Forry v. Gulf Oil Corp.
Forry v. Gulf Oil Corp.
Opinion of the Court
Opinion by
This appeal attacks the propriety of an order of the Court of Common Pleas of Dauphin County which refused to remove a compulsory nonsuit entered at the trial of a trespass action.
On February 27, 1957, Thomas Wagner purchased a new snow tire from George Keller, the operator of a Harrisburg service station. This tire had been manufactured by B. F. Goodrich Co. (Goodrich), distributed to Gulf Tire & Supply Co. (Gulf Tire), and sold by the latter to Keller.
Upon purchase of the tire, Keller mounted it
Forry instituted a trespass action in the Court of Common Pleas of Dauphin County against Goodrich, Gulf Tire
Forry contends: (a) that, even without his expert witness’ testimony as to the cause of the accident, the evidence was sufficient to prove the existence of a de
In passing upon the propriety of the entry of this compulsory nonsuit, we accept the evidence produced by Forry as true, we read it in the light most favorable to him and we accord to him the benefit of all reasonable inferences arising from the evidence: Auel v. White, 389 Pa. 208, 210, 132 A. 2d 350 (1957).
At the outset, it must be noted that Forry claims that the accident was caused by a combination of two factors, the defective condition of the tire and the improper handling of the tire when Keller mounted it on the wheel. Absent evidence or reasonable inferences therefrom that both factors caused the explosion, Forry will have failed to sustain his cause of action.
In addition to the evidence previously related, certain other evidence is of importance. When Wagner observed the tire at Forry’s service station, the outside of the tire appeared to be properly “seated” on the rim but the appearance of the inside of the tire indicated that a section of the bead of the tire was “unseated” at a point y^' to %" from the flange of the rim for a distance of 2y2" to 3". After the tire had been removed from the mounting machine, Forry placed it upon the station floor with the inside portion resting on the floor; without replacing the core of the valve, which
Approximately six and one-half years subsequent to the accident, the tire was delivered to one Isaac Stewart for both visual and X-ray examinations.
Stewart testified that where “overlaps” are not fastened or staked together, as in the construction of the tire in question, it was the custom and practice in the tire industry to make the “overlaps” from 4" to 6" in length whereas the “overlaps” on this tire were only 114" in length. Stewart’s opinion was that a mechanical force had been applied which was sufficient to create the type of dent or depression which he observed in the sole of the bead opposite the “overlaps” and this force initiated the break in the bead wire unit at the point of the “overlaps”.
Forry first contends that it is the function of the bead wire unit and the “overlaps” in a tire to strengthen the tire structure and that the “overlaps” in this tire, due to their insufficiency in length, slipped out of their attachments and caused a substantial reduction in the strength of the tire’s bead structure and that such a defect in the construction of this tire constituted a potential danger to persons using or working upon the tire.
Recently, in Webb v. Zern, 422 Pa. 424, 220 A. 2d 853 (1966), we adopted §402A, Restatement 2d, Torts,
Next, we must inquire whether the proof produced by Forry was of such nature as to render applicable §402A. Goodrich admits that it manufactured this tire for resale and that, as a new tire, it was sold to Gulf Tire for distribution. It was Forry’s burden to prove that there was a defect in this tire, that this defect existed when the tire left Goodrich’s hands, that the defective condition was unreasonably dangerous to the user and that there was a causal connection between this defect and the explosion of the tire. Such proof could arise either from direct or circumstantial evidence, or both,
Speaking generally, a tire consists of a rubber tread which is bound to nylon or rayon cords, impregnated with rubber and other materials, which are called “plies” and which form the sidewalls of the tire. Attached to these “plies” are “beads” which are made up of a number of turns of steel wires insulated with rubber compounds and wrapped in fabric. These “beads” hold tight and taut the mounted and finished tire along the circumference of the sidewalls which come in contact with the rim of the wheel.
The evidence in the case at bar indicates that, in the tire in question, the bead wire unit contained sixteen wires and that, after the accident,
The expert witness testified both from his personal observation and the results of an examination by
We believe that the record proof renders applicable the provisions of §402A, supra, and that the doctrine of strict liability imposed thereunder would be applicable to Goodrich, the manufacturer of this tire, if the defective condition was the sole cause of this accident.
If Goodrich would be liable, then Gulf Tire would also be liable under the theory of vicarious liability set forth in §400, Restatement 2d, Torts, which pro
Even though there is such evidence of record as would render both Goodrich and Gulf Tire liable for this defective condition of the tire, the very serious and essential problem of causation arises. It is not the theory of Forry that the defective condition of this tire alone caused this accident; on the contrary, it is For
It was essential that Forry establish by competent evidence that Keller improperly mounted this tire, otherwise no liability on the part of any of the defendants would exist. The case against Keller rests on several predicates: (1) on the sole of the bead wire unit opposite the area of the undersized “'overlaps” there was an observable dent or depression; (b) this dent or depression resulted from a mechanical force excessively applied at that point to the sole of the bead wire unit;
The dent or the depression which led Stewart to the conclusion that a mechanical force had been applied to the tire at that point was observed six and one-half years after the accident. From the time of the purchase of the tire, three persons had performed some work on or handled this tire, i.e., Keller, Forry and Gerald Forry. Original mounting of the tire had been by Keller; Forry had “tried to reseat the tire onto the wheel”; Gerald Forry had removed the side of the tire casing from the rim of the wheel on a tire machine. There is not a scintilla of evidence that Keller used any excessive mechanical force in mounting the tire; on the contrary, the record is silent as to just what Keller did at all. True, the opportunity for improperly handling of the tire by Keller was shown but
While there is evidence that this tire was defective there is no proof or allegation that such defect alone caused this accident. On the contrary, Forry contends that the defect plus Keller’s negligent conduct in mounting the tire caused the accident and of the latter there is a complete lack of any proof. Viewed in the light most favorable to Forry, the record would show that someone by the use of excessive mechanical force caused the dent or depression in the sole of the bead of this tire; the record does not show that that person was Keller and the lack of such proof is fatal to Forry’s case.
Order affirmed. Appellant to pay costs.
Actually, Keller’s employees did the mounting. All references to Keller in this opinion include Keller’s employees.
From the time of the tire purchase until the visit to Forry’s service station, Wagner’s motor vehicle had been driven approximately 25-30 miles over paved roads and some railroad tracks at speeds no more than 40-45 miles per hour.
Originally named as a defendant, Gulf Oil Corporation, by stipulation of the parties, was removed from the litigation. As against Gulf Tire, all claims were eliminated except that of possible vicarious liability arising from the fact that it had had its name placed on the tire casing.
This hose had no gauge or control and was capable of carrying a maximum pressure of 150 pounds.
Stewart is a licensed professional engineer who possesses an expertise in “material failures”.
Webb v. Zern, supra, had not been decided at the time of the trial in the court below, however, it had been decided prior to that court’s delermination whether the nonsuit should be removed. The court below apparently believed Webb was inapplicable and did not mention either Webb or §402 A in its opinion.
As to the quantum of proof required in cases involving allegedly defective tires in the period prior to the adoption of §402A, see: Baker v. B. F. Goodrich Co., 115 Cal. App. 2d 221, 252 P. 2d 24 (1953) ; Hewitt v. General Tire & Rubber Co., 3 Utah 354, 284 P.
See: Leahy v. U. S. Rubber Co., 216 F. Supp. 633 (1963).
We adopt, in determining this appeal, the premise that even though the expert witness whose examination revealed this allegedly defective condition did not see the tire until nearly six and one-half years after the accident, the tire remained in the same condition that it was in after handling of the tire by Gerald Forry.
It was Forry’s burden to establish such custom or practice with certainty. Doyle v. Atlantic Refining Co., 357 Pa. 92, 96, 53 A. 2d 68 (1947). As Mr. Justice Holmes stated in Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S. Ct. 622 (1903) : “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” While the existence of a custom or a practice does not furnish a conclusive test that a variance from such custom or practice is negligence (Donnelly v. Fred Whittaker Co., 364 Pa. 387, 390, 72 A. 2d 61 (1950), yet proof of such variance combined with proof or a reasonable inference that such variance could create a dangerous situation may prove a lack of due care upon which a finding of negligence can be predicated (Muller v. Kirschbaum Co., 298 Pa. 560, 148 A. 851 (1930)).
Seo: II Wigmore, Evidence (3d ed.), §678 ; 82 A.E.R. 1338.
We need not go so far as the Court in Baker, supra: “Automobile tires properly constructed do not explode when inflated in the process of being mounted in the usual and customary manner upon a wheel designed to receive them.” See also: Hewitt, supra, 284 P. 2d at 474.
As to the extension of liability under §400, see: Harper & James, The Law of Torts (1956), Vol. 2, §28.28 and eases cited therein; Frumer-Friedman, Products Liability, Vol. 1, §10.02 and cases cited therein; Wojciuk v. U. S. Rubber Co., 13 Wisc. 2d 173, 108 N.W. 2d 149 (1961).
At the previous trial of this case,—which was continued because of the failure of Forry to produce the rim of the wheel,—Stewart had testified that the cause of the explosion was this comMnation of factors. We must assume that his views would not have changed had he been permitted to answer the hypothetical question addressed to him at the instant trial as to the cause of the explosion.
Beneath the dent or depression the three inner courses of twelve wires in the bead wire unit were kinked outwardly. There was evidence that a mechanical force, applied at the point where the dent or depression appeared, sufficient to outwardly kink these
in reaching this conclusion, we have even taken into consideration the answer of Stewart, which the court below struck from the record, that the mechanical force was exerted by a “tire mounting tool”.
Dissenting Opinion
Dissenting Opinion by
Pennsylvania Rules of Civil Procedure 1020(c) succinctly provides: “Causes of action . . . may be pleaded in the alternative.” The import of this provision, designed to ameliorate the stringent rules of common-law pleading, is well stated in Goodrieh-Amram, Standard Pennsylvania Practice §1020(c)-l, at 144 (1962) : “Alternative pleading has become, since the adoption of the Rules, a common method of averment. It may be used to join two or more defendants when- it is not clear which defendant was responsibly for the loss or to join two or more theories of action when it is not certain which theory is applicable to the facts.” (Emphasis supplied.)
Appellant’s complaint contained four causes of action. The first, after detailing various allegedly negligent acts by Goodrich, claimed that “all of the aforesaid injuries and damages suffered by plaintiff were caused by the carelessness and negligence of the B. F. Goodrich Company.” The second insisted that Gulf Tire was liable to appellant for its negligent acts; the third that Keller was liable for his negligent acts. Only in the fourth count did appellant plead that his injuries were the result of the joint negligence of these three defendants. Appellant, therefore, pleaded four
I have read appellant’s complaint with utmost care, have examined the record closely and reviewed the opinion of the court below. I can find absolutely no support for the majority’s view of appellant’s theory of recovery. Although appellant did allege that he was injured as the result of the combined negligence of the three appellees, he also alleged that each was solely liable to him for their individual negligent acts. Assuming arguendo that there was no evidence of Keller’s negligence and that the nonsuit was properly granted as to him, appellant had produced sufficient evidence of negligence on the part of Goodrich and Gulf Tire to escape the nonsuit. To deprive a litigant of a jury trial by a reading of his complaint which would be worthy of a Blackstonian lawyer not only disregards the mandate of our rules but returns this Court to an era long since past.
Furthermore, although I agree with the majority that §400 of the Restatement 2d should be adopted as part of the law of this Commonwealth,
I dissent.
The opinion denominated in this opinion as the majority opinion does not in fact represent the views of a majority of this Oourt.
The majority correctly concludes that Gulf Tire's liability can be predicated upon the fact that it is a seller within the meaning of §402A. Its dissertation on §400 is therefore dictum.
Reference
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- Forry, Appellant, v. Gulf Oil Corporation
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