Craig v. Burch

• Decision Date: 17 November 1969
• Docket Number: No. 7787,7787
• Citation: 228 So.2d 723
• Parties: George E. CRAIG and James Sullivan v. J. K. (Woody) BURCH, d/b/a Burch Tire Company et al.
• Court: Court of Appeal of Louisiana — District of US

Page 723

228 So.2d 723

George E. CRAIG and James Sullivan v. J. K. (Woody) BURCH, d/b/a Burch Tire Company et al.

No. 7787.

Court of Appeal of Louisiana, First Circuit.

Nov. 17, 1969.

Rehearing Denied Dec. 22, 1969.

Clifton Carl, New Orleans, for appellants.

Maurice Friedman, New Orleans, for appellees.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

Plaintiffs appeal the judgment of the trial court denying recovery of damages resulting from an automobile accident allegedly caused by a defectively recapped tire purchased from defendant, J. K. (Woody) Burch, d/b/a Burch Tire Company (Burch). The trial court found the tire was in fact defective but that the negligence of plaintiff driver, George E. Craig, was the sole proximate cause of the accident. On this basis, Craig and his guest passenger, James Sullivan, were denied recovery, hence this appeal. We disagree with the determination that plaintiff Craig's negligence was the sole proximate cause of the accident. We therefore reverse and render judgment for appellants.

Montgomery Ward, original retailer of the recapped tire, and Gates Rubber Company, tire manufactuer, were also made defendants. Plaintiffs have not prosecuted their appeals as to these defendants. Consequently, Burch is the sole appellee herein.

On January 8, 1966, Burch sold Craig three recapped tires. Burch mounted the tires on Craig's 1957 Oldsmobile, one on the right front wheel, and inflated them to 32 pounds pressure. On January 16, 1966, Craig was proceeding in his vehicle from New Orleans to Angola, Louisiana, accompanied by his guests, Sullivan and one Emma Morgan. Sullivan occupied the right side of the front seat; Mrs. Morgan was sitting in the middle. The accident occurred on Highway 61, approximately 8 miles north of Baton Rouge. It is conceded the recap on the right front tire of Craig's car became separated from the tire carcass. Craig, upon hearing a bumping noise and feeling his car pull to the right, cut sharply to his left. The vehicle went out of control and overturned.

Appellants contend the accident occurred solely due to the failure of the recap. Appellee maintains the tire was properly recapped and that the accident occurred solely bacause of Craig's fault in (1) traveling at an excessive speed; (2) acting unreasonably by 'snatching' his vehicle to the left causing him to lose control, and (3) allowing Mrs. Morgan to interfere with his driving ability by leaning on Craig while he was driving.

Craig testified he was traveling northerly on a two-lane, paved highway at a speed between 65 and 70 miles per hour under normal weather conditions. Suddenly his right front tire made several 'bounces' giving forth a 'Bloomp, Bloomp, Bloomp' sound and his vehicle veered sharply to the right onto the right shoulder of the road. Craig then pulled the steering wheel to his left to correct the vehicle's course. The automobile went out of control, skidded sideways down the highway, struck a culvert, overturned completely and landed upright on its wheels. It is undisputed that following the accident, the recap was found to have separated from the tire carcass. Craig denied Mrs. Morgan was asleep with her head on his shoulder at the time of the accident.

Mrs. Morgan's testimony was simply that she was asleep with her head on Sullivan's left shoulder. She awoke while the car was overturning in the air and recalled nothing further pertaining to the mishap.

Plaintiff Sullivan in essence corroborated Craig's testimony regarding the speed of the vehicle at the time of the accident. Sullivan stated further that he heard a noise made by something striking the right front fender of the car. He also testified that Craig's corrective maneuver was made after the tire made about two 'bloops'. He was of the opinion Craig could not help losing control of the vehicle.

James B. Howard, state trooper, arrived at the scene approximately two minutes after the accident occurred. He observed that the right front tire of plaintiff's vehicle was still inflacted but that the recap tread was separated from the carcass. Trooper Howard stated the posted speed limit was 60 miles per hour. He observed skidmarks beginning in the northbound lane curving westerly into the west ditch, thence in the ditch to a culvert, across the culvert head to where the vehicle came to rest. For a distance of about thirty feet there were no skid marks because the vehicle was airborne. Trooper Howard believed the car turned completely over in the air and landed on its wheels. He found no damage to the vehicle. According to Howard, the right front wheel skidded 241 feet, the right rear 263 feet, the left front 67 feet and the left rear 56 feet. The import of the Trooper's testimony is that the vehicle skidded 49 feet on the left shoulder of the road, continued broadside 79 feet in the drainage ditch, struck the culvert, flipped over and traveled an additional 105 feet to its resting place. The Trooper found no skid marks on the right shoulder of the road.

Narration of the procedure employed in recapping tires is believed essential to a proper understanding of the question of alleged negligence and breach of warranty in selling plaintiff Craig a defectively recapped tire. It appears that tires selected for recapping should be chosen only after careful inspection for cuts, holes, breaks and other imperfections. If the carcass has any significant holes or breaks, they are repaired; if unrepairable, the carcass is discarded and not used. Because extreme heat is used in the recapping, it is of the utmost importance that all tires be thoroughly dried before the process is begun. This is so because if moisture, vegetation or other foreign matter is allowed to remain in holes or cuts in the carcass, the heat applied in recapping causes steam or gas to form in the holes or cuts resulting in what is called a 'mold blow', which is a separation between the tread and carcass. After the tire is inspected and dried, it is then buffed with an electrical machine to remove all excess rubber from the carcass and smooth its surface for application of the recap tread. An adhesive is then applied to affix the 'camel back', a trade mold. The tube is inflated to maintain the with a tube inside, is then placed in a mold. The tube is inflacted to maintain the tire's shape and insure a good bond between carcass and camel back. The tire is then subjected to heat of approximately 300 which binds the tread to the carcass. When this process is completed, the tire is immediately inspected, while still hot, for possible mold blow which will appear in the form of a bump or blister on either the inside or outside of the carcass. When a tire cools, blisters resulting from mold blow gradually disappear as the tread and carcass still remains. It is conceded that tires awaiting recapping tend to sweat in storage. Standard procedure dictates that tires be dried in a specially constructed drying room before being recapped.

Charles M. Strader, a recognized recapping expert, testifying in plaintiffs' behalf, stated the tire in question suffered a mold blow . He readily pointed to a cut which he found responsible for the failure. He was of the opinion proper examination while the tire was still hot should have disclosed this abnormality. Mr. Strader expressed the view that tires to be recapped should be stored in a room having proper ventilation to allow thorough drying and that proper procedure required that tires be dry or dried before recapping. He explained that recaps are designed to operate at highway speeds and that the accident in question would not produce the separation that occurred. He also stated that a separation involving 360 of tread, as in this case, would give only a split second warning and would develop in less than 100 feet of highway travel. In addition, Mr. Strader questioned the advisability of recapping this particular tire upon finding it was 'pretty old'. In Strader's opinion, the skidding of the vehicle and its overturning had no connection with the separation of the tread from the tire.

Everett H. Gibbs, recapping expert, called on behalf of defendant, testified the tire in question had little mileage since being recapped. He also found the tire had not run very long with the separation before the tread came off. He was of the view the cut identified by Strader was probably the origin of the tread separation. Mr. Gibbs conceded a purchaser may reasonably expect a recapped tire will perform safely at highway speeds but that normal highway speeds sustained sufficiently long could produce sufficient heat to cause a mold blow. Gibbs agreed with Strader's conclusion that the skidding and overturning of Craig's car did not cause the tire failure. Based on tire age and evidence of former repair, Gibbs considered that perhaps the carcass should have been rejected for recapping. He stated that 200 of heat are generated by a tire going 70 miles per hour but that in the recapping process heat up to 300 was used. He indicated the tire had a mold blow. Mr. Gibbs also stated a recapped tire with a mold blow would bump if placed on a car while still hot, but if allowed to cool before being used, it would ride smoothly.

Woods Burch, defendant's brother and shop foreman, testified he inspected all tires for recapping and would pass those having a small nail hole but reject those having tread cuts, breaks or cracks . He agreed that if the tire in question had a tread cut, it should have been rejected if the cut were one that could be found. He could not, however, after examining the tire in court, locate the cut previously identified by Strader and Gibbs. At one point Mr. Burch indicated it was his policy to caution purchasers that recapped tires were unsafe for highway driving. He did not, however, make the sale to plaintiff and does not know whether some other employee so warned Craig. This testimony, however, is inconsistent with his...