Casetta v. U.S. Rubber Co.

• Decision Date: 08 April 1968
• Citation: 67 Cal.Rptr. 645,260 Cal.App.2d 792
• Court: California Court of Appeals Court of Appeals
• Parties: Renato J. CASETTA, Plaintiff and Appellant, v. UNITED STATES RUBBER CO., a corporation and Gasoline Marketers, Inc., a corporation, Defendants and Respondents. Civ. 24119.

Page 645

67 Cal.Rptr. 645

260 Cal.App.2d 792

Renato J. CASETTA, Plaintiff and Appellant, v. UNITED STATES RUBBER CO., a corporation and Gasoline Marketers, Inc., a corporation, Defendants and Respondents.

Civ. 24119.

Court of Appeal, First District, Division 1, California.

April 8, 1968.

Rehearing Denied April 23, 1968.

Hearing Denied June 5, 1968.

Tormey & Cotchett, San Mateo, for appellant.

F. Whitney Tenney, M. Laurence Popofsky, Heller, Ehrman, White & McAuliffe, San Francisco, for respondents.

SIMS, Associate Justice.

Plaintiff, a tire repairman, who was injured as a result of an explosion which occurred while he was mounting a new automobile tire on a rim, has appealed from a judgment in favor of the manufacturer and the distributor of the tire, entered following the granting of their motion for judgment notwithstanding a verdict which had awarded plaintiff $58,500. ¹

The issues as framed by the pretrial order ² were negligence of the defendants or either of them, contributory negligence of the plaintiff, breach of warranty by either defendant, proximate cause, and the injury and damages to the plaintiff. At the conclusion of the plaintiff's case, in connection with argument on a motion for nonsuit, it was recognized that the plaintiff had three theories: 'one is the negligence of the manufacturer in the sale and distribution of the tire proximately resulting in injury and damage to this plaintiff * * * and the second, the breach of implied warranty of the tire and fitness * * * and the third one is strict liability in tort.' When the defendants moved for a directed verdict after all the evidence was in, the plaintiff advanced the additional theory that the defendants were negligent in not warning the plaintiff of a particular hazard in mounting a tire of the type in question upon the particular type of hump-type safety rim which was involved.

The trial court in effect granted the defendants a directed verdict on plaintiff's 'theory of breach of implied warranty of fitness of the tire 'for the use to which it was put" and 'on the theory of negligence in the manufacture, sale or distribution of the tire'; and left for the jury the question of whether there was a defect in the tire which would support the theory of strict liability in tort. The court rejected proposed instructions which embodied plaintiff's other theories. It also refused to give instructions which proposed the conditional application of the res ipsa loquitur doctrine to the theory of strict liability in order to supply proof that the product was defective, and similar instructions, both conditional and unconditional, in support of plaintiff's theory of negligence.

The court instructed the jury, 'In this action plaintiff has the burden of proving that the tire involved in the accident contained a defect which existed with or without the negligence of the defendant United States Rubber Company, and further, that the defect thus identified was the proximate cause of injury and damage to plaintiff'; and gave further instructions as offered by the parties on the theory of the strict liability of a manufacturer and distributor of a defective product. No instructions were given with respect todefendants' negligence or breach of warranty. Negligence was alluded to in connection with the claim that plaintiff's employer was negligent as submitted in special interrogatories (see fn. 1, supra). Despite the fact that defendants' negligence and plaintiff's contributory negligence were not in issue, the court did give an instruction on the two elements of contributory negligence patterned after the first paragraph of BAJI Instruction No. 103--C, and an instruction on the varying amount of caution required in the words of BAJI Instruction No. 102--A prior to its revision. No other instructions defining negligence or otherwise prescribing the application of principles of negligence were given.

On this appeal plaintiff contends that the court erred in granting the defendants' motion for judgment notwithstanding the verdict because there is evidence of sufficient substantiality to support the verdict that there was a physical defect in the product which proximately caused injuries for which the defendants, as manufacturer and distributor, respectively, are strictly liable. If plaintiff establishes this contention the reversal of the judgment entered upon the granting of defendants' motion would reinstate the judgment on the verdict. (Ferran v. Mulcrevy (1935) 9 Cal.App.2d 129, 131--132, 48 P.2d 984; and see Devens v. Goldberg (1948) 33 Cal.2d 173, 181, 199 P.2d 943; Tomlinson v. Kiramidjian (1933) 133 Cal.App. 418, 422--423, 24 P.2d 559; Lauritsen v. Goldsmith (1929) 99 Cal.App. 671, 676, 279 P. 168; and discussion Espinoza v. Rossini (1966) 247 Cal.App.2d 40, 55-- 56, 55 Cal.Rptr. 205; and Gibson v. Southern Pacific Co. (1955) 137 Cal.App.2d 337, 355, 290 P.2d 347, 63 A.L.R.2d 1205.) ³

He further asserts: 'The theory of negligence is supported by evidence of sufficient substantiality to support the verdict that there was a failure to warn which deemed the product defective.' ⁴ The question of plaintiff's right to recover, because of defendants' failure to warn of possible dangerous conditions arising from the use of the tire, either on the theory of strict liability, or on the theory of negligence was withdrawn from the consideration of the jury. Unless the evidence compels a finding in his favor, he cannot rely upon either theory in support of his judgment. (Healy v. Brewster (1963) 59 Cal.2d 455, 464--465, 30 Cal.Rptr. 129, 380 P.2d 817; Zak v. State Farm, etc., Ins. Co. (1965) 232 Cal.App.2d 500, 506--507, 42 Cal.Rptr. 908; People v. Frank (1964) 225 Cal.App.2d 339, 342, 37 Cal.Rptr. 202.) This is not to say that he cannot show that there was substantial evidence to support either theory, and, upon that basis contend that the court erred in failing to submit the matter to the jury on conflicting evidence. If there is such error the judgment notwithstanding the verdict cannot be sustained. But the judgment on the verdict could not be reinstated. It would be necessary to have a new trial to resolve the conflicting evidence on the theories improperly withheld from the jury.

Finally plaintiff contends: 'The theory of res ipsa loquitur is supported by evidence of sufficient substantiality to support the verdict that the tire was defective.' Defendants correctly analyze this contention as a factor to be considered in the determination of the sufficiency of the verdict of the jury. If the application of the doctrine serves to establish substantial evidence in support of the verdict, defendants cannot complain because the jury drew the permissible inference without the assistance of the instructions which were withheld. (Seeley v. Combs (1966) 65 Cal.2d 127, 132, 52 Cal.Rptr. 578, 416 P.2d 810; Hutton v. Pagni (1959) 167 Cal.App.2d 14, 19, 333 P.2d 826.)

An examination of the record in the light of the applicable principles of procedural and substantive law indicates that the court properly concluded that the evidence produced was insufficient to support a finding of a defect in the tire which would support a judgment predicated upon the strict liability of the distributor or the manufacturer. However, since there was substantial evidence to show that the manufacturer and the distributor failed to give prospective users warning with respect to the special hazards arising out of the mounting of the tire on 'safety' rims, the trial court erred in withholding this issue from the jury and the case must be reversed and remanded for a new trial.

I. Preliminary Considerations

'The judgment can be supported only if giving plaintiff's evidence full prima facie value and indulging in every reasonable inference that can be drawn therefrom and with all conflicts resolved in plaintiff's favor, the result is a determination that there is no substantial evidence to support a judgment for the plaintiff. Neither the appellate court nor the lower court may weigh the evidence or consider the credibility of the witnesses. (Citation.) The plaintiff here may rely on that portion of testimony given under Code of Civil Procedure, section 2055, which is favorable to him and disregard the unfavorable portions. (Citation.) However, the evidence produced by plaintiff must support a logical inference in his favor, sufficient to raise more than a mere conjecture or surmise that a fact is as alleged in order to warrant submission of the question to a jury (citation), and a court should not put itself in the incongruous position of destroying logic to hold a case in court. (Citation.) It is in the light of these principles that the evidence must be reviewed.' (Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724, 731, 7 Cal.Rptr. 879, 883. See also (where issue of fact found) Reuther v. Viall (1965) 62 Cal.2d 470, 474--475, 42 Cal.Rptr. 456, 398 P.2d 792; Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 261--263, 37 Cal.Rptr. 896, 391 P.2d 168; Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 646--647, 55 Cal.Rptr. 94; Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 55--56, 46 Cal.Rptr. 552; Crane v. Sears, Roebuck & Co. (1963) 218 Cal.App.2d 855, 859, 32 Cal.Rptr. 754; Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 730--731, 31 Cal.Rptr. 132; Truck Ins. Exchange v. Stilley (1963) 213 Cal.App.2d 311, 321, 28 Cal.Rptr. 588, and Lasry v. Lederman (1957) 147 Cal.App.2d 480, 486, 488, 305 P.2d 663. Cf. (Where no issue of fact raised, or rebutted as a matter of law) Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509, 514--515, 305 P.2d 36; Simmons v. Rhodes Jamieson, Ltd. (1956) 46 Cal.2d 190, 196, 293 P.2d 26; Engstrom v. Auburn Auto. Sales Corp. (1938) 11 Cal.2d 64, 66, 77 P.2d 1059; Erickson v. Sears, Roebuck & Co. (1966) 240 Cal.App.2d 793, 800, 50 Cal.Rptr. 143; Teich v. General Mills, Inc. (1959) 170 Cal.App.2d 791, 794--795, ...