Markwell v. General Tire and Rubber Company, 15591.

Decision Date29 September 1966
Docket NumberNo. 15591.,15591.
Citation367 F.2d 748
PartiesJames MARKWELL, Plaintiff-Appellant, v. GENERAL TIRE AND RUBBER COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

John D. Clouse, Evansville, Ind., for appellant.

Fred P. Bamberger, Evansville, Ind., Bamberger, Foreman, Oswald & Hahn, Evansville, Ind., of counsel, for appellee.

Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

CUMMINGS, Circuit Judge.

This diversity action is brought to recover damages for injuries suffered by the plaintiff in an automobile accident. The plaintiff asserts that the accident was caused by a defective front left tire manufactured by defendant. Count I is based on a breach of express warranty, Count II is based upon a breach of implied warranties, and the final Count attempts to impose "strict liability" upon defendant for manufacturing and selling an assertedly defective tire.

In June 1964, plaintiff was driving his Mercury sedan in Kentucky when it overturned, injuring him. According to the complaint, the accident was caused because the left front tire had collapsed, but without any blowout. Plaintiff had purchased the automobile bearing defendant's tires in Indiana and claims to have relied on defendant's somewhat exuberant advertisements (termed warranties by plaintiff) that these were 40,000 mile tires, that no others would give better or safer mileage, and that they would afford superb blowout protection.

In November 1964, plaintiff's pre-trial deposition was taken. During the deposition, he testified that the tire "won't hold air."

Thereafter the defendant filed a motion for summary judgment on the ground that the pleadings, the plaintiff's deposition, and the defendant's supporting affidavits established that there was no genuine issue as to any material fact, and that defendant was entitled to a judgment as a matter of law. In support of its motion for summary judgment, defendant introduced the affidavits of three expert witnesses, stating that they had inflated the tire in question at pressures ranging from 30 to 40 pounds and that there was no air loss within 16 to 24 hours. One of the affiants stated that there was no evidence of any defect, the second stated that no damage could be found which could cause loss of air and that the tire was still perfectly capable of rendering service. The third expert stated that he found no leaks in the tire after immersing it in a water tank, that it evinced no possibility of a sudden loss of air pressure in normal service, and that there were no slow leaks in the tire. The tire was still on the wheel rim and bore no holes.

Thereafter the plaintiff filed his affidavit, his wife's affidavit and his son's affidavit, but none of these affidavits contradicted the three experts, nor did they show that the tire was defective.

After hearing argument on the defendant's motion, the District Court entered findings of fact, conclusions of law and summary judgment for defendant, on the ground that there was no proof or evidence of any defect in the tire.

At the argument on appeal, plaintiff's counsel stated that the express warranty Count was his most favorable point and that the other Counts would stand or fall with it.

Plaintiff must prove a defect in the tire before defendant can be held liable under any of the three Counts. Hurley v. Beech Aircraft Corporation, 355 F.2d 517 (7th Cir. 1966), and United States Rubber Company v. Bauer, 319 F.2d 463 (8th Cir. 1963), both held that in the absence of proof of the existence of a defect, a defendant may not be held liable for negligence in manufacture or responsible on the theory of implied warranty. Those decisions are equally applicable to express warranty cases. In fact Count I of the Hurley complaint was based on both express and implied warranties (see 355 F.2d at pages 518 and 519). As the Bauer case teaches, it would also be inappropriate to apply the res ipsa loquitur doctrine here, for the manufacturer had no control over the...

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29 cases
  • Egger v. Phillips
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 22, 1983
    ...Fed.R.Civ.P. 56(e). See Thornton v. Evans, 692 F.2d 1064, 1074-1076 & n. 29 (7th Cir.1982). See generally, Markwell v. General Tire and Rubber Co., 367 F.2d 748, 750 (7th Cir.1966); Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir.1970). However, it is always prudent to respond to......
  • Dayton Tire & Rubber Co. v. Davis
    • United States
    • Court of Appeal of Florida (US)
    • June 29, 1977
    ...(La.App.1958); and Wojciuk v. United States Rubber Co., 19 Wis.2d 224, 233, 120 N.W.2d 47, 52 (1963). See also Markwell v. Gen. Tire & Rubber Co., 367 F.2d 748 (7th Cir. 1966). The threshold question is whether a tire failure after 4,000 miles "of itself justif(ies) the conclusion that negl......
  • Edwards v. Sears, Roebuck and Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 25, 1975
    ...of courts have held the res ipsa doctrine to be inappropriate or inapplicable in cases of tire blowouts. Markwell v. General Tire and Rubber Co., 7 Cir., 1966, 367 F.2d 748, 750; United States Rubber Co. v. Bauer, 8 Cir., 1963, 319 F.2d 463; Senter v. B. F. Goodrich Co., D.Colo., 1954, 127 ......
  • Aluminum Co. of America v. Burlington Truck Lines, Inc.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 3, 1972
    ...12 Baldwin v. Scott County Milling Co., 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409 (1939). 13 See, e. g., Markwell v. General Tire and Rubber Company, 367 F.2d 748 (7th Cir. 1966); Wagoner v. Mountain Savings & Loan Ass'n, 311 F.2d 403, 406 (10th Cir. 1962); McPherson v. St. Paul Fire & Mari......
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