GENERAL ACCIDENT, ETC. v. Goodyear Tire & Rubber Co.

• Decision Date: 03 December 1942
• Docket Number: No. 38.,38.
• Citation: 132 F.2d 122
• Parties: GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, v. GOODYEAR TIRE & RUBBER CO.
• Court: U.S. Court of Appeals — Second Circuit

132 F.2d 122 (1942)

GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, v. GOODYEAR TIRE & RUBBER CO.

No. 38.

Circuit Court of Appeals, Second Circuit.

November 13, 1942.

Rehearing Denied December 3, 1942.

Edward M. Fuller, of New York City (Edward M. Fuller and William C. Morris both of New York City, of counsel), for plaintiff-appellant.

Andrews, Baird & Shumate, of New York City (William L. Shumate and Oleg Peter Petroff, of New York City, of counsel), for defendant-appellee.

Before SWAN, AUGUSTUS N. HAND and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff, a liability insurance company, brought this action against the defendant Goodyear Tire & Rubber Co., a manufacturer of rims for automobile tires, to recover damages which it had paid to discharge claims brought against its insured, Alexander Dairy Co., Inc., because a rim manufactured by the defendant and installed upon one of the wheels of a truck belonging to the Dairy Company had blown off, resulting in the death of one Shapiro and injury to one Calvano. The administratrix of the estate of Shapiro brought an action against Alexander Dairy Company and Nathan Stern, whom it employed as driver of the truck, alleging that the Dairy Company and its employee negligently operated the truck, failed properly to inspect the wheels and component parts thereof, negligently placed the same under an undue strain and allowed the tire rim to become worn and to fall into a state of disrepair; and that they knew or should have known that the rim lock might blow off the wheel and cause injury to persons lawfully upon the streets of New York, where the truck was operated. Alexander Dairy Company and Nathan Stern answered the complaint and gave notice to Goodyear to come in and defend the action on the ground that the death of Shapiro was caused primarily by reason of the negligence of Goodyear in the manufacture of the rim. Goodyear did not appear at the trial. The case was submitted to the jury under instructions that it might render a verdict against the Dairy Company without rendering one against Stern, because there was evidence that the president of the former had been told by a garage man that "he ought to change the rim; someone is going to get hurt with it," but there was no proof that Stern was present at this conversation. In his charge the trial judge said to the jury: "* * * because someone says to you, `Look out for that, it is dangerous,' that does not mean that you must abide by or obey that command. That is not what the law requires of anybody. But here is what the law requires: That a person must demean himself at all times with respect to everything he does, as an ordinary cautious and prudent individual would have acted at that time and under those circumstances. Now, keep that in mind: An ordinary careful, prudent man, what would he have done under those circumstances? Well, the plaintiff says that when that notice was conveyed to the president of the company, the ordinary careful and prudent president of a company would have rectified that condition."

It is true that the judge had said in passing that Shapiro's administratrix "must show that defendant knew about that condition." But in view of the emphasis placed upon the sufficiency of notice, rather than knowledge, we do not think the instructions as a whole required more than notice as a ground of liability.

The jury returned a verdict that the Dairy Company was liable to the administratrix of Shapiro in the sum of $40,000, but that Stern was not liable. The plaintiff herein paid the administratrix the amount of the verdict, together with interest and costs, and it paid Calvano $5,000 to settle his claim for injuries which he suffered through the explosion and for the expenses to which he was subjected. Under a claim of subrogation to the rights of the Dairy Company, which it had agreed in its policy to indemnify, the plaintiff has brought this action.

The District Court awarded judgment to the defendant on the ground that the pleadings and affidavits submitted to him showed active negligence in that the Dairy Company continued to operate the truck after it had received actual notice of the condition of the rim. The judge stated in his opinion: "Its liability was not based upon its failure to discover a defective condition which might be attributed to the defendant as manufacturer. We think the record and findings in the Shapiro action conclusively exclude any possibility that such a defect or defective condition was the sole operating cause of the damage for which recovery was had."

The court went on to say that: "Where a person has supplied to another a chattel which, because of the supplier's negligence or other fault, is dangerously defective and the user has been required to respond in damages to a third party injured by such use, the supplier is under a duty to indemnify if the chattel was used in reliance upon the supplier's care, if, as between the two, such reliance was justifiable and, if, by reason of said reliance, damage has been suffered. But the damage suffered here was not due to any such reliance. * * * It is conceded by the plaintiff claimant here that his liability arose by reason of its use of a worn and misshapen rim which continued use, after notice, with its resultant increase...