Barth v. B. F. Goodrich Tire Co.

• Decision Date: 27 August 1968
• Citation: 71 Cal.Rptr. 306,265 Cal.App.2d 228
• Court: California Court of Appeals Court of Appeals
• Parties: Theodore H. BARTH et al., Plaintiffs, Respondents and Appellants, v. B. F. GOODRICH TIRE COMPANY, a corporation, Defendant and Appellant, Perry & Whitelaw, Inc., Defendant and Respondent. Carole CLARK et al., Plaintiffs, Respondents and Appellants, v. B. F. GOODRICH TIRE COMPANY, a corporation, Defendant and Appellant, Perry & Whitelaw, Inc., Defendant and Respondent. Civ. 23891.

Page 306

71 Cal.Rptr. 306

265 Cal.App.2d 228

Theodore H. BARTH et al., Plaintiffs, Respondents and Appellants, v. B. F. GOODRICH TIRE COMPANY, a corporation, Defendant and Appellant, Perry & Whitelaw, Inc., Defendant and Respondent.

Carole CLARK et al., Plaintiffs, Respondents and Appellants, v. B. F. GOODRICH TIRE COMPANY, a corporation, Defendant and Appellant, Perry & Whitelaw, Inc., Defendant and Respondent.

Civ. 23891.

Court of Appeal, First District, Division 2, California.

Aug. 27, 1968.

Hearing Denied Oct. 23, 1968.

Hoberg, Finger, Brown & Abramson, San Francisco, for Barth and Clark, and others.

Sedgwick, Detert, Moran & Arnold, Scott Conley, Bacon, Mundhenk, Stone, O'Brien & Hammond, W. F. Stone, San Francisco, for B. F. Goodrich Co.

Low, Ball & Norton, San Francisco, for Perry & Whitelaw, Inc.

TAYLOR, Associate Justice.

The cross-appeals in this products liability litigation arose from an accident that occurred after the left rear tire of a station wagon blew out and the car went out of control, over an embankment and turned over. The husband (Theodore H. Barth) and minor children (William Henry and Julie Lynne Barth, by their father and guardian ad litem) of the deceased driver (Mrs. Shirley Sue Barth), and three of the four surviving passengers (Carole Clark, Patricia Ridgway and Elizabeth Gordon), filed their respective actions for wrongful death and personal injuries against the manufacturer of the tire, B. F. Goodrich Tire Company (hereafter Goodrich), and the supplier and installer, Perry & Whitelaw, Inc. The actions were consolidated for a jury trial which resulted in verdicts against Goodrich of $207,375 for Barth, $6,000 for Clark, et al., and in favor of Perry & Whitelaw.

Goodrich appeals from the judgments in favor of Barth and Clark, et al., contending that the cumulative effect of the errors of the trial court during the trial and in its instructions to the jury deprived it of a fair trial. Barth and Clark cross-appeal from the judgments in favor of Perry & Whitelaw, contending that the trial court erroneously instructed the jury that the strict liability of Perry & Whitelaw depended on its 'sale' of the tire.

As there are no contentions concerning the sufficiency of the evidence, only those facts pertinent to the issues raised are set forth. The facts relating to the Goodrich appeal and the Barth and Clark cross-appeal are set forth separately.

I. THE GOODRICH APPEAL.

THE FACTS:

Viewing the record most strongly in favor of the judgment, the following facts appear: On the afternoon of April 17, 1962, Shirley Barth was driving a 1961 Chevrolet six to nine passenger station wagon northbound along the coast highway in San Mateo County with five passenger friends. At the scene of the accident, the coast highway is a flat and straight two-lane road, 32 feet wide. The speed limit was 65 miles per hour. Just after Shirley Barth had passed the Pigeon Point lighthouse, the passengers heard a loud bang from underneath as if something had exploded, a sound similar to a blowout. One of them said: 'It may have been a blowout. Maybe we should stop and check.' Shirley was doing her best to control the car and started to apply the brakes lightly. The car began to fishtail across the center of the highway, swerved back and forth, then went over the right embankment after striking a guardrail and turned over end-to-end before coming to rest 30 feet off the highway. All of the surviving passengers and some expert witnesses fixed the speed of the vehicle just before the accident at between 50 and 60 miles an hour; Goodrich's expert at between 58 and 70 miles an hour.

The 1961 Chevrolet station wagon with a trailer hitch was owned by Service Leasing Corporation and leased to American Floor Machine Company, Inc. (hereafter American), a manufacturer and distributor of all types of floor maintenance equipment. In September 1961, American assigned the station wagon to branch manager Barth as his own vehicle. Shirley Barth was permitted to drive the vehicle. American had 35 factory-owned branches in each major city of the country, all selling the same kind of equipment and followed the same vehicle-leasing practice at all of its branches and generally using trailers owned by American. American also had made arrangements with Goodrich on a national basis to furnish replacement tires for American's vehicles.

In October 1961, Barth had the brakes and wheels of the station wagon aligned at the House of Brakes in San Francisco. A notation on the invoice at that time noted 'drums have hard spots.' Barth concluded that the brake company wanted to sell him a new set of drums but thought the price was out of line. Thereafter, the brakes were fine and no other changes were made in the station wagon except for the purchase of new tires, discussed below. When Barth took the vehicle over from his predecessor it had been equipped with Monroe load levelers to keep the car level when it was pulling the trailer. Barth did not know that the load levelers would affect the load-carrying capacity of the trailer.

In November 1961, the station wagon needed new tires. Pursuant to company procedure, Barth was informed by American's home office in Ohio that two 800 14 black de luxe Goodrich Silvertown rayon tubeless tires for his car had been ordered through the Biltmore Company of Chicago (a midwestern Goodrich distributor, hereafter Biltmore). Shortly thereafter, Barth received a purchase order to pick up the tires in San Francisco at Perry & Whitelaw, a wholesale and retail Goodrich distributor who sold tires to individuals and serviced national accounts. On November 9, 1961, an employee of American took the vehicle to Perry & Whitelaw, who installed two tires from its stock on the rear wheels, in accordance with a standard mechanical procedure, and provided a Goodrich form warranty, including a warranty against blowouts, with its name and address stamped on it. The guarantee period was 24 months. Barth checked the serial numbers on the warranty against the tires but could not say whether he had read any of the particular provisions of the warranty. In December, by the same procedure, two other tires were obtained for the station wagon. The tires that had been obtained in November were switched to the front wheels and the two new tires put on the rear wheels. On March 7, 1962, the tires were again rotated so that the tires that had been obtained in November 1961 were placed on the rear wheels. These were the tires that were on the rear wheels at the time of the accident on April 17, 1962.

Seventy-five percent of Barth's work involved trips once a week selling equipment in northern California and Nevada. He normally carried in the station wagon a sanding machine, a floor polisher and a vacuum cleaner. In addition, about once a week he hauled an automatic floor scrubber weighing about 870 pounds for demonstration purposes in a two-wheel hydraulically operated Selma IM 46 trailer with a capacity of 1,500 pounds. He never carried more than 300 pounds in the station wagon itself and 1,000 pounds in the trailer. Every two weeks or so, he checked the tire pressure. He maintained 24 pounds of pressure in the front and 28 pounds in the rear. He never found any substantial variance in the pressure of the tires. There were no flats or punctures.

According to the tire industry approved 'Tire Guide,' and 800 14 tire was recommended for use on all 1961 Chevrolet station wagons like the Barth vehicle. The Barth vehicle was designated as either a six or nine passenger vehicle designed for passengers and equipment or other property. The owners' manual distributed with the vehicle in question indicated nothing about tire safety but only gave the recommended pressure for comfort of passengers and the life of the tire.

A service bulletin issued by Goodrich to its dealers showed recommended pressures of 24 to 28 pounds for the tires in question, but this bulletin was not furnished to customers and included nothing about the weight that could be carried by the tires on a station wagon. Neither this publication nor any other issued by Goodrich informed the public of any tire weight limits.

The tire experts called by Goodrich testified that the maximum carrying capacity of a tire of the type in question, according to the standards then set by the Tire and Rim Association, was 1,175 pounds and that increased tire pressure would not increase the carrying capacity of the tire. They testified that if a tire is overloaded and runs into a chuckhole or other road obstructions, it would be more vulnerable to a failure of the type found in the Barth tire, that an overload of 25 to 50 percent would be severe, and that if the tire was loaded 25 percent over the tire and rim carrying capacity, it would be expected to rupture before the tread was gone.

The engineering specifications for a 1961 Chevrolet station wagon indicated that on a loaded nine passenger station wagon, for which tires of the type here involved were specified, the rear wheels would carry 3,430 pounds. Thus, each of the rear wheels would carry 1,715 pounds. Therefore, with six 150 pound passengers riding in the vehicle, each rear tire would be overloaded by 232 pounds or about 25 percent. Accordingly, with six ladies averaging such weight in the car, the rear tires would be overloaded and the overloaded condition would be such that the tires could be expected to rupture before the tread wore out.

Goodrich knew that its tires were subject to overload and asked the car manufacturers to be more observant of recommended loads. But it never informed the public or its individual customers of the problem. Goodrich supplied the tires to the car manufacturer under these circumstances as the business was a highly competitive one. It knew that a certain percentage of tires sold would be exposed to overloading conditions.

Goodrich's witness, Poole, after describing in great detail...