Armstrong Rubber Co. v. Urquidez, 6616

• Decision Date: 30 December 1977
• Docket Number: No. 6616,6616
• Citation: 560 S.W.2d 781
• Parties: ARMSTRONG RUBBER COMPANY, Appellant, v. Conrada URQUIDEZ et al., Appellees.
• Court: Texas Court of Appeals

Page 781

560 S.W.2d 781

ARMSTRONG RUBBER COMPANY, Appellant,

v. Conrada URQUIDEZ et al., Appellees.

No. 6616.

Court of Civil Appeals of Texas, El Paso.

Dec. 30, 1977.

Rehearing Denied Jan. 25, 1978.

Rassman, Gunter & Boldrick, John E. Gunter, Midland, for appellant.

Kenneth A. Perez, Dallas, for intervenor.

Warren Burnett, Associated, W. Ruff Ahders, Richard J. Clarkson, Odessa, for appellees.

OPINION

WARD, Justice.

This is a products liability action where a tire alleged to be defective in design and manufacture sustained a blowout and caused a truck to overturn and kill the driver. Trial was to a jury which determined that the tire was defective in its design or manufacture and that the defect was a producing cause of the accident. Based upon all issues submitted, judgment was entered awarding the Plaintiff/widow $75,000.00, the Plaintiff/son $12,000.00, and with the awards being subject to the intervening workmen's compensation carrier's subrogation rights. The question of interest on this appeal concerns the application of the doctrine of strict liability where there had been no sale of the product by the manufacturer but a bailment of the tire for mutual benefit. We affirm.

Automotive Proving Grounds, Inc., owns and operates a tire testing facility near Pecos. It contains a test track consisting of a 9-mile oval with asphalt surface, and also a serpentine route through the center area of the track. On January 1, 1970, a 10-year contract was entered into between Automotive Proving Grounds, Inc., and the Defendant, Armstrong Rubber Company, whereby the testing facilities and grounds were made available to the Defendant on a part-time basis. The material parts of the agreement were as follows:

"1.3 Automotive will maintain the track and Automotive's buildings and improvements erected on or contiguous thereto * * *."

"1.4 Automotive will provide competent drivers and other employees as are necessary for Armstrong's test purposes."

"4.1 Armstrong will own or lease and maintain all trucks and vehicles required for Armstrong testing."

"4.4 Armstrong agrees to abide by all general rules and regulations promulgated by Automotive relating to track scheduling, track usage, safety, vehicle safety, insurance protection, and any and all other rules and regulations promulgated for the proper administration or maintenance of the track."

"5.1 Automotive will promulgate rules and * * * regulations relating to the number of vehicles and the speed and safety standards for such vehicles as well as all driver qualifications."

"5.3 Automotive shall hire, pay, account for and supply all drivers and mechanics and other personnel necessary for the testing to be conducted on the track. Automotive shall be the final authority on the retention of any such employee."

Armstrong owned 10 trucks and 40 cars that were located at the test track facility. Automotive Proving Grounds, Inc., had some 150 employees, some of whom performed all of the maintenance on the Armstrong vehicles, and some of whom did all of the driving at the test track.

The deceased, Clemente Urquidez, was employed by Automotive Proving Grounds, Inc., as a test driver. On April 13, 1972, he was driving an Armstrong truck/tractor and was pulling a Fruehauf trailer. He was performing a standard test on the oval track and was driving 60 miles an hour when the left front tire on the tractor blew out. After the blowout, Urquidez slowed down the truck and had arched into the left inside ground area of the oval track when he hit soft sand, overturned, and was killed. The tire that blew out was an Allstate Express Cargo Nylon 12-ply non-interest spare and was manufactured by the Defendant. The two front tires on the truck he was driving were both non-interest spares. A "non-interest spare" is a term used for tires that are mounted on the test truck along with the tires being tested, but which are not themselves being tested. The tire in question had never been sold by Armstrong; it had been utilized only at the tire test track and on Armstrong's own trucks. The tire itself had never been tested and was new when received at the Pecos facility. At the time of the accident, about 50% Of the tread on the tire had been worn down. Armstrong representatives testified that the tire was of the same quality as tires manufactured by Armstrong and sold to trucking fleets across the nation.

The Plaintiff's expert witness testified that the tire was defective, both in its design and manufacture, while the Armstrong experts all testified that such was not the case but that the blowout resulted from a bruise or impact injury to the tire which could have happened at anytime during its use, that...