Coulter v. Michelin Tire Corp.

Decision Date06 October 1981
Docket NumberNo. 11336,11336
PartiesNathan L. COULTER, Plaintiff-Respondent, v. MICHELIN TIRE CORPORATION, Defendant-Appellant.
CourtMissouri Court of Appeals

Flavius B. Freeman, Neale, Newman, Bradshaw & Freeman, Springfield, John M. Kenney, New Hyde Park, N.Y., for defendant-appellant.

Benjamin J. Francka, Raymond E. Whiteaker, John E. Price, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for plaintiff-respondent.

HOGAN, Judge.

In this action based on strict liability in tort, plaintiff Nathan Coulter has had a verdict and judgment in the amount of $140,000 against defendant Michelin Tire Corporation. Defendant appeals.

The casualty sued upon occurred July 22, 1970. Plaintiff was employed as a tire mounter by a corporation known as "Tire Town of Springfield." Shortly before noon, plaintiff and two other tire changers were mounting a new set of Michelin tires on a Lincoln Continental automobile. Plaintiff removed a tire and rim from the vehicle and placed it on a tire changer. He removed the tire which was on the rim and undertook to mount the new tire. While the plaintiff was attempting to seat the "bead" of the new tire against the rim, the tire exploded. Plaintiff sustained severe, disabling injuries. This action followed.

On this appeal, the defendant has briefed and argued five assignments of error. Defendant's principal point is that plaintiff made no submissible case. In connection with this point, a few preliminary observations are appropriate. The cause was tried and submitted upon the theory enunciated by our Supreme Court in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362, 364 (Mo.1969). Therein, the court "... recognized the concept of strict liability in tort as stated in 2 Restatement, Law of Torts, Second, § 402A." Blevins v. Cushman Motors, 551 S.W.2d 602, 606(1) (Mo.banc 1977). In order to recover under the doctrine of strict liability, a plaintiff must establish that: (1) the product was defective and dangerous when put to a use reasonably anticipated by the manufacturer; and (2) the plaintiff sustained injury or damage as a direct result of the defect. Blevins v. Cushman Motors, supra, 551 S.W.2d at 607(2, 3); Rogers v. Toro Manufacturing Company, 522 S.W.2d 632, 637(4-6) (Mo.App.1975). And, in order to establish the first element of his case, a plaintiff has the burden to show both (a) that the defect existed when the product left the manufacturer's control and entered the stream of commerce, Brissette v. Milner Chevrolet Company, 479 S.W.2d 176, 181 (Mo.App.1972), 1 and (b) that the product was being put to a use reasonably anticipated by the manufacturer. Keener v. Dayton Electric Manufacturing Company, supra, 445 S.W.2d 365(6); Rogers v. Toro Manufacturing Company, supra, 522 S.W.2d at 637; Restatement (Second) of Torts § 402A, Comment h. (1965).

Fairly paraphrased, defendant's submissibility argument is that plaintiff failed to show the existence of any defect which would make the tire unreasonably dangerous when put to a reasonably anticipated use because: (1) there was no substantial evidence that there was any defect present when the maker surrendered possession; (2) the testimony of plaintiff's expert that the tire had a "kinked" bead wire is without probative value, and (3) the evidence establishes as a matter of law that plaintiff's injuries were caused by abnormal use of the tire. We set to one side the defendant's contention that its motion for judgment n.o.v. should have been sustained because plaintiff failed to adduce proof of the very defect pleaded. This case is very similar to Nielson v. Armstrong Rubber Co., 570 F.2d 272 (8th Cir. 1978), upon the relevant law and facts, and the issue submitted must be regarded as having been tried by implied consent pursuant to Rule 55.33(b), Missouri Rules of Court (9th ed. 1978). See Nielson v. Armstrong Rubber Co., supra, 570 F.2d at 275(1, 2). We also bear in mind that when the submissibility of a plaintiff's cause is challenged on appeal, the plaintiff is entitled to the benefit of all the evidence construed in the light most favorable to the result reached, together with the reasonable inferences to be drawn therefrom. Tucker v. Central Hardware Company, 463 S.W.2d 537, 540 (Mo.1971); Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 569-570(6) (Mo.App.1977), 89 A.L.R.3d 196, 202 (1977); Lifritz v. Sears, Roebuck and Company, 472 S.W.2d 28, 31(2) (Mo.App.1971).

Defendant's assertion that the plaintiff adduced no substantial evidence of any manufacturing defect is obliquely put in terms of the admissibility of evidence, but its position is clear. As put, the argument is that the testimony of plaintiff's expert should not have been received because the expert did not examine the tire until October 1977, and there was no showing that the tire was in the same condition then as it was on July 22, 1970.

We conclude the proof was sufficient to show the existence of a defect on July 22, 1970. To begin with, the record justifies the inference that the tire was new and unused when the plaintiff attempted to mount it and was injured. Witness Pierson testified that the tires he and plaintiff were mounting were taken out of stock, "wrapped in some wrappings." Pierson explained that "you take a knife and go between the two beads and cut the paper ... and you clean the inside of the tire out." The "paper" or "trash" was then cleaned out of the tire, some "little plastic things" which separated the "beads" were removed, and the tire was mounted. One Boswell, plaintiff's "straw boss" at the time, testified that he examined the tire after plaintiff was injured. Being asked if the tire appeared to be in the same condition as it had been at the time of plaintiff's injury, Boswell replied, "It looks the way I remember it, yes."

By answer to interrogatories, defendant admitted it received the tire for inspection on August 20, 1970, and defendant's expert Ochs testified that photographs of the tire were taken about that time. Ochs had seen those photographs. The answers to interrogatories show the defendant returned the tire to plaintiff's employer in January 1971. Defendant was again in possession of the tire from November 1972 to April 25, 1973, when it was again returned to the plaintiff's employer, Tire Town of Springfield. This action, we note, was commenced in August 1974, although it was not tried until November 1978.

Ochs appeared at the trial. He was employed as "director of product analysis" for the Michelin Tire Corporation. He testified that he had seen the photographs taken in 1970, and based on his examination of those photographs and his examination of the tire in 1977, the tire appeared to be in the same condition "in terms of physical damages" as it was when it was first received by the defendant in August of 1970. 2 Mr. Ochs was asked about some raised striations (we count 12) which appear at intervals of about 61/2 inches around the circumference of the tire. Counsel referred to "those little marks." Mr. Ochs explained that the raised striations are called "mold flesh" and represent "excess" which oozes out during the manufacturing process. Ochs was also asked, "Can you tell whether or not this tire has ever been mounted before and run on the highway?" He answered, "I'd say from the condition of the tread face it has not been run."

When plaintiff's expert Garvick first saw the tire in 1977, it was still in possession of plaintiff's employer. Mr. Garvick testified that after he took possession of the tire, he measured the tread depth, and from this measurement he determined that the tire was a new tire which had never been in road service. This witness also observed the "vent lines (striations) from the segment(s) of the mold...." He continued: "If the tire had been in service, of course, those would be worn, so I knew that the tire had not been in service but something happened to it before it got into service." Garvick also unequivocally stated that the "kinked beads" (the defect alleged to have caused plaintiff's injuries) had been produced at the time of manufacture. This witness also testified that he found no "external damage" to the tire.

Perhaps the best evidence that the tire is in the "same condition" as it was at the time of the accident is the tire itself. As the tire appears before us, raised striations produced in the manufacturing process are clearly visible; it is obvious that the tire has not been used.

The rule is that the existence of a manufacturing defect may be proved by any species of evidence, direct or circumstantial, from which a jury may infer the existence of such defect without resort to conjecture and speculation. Weatherford v. H.K. Porter, Inc., 560 S.W.2d 31, 33-34(2, 3) (Mo.App.1977); Winters v. Sears, Roebuck and Co., supra, 554 S.W.2d at 569(5), 89 A.L.R.3d at 202; Brissette v. Milner Chevrolet Company, supra, 479 at 181-182(5). The testimony of an expert may constitute substantial evidence of a manufacturing defect in a tire, even though the tire has been used or partially destroyed. Smith v. Uniroyal, Inc., 420 F.2d 438, 441-442(4) (7th Cir. 1970); Brissette v. Milner Chevrolet Company, supra, 479 S.W.2d at 181-182; Firestone Tire & Rubber Co. v. King, 145 Ga.App. 840, 244 S.E.2d 905, 908-910(1-4) (1978); Mullen v. General Motors Corporation, 32 Ill.App.3d 122, 336 N.E.2d 338, 344(4-6) (1975). In this case, the jury could reasonably infer: (1) that the tire was a new, unused tire when it exploded and injured the plaintiff; (2) that the tire had been repeatedly examined during the long period which elapsed between the accident and the trial; two experts who examined it found no signs of use or external damage to the tire sufficient to cause the "bead wire" to break; (3) that in the opinion of Mr. Garvick, plaintiff's expert, the defect had been produced when the tire was manufactured, and (4) that at the...

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