Chemical Corp., 12 N.Y.2d 212, 215, 237 N.Y.S.2d 714, 716,

188 N.E.2d 142, 143, modified, 12 N.Y.2d 1073, 39 N.Y.S.2¢4

896, 190 N.E.2d 253, cert. denied, 374 U.S. 808 (1963) with

Flanagan v, Mount Eden. General: Hospital, 24 N.Y 2d 427,

301 N.Y.S.2d 23, 248 N.E.2d 871 (1969). At the time of our

decision on this. appeal, relying on Creviston v. General

- Motors Corp., 210 So.2d 735 -(Fla. Dist. Ct. App. 1968),

Py : iy en. *

te

- $202. Cause of action accruing, bie es state

_ An action based upon a cause /of action aceruing, without the

state cannot be commenced after the expiration: of the time

limited by the laws of either/the State or the place without the

. State where the ¢ause of action acerued, except that where the

cause of action accrued in favor of a resident of the state the

time limited by the laws of the state sKall apply.

- ° o

o

, .

© e

15a

a

Second Opinion of U nited States Court of Appeals

For the Second Circuit

we were of the view that: Florida, like New York, applied

its Statute of- limitations, which is three years, fromm the -

date of sale. Thus we held Braniff’ was barred by the

Ilorida: statute applicable by virtue of CPLR §202, and

found Berg’s and Addabbo’s implied warranty — un-

timely under the New. York statute.

Our decision was filed on May 19, 1969, and a requested

rehearing en banc was denied June 13,1969. But in

| Crevistou v. General Motors Corp.,. 225 So. 2d 331, the

Florida Supreme Court on July 2, 1969 reversed the inter-

inediate appellate equrt decision on which we had relied,

and held that the conflict in Florida lower court opinions

over the accrual date in implied warranty cases should be

resolved by computing the period, from the time that the

‘defect was, or should have been, discovered instead of the

date of sale. Before vomuilecion the effect of the Florida

Supreme Court’s decision on our prior holding, we must-

first determine whether reconsideration of our original

decision at this time is proper.

We note that the [defendant] filed a feltten for certiorari .

on September 11, 1969 which was denied on December 8,

1969, 32 US.LW. 3210. After certiorari was filed, but

-before it was denied, plaintiffs learned of the reversal in

Creviston and filed a motion in this court styled a request

for “modification of decision of the court or for enlarge-

ment of the time to petition for rehearing.” - :

It seems clear to us that we have the power to enlarge

the time to petition for rehearing, F.R.A.P. 26(b), 40, and

to modify an erroneous decision although the time for

rehearing may have expired. See United States v. Certain

Laid, Docket Nos. 31181, 31182 (slip op. 3921) (2d Cir.

. Sept: 4, 1969) (deleting award ‘of interest three’ months

$

~~

l6a

mecond Opinion of United States Court of Appeals

For'the Second Circuit ©

after original decision). See al National Comics Pub- .

lishers vy. F aweett, 198 F.2d 927 (2d: Cir. 1952) (court of

appeals may chatige and modify mandate of prior term).

_ Xceord, United States v. 63.04 Acres of Land, 257 F.2d 638,

69 (2d Cir. 1958).

This Circuit has long shown ‘considerable w ‘ius to

‘correct what it believed ‘an erroneous interpretation of the

_ law when an intervening state decision seemed to indicate

a better view, See Johnson v. Cadillac, 261 F. 878 (2d Cir. |

| ed following McPherson v. Buick Motor Co., 217 N.Y.

02, 111 N.E. 1050 (1916); (Cardozo, J:). In Fakes we

mouilied, on appeal from a remand of the same case, a rule

we had _previousely declared in remanding it, viewing the

proper resolution of the controv ersy more important than

rigid adherence to the law of the ease. And in | “anderbark

v. Owens-Lllinvis Glass Co., 311. U.S, 538° (1941) the Court

directed courts of appeals sitting: in diversity cases to fol-

low new state court decisions occurring subsequent to the

date of the district court judgment, but before the court

of appeals decision.

Even more telling was the Court’s action in Huddleston

v. Dwyer, 322 U.S. 232 (1944), where it vacated a Court of

- Appeals decision for failing to consider a new state court

opinion that (like Cre -viston) was handed down after the

time for rehearing had expired. In /Zuddleston, the peti-

troners had- sought a second rehearing some six months

-after entry of judgment, a period considerably longer than

that béfore us. The Supreme Court indicated that so long

as the case was “sub judice” the court of appeals shopld

have entertained the petition for rehearing based on a

change i in state law; it did not indicate, however, precisely

what the bounds of the term ‘ ‘sub judice” might be.. Under

17a

Second Opinion of United States Court of Appeals

| For the Second Circuit

circumstances similar to H uddleston, we may consider peti-

tions filed after rehearing has been.denied, and even after

the time to petition for rehearing has passed, see F.R.A.P.

40. The question we must determine is whether we should

‘also entertain rehearings when a pétition for certiorari

> already has been filed. H uddleston seems to indicate that,

we should. Instead .of reversing the court of appeals, and

deciding the state law issues’ itself, the Supreme Court

there vacated the court of appeals decision, and remanded

to that court to permit it to determine the issues of state

law in the first instance, on the basis.of the new state court

decision. For us to refuse to consider petitions for rehear-

ing under the circumstances present here merely because

a petition for certiorari has been filed would be, it seems to

us, wasteful, for under the Huddleston. procedure the

Supreme Court, would not reach the merits of the contro-

versy, but would vacate our decision and order ‘us to re-

‘consider.on the basis of the recent state opinion. Hence

~ we conclude that in the interests of justice we should con-

sider what effect the Florida Supreme Court’s decision in

Creviston will have on our prior judgment in this ease.’

First, Braniff’s claim based on implied warranty is not

barred as a matter of law in cither Florida or New York,

- and so we reinstate that claim. See CPLR §202. The sales

took place in 1956; suit was filed in 1960, making the action

timely in New York. Assuming that the time of the crash

(1958) was. the first time that Braniff had notice of the

* Lennig v. New York Life Ins.-Co., 130 F.2d 580, 581 (3d Cir.

1942) suggests that a lower court on retrial may follow a state law

rule different from the one relied upon in the federal court of ap-

peals if there is an interim state court decision squarely in point.

‘This would provide additional support.for our decision to reconsider

application of the Creviston rule, before remanding.

.

mo.

1Sa

Second Opmion of United States Court of Appeals

For-the Second Circuit

defect in the engines,‘ it also satisfied the Florida statute, »

since the Florida Supreme Court in Creviston indicated

that its limitatien period ran from the time when the party

“discovered ‘or should have discovered” the defeet, 295

So.2d at 332.5 | ; vos

Berg’s and Addabbo’s claims are governed ‘by: the New |

York period of limitations, CPLR §202, and sinee both filed

suit more than six years after the sale, they would ordi-

narily ‘be barred by the New York period of ‘limitations.

See CPLR §213(2) ; Schwartz ve Heyden Newport Chemical

Corp. 12 N.Y.2d 212, 215, 237 N.Y.S.2d 714, 716, 188 N.E.2d

If2, 143, modified, 12.N.Y.2d. 1073, 239, N.Y.8.2d 896, 190

N.EL2d 253, cert. denied, 374 U.S. 808 (1963 . , Plaintiff's

urge, however, that we should apply the Florida time of

accrual to the New York period of limitations, and thus

find both Berg’s and Addabbo’s suits timely. Their argu-

ment, in effect, is that’ accrual should he governed by the

law governing the substantive cause of action, here Florida.

This “jurisdiction-selecting” approach and its mirror image,

which demands that the period of limitations and its ac: :

companying accrual date ‘must be chosen from the same

state, have been rejected by the New York Court of Appeals

in favor of an approach that examines each issue, ahd

evaluates and weighs the competing policies expressed in

3 “ef

‘ Curtiss-Wright argues that Braniff had earlier notice of the -de-

fect in the engines, and that thus the statut-' of limitations has run

even if measured from the time of discovery. That contention should

be left for resolution at trial. . :

° The district court also appears, in the alternative,-to have di-

rected a verdict on the merits of Braniff’s implied warranty claim.

See 411 F.2d at 454. For the same reasons governing our reversal

of a directed verdict on Braniff’s negligence cause, 411 F.2d at 453,

we believe that there was sufficiént evidence to take the implied war-

ranty claim to the jury.

19a

Second Opinion of United States Court of Appeals

Por .the Second Cireuit

each state’s rule. See, e.g., Long v. Pan ‘Baccus World

Airways, 16 N.Y.2d 337, 266 N.Y.S.2d 513 (1965).

There appear to be no New York decisions precisely in

_-pointon the limitations issug, at least since the conflicts-of-

law trail blazers, Kilberg v. Northeast Airlines, 9 N.Y.2d 34, °

211 N.Y.S.2d 133, 172. N.E.2d 526 (1961) and. Babcock v.

Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 748, 191 N.E.2d 279

(1963). Thus we must give’ flesh to the policy considera-

tions that underlie each state’s rule. The general aim of

statutes of limitation is to cut short pursuit of stale claims;

in New York a relaively long period of. limitations is

sharply cut back by the rule that the cause. for ‘implied

warranty’accrues af sale, and not at discovery of breach:

The New York policy, we may reasonably infer, is to afford

a litigant no more time to sue than that contemplated by

thginterplay of the two rules. The same may be said of

Fl6rida’s shorter time limit, whieh is in effect extended by

beginning computation at discovery rather than sale.

The effect of permitting Berg and Addabbo to apply the

Florida accrual date to the New York period of limitations *

would be to create a hybrid period of Irmitations, longer

‘than that available in either state. Given a strong policy

in the. forum state looking towards an extension of avail-

able. remedies, ef. Kilberg v. Northeast Airlin@S, 9 N.Y.2d

34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), such a result

might be permissible.’ In the instant case, however, there

is no such showing. Indeed, as suggested, we have no rea-

.°.In Kilberg the New York Court of Appeals did apply the. New »

.York rule on damages to the Massachusetts wrongful death statute,

but Kilberg is clearly distinguishable. There the New York rule

against limiting damages was an affirmative state. policy ; here there

is no demonstrable or even speculative interest in extending the time.

to sue for accidents occurring outside the state, but not for those

occurring within ‘it. -:

Kt /

— a

20a

Second Opinion of United States Court of Appeals —

. For the Second Circuit

An -

rs e

son to believe that New York would choosé to extend its

already long period of limitations by permitting the Florida

acernal at discovery rule to govern, Additional ‘support

for this conclusion may he derived f rom, New York’s own

~ . . . + > .

treatment of statutes of limitation that run from the time

the facts could reasonably have been discovered rather

than the date of the injury or agreement. Though called a

“tolling” rather than an “accruak’ provision, CPLR §203(f) -

limits the time within which suit may be brought to the

longer of the ustial period of limitations or two years from

_ the actual or imputed discovery date, thus indicating a New

York policy against adding a long statute of limitations

f . “ - . e : re, .

(such as six years) to a cause that accrues at, or is tolled

until, discovery.’ Even if CPLR {203(f) were not thought

“CPLR §203, Method of computing periods of limitation gen-

erally ee

* = * * *

(f) Time-computed from actual or imputed discovery of

facts: Except as provided in Article 2-of the uniform commer-

cial code, where the.time within which an action must be com-

menced is computed from the time when facts were discovered

.or from the-time when facts could with reasonable diligence

have been discovered, or from either of such times, the action

must be commenced within two years after such actual or im-

puted discovery or within the period otherwise provided, com-

puted from the time the cause of action accrued, whichever ig

longer.

As the New York statute indicates, provisions stating that

the cause “accrues” at discovery. (Florida), or that the statute

of limitations is “tolled” until discovery (New York), are sim-

ply different verbal formulations intended to reach the same

xesult. Hence it is instructive that the New York courts. when

applying foreign statutes of limitation. also accept their tolling

provisions in toto. See Cellura vy. Cellura, 24 A.D.2d 59, 263

N.Y.S.2d 843 (1965). This suggests that New York would con-

sider the Florida accrual at discovery rule (which is’ fune.

tionally identical to the New York tolling provision ) intimately

tied to its period of limitation, and would apply both to decide

when the cause was extinguished.

2la

Second Opinion of United States Court of Appeals

. _ For the Second Circuit :

. : x

by its terms to’ govern a foreign acc rual date, its policy—

cutting back the time limit when the statute is extended

through nondiscovery—should shew a legis!ative reluctance

to permit the extension of the time to sue urged by plain-

tiffs here. . .

The petition to enlarge the time for filing a petition for

rehearing, and for rehearing, is granted. Upon rehearing

we adhere to or prior decision except that we-reinstate

Braniff’s claim for implied warranty.

®. : ; ”

Hays, Cireuit Judge. (comrring and dissenting,) :

I agree with the majority’s determination that recon-

_ sideration of our original decision at this time is re quired

by the. authorities and that’ ‘Braniff’s claim for implied

warranty should be reinstated. However, I would also

reinstate Berg's and Addabbo’s claims for implied War-

‘ranty.

The majority finds it “highly doubtful” that en New

- York courts would permit the Florida accrual at discovery

rule to govern. I do not agree. The New York courts have

“rejected a mechanical jurisdiction selecting, rule,

“Justice, fairness, and “the best practical result’

may best be achieved by giving controlling effect to the

law of the jurisdiction which, because of its relation--

ship or contact with the occurrence or the parties has

. the greatest concern with the specific issue raised in

the litigation.” Babcock v: Jackson, 12 N.Y.2d 473,

481, 240: N.Y.S.2d 743, 749 (1963) [citation omitted].

Florida has adopted: its accrual tule to encourage the

prevention of i injury in that: state caused by “the latently

\

Second Opinjon of United States Court of Appeals

For the Second Circuit

defective condition of ... product[s],” Creviston ve General

Votors Corp., Fla, 225: ia) 2d 331, 333 (1969), and to deal

with a well-founded sense of outrage that- because of

“blameless ignorance” (id. at 334) plaintiffs shotihd go un-

compeftsated for invasions of their legal rights.

Thus Ilorida, by its accrual at discovery rule, has: placed

a vreater burden than has New York’ on manufacturers

who may cause injury within that state. The additional

standard of care imposed by Florida is not unlike a “rule

of the road” about which the court in- Babcock said:

“In such‘a case, it is appropriate to look to the law of

the place of the ... [injury] so as to vive effect to that |

jurisdiction’s isiteneat in regulating conduct within its

- borders, and @t would be almost unthinkable .to seek,

the applicable rule in the law of some other place.”

12 N.Y.2d at 483, 240 N.Y.S.2d at 790-51,,

The time ‘of me foe is pened grudgingly by the New

York courts. See Schwartz v. Heyden Newport, Chemical .

Corp., 12 N.Y.2d 212, 217-19, 237 N.Y.S.2d 714, 717-19

(dicta) (and dissenting opinion of Chief Judge Desmond,

“12 N.Y.2d at 219,237 N.Y.S.2d at 719), modified, 12 N.Y.2d-

1073, 239 N.Y.S. 2d 896, cert. denied, 374 U.S. 808 (1963).

An exception has recently been fashioned by the Court of

Appeals. Flanagan y. Mount Eden General Hospital, 24

N.Y.2d 427, 301-N.Y.S.2d 23 (1969). In-the light. of. their.

“

dissatisfaction with the time of -saleé rule, the New York >

courts would be likely to weleome an n opportunity to avoid

1 The longer period of limitations in New York only partly com-

pensates for its ‘rule of accrual at the time of sale. In many in,

Stances a latent defect may not be discovered until more than six

years after the product has been sold. ©

ae

ats, ei 23a

See ond | Opinion of Unite -d States oe of Pamuk

For the Second Circuit :

extending that rule, while at the same tinie taking proper

account of Florida’s legitimate interests.

The cases cited by the majority to show that, w hen the

New York courts apply a foreign statute of. limitations,

they also apply the pertinent foreign tolling provision are

not relevant to the present problem. A tolling provision is

closely akin to a statute of limitations—indeed an integral

part of such a statute. The time an action accrues imports °

“notions of, substantive law,” 1 Weinstein-Korn- Miller, New |

York Civil Practice $203.01, at 2-39.2 (1969). See First

Nat ‘l Bank vy. Marcher, 179 Mise. 258, 38 N.Y.S.2d 774 (Sup. .

Ct. 1942); rey v. Central Hanover Bank & Trust Co.,

. 169 Mise. 7, 6 N.Y.S.2d 704 (Sup. Ct.), aff'd 255 App. Div.

956, 8 NY'S. 2d 668 (Ist Dep’t 1938); Zuck v. Interstate

Publishing Corp., 317 F.2d 127, 735 (2d Cir. 1963); Baron

- Tube Co. v. ss it Ins. Co. 365 F.2d. 858, 860 i Cir.

1966). , |

_——_

* Section 203(f) of the New York Civil Practice Act and Rules .

would be irrelevant even if the New York rule as to acerual date

were to be applied.

24a

Note Regarding Missing Documents

Petitioners’ counsel have been unable to locate the origi- -

nals or copies of the judgment entered’on May 19, 1969 by

the. Court of Appeals and the order, entered on April 16,”

1970 by the Court of Appeals. The missing judgment-may

be part of the record certified to the Supreme Court of the,

‘United. States on July 28, 1969 in connection with respon;

dent's. Petition for a Writ of Certiorari filed on September

11, 1969. The office of the Clerk of the Court of Appeals

for the Seeond Cireuit has advised petitioners’ counsel

that the missing order may have been misfiled, Petitioners’

counsel will continue to try to trace the missing documents.