Dayton Tire & Rubber Co. v. Davis, No. Z-378

CourtCourt of Appeal of Florida (US)
Writing for the CourtBOYER; MILLS, J., concurs and SMITH; SMITH
Citation348 So.2d 575
Docket NumberNo. Z-378
Decision Date29 June 1977
PartiesDAYTON TIRE AND RUBBER COMPANY, Appellant, v. Clyde E. DAVIS, Individually, and Clyde E. Davis, Administrator of the Estate of Ronnie Davis, Deceased minor, Appellee/Cross-Appellant, v. JOHN MOTT'S SUNOCO SERVICE, INC., Cross-Appellee.

Page 575

348 So.2d 575
DAYTON TIRE AND RUBBER COMPANY, Appellant,
v.
Clyde E. DAVIS, Individually, and Clyde E. Davis, Administrator of the Estate of Ronnie Davis, Deceased minor, Appellee/Cross-Appellant,
v.
JOHN MOTT'S SUNOCO SERVICE, INC., Cross-Appellee.
No. Z-378.
District Court of Appeal of Florida, First District.
June 29, 1977.
Rehearing Denied Aug. 22, 1977.

Page 577

Joe C. Willcox, of Dell, Graham, Willcox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for appellant.

Kenneth R. Cate, of Billings, Frederick, Wooten & Honeywell, Orlando, for appellee/cross-appellant.

William C. O'Neal, of Chandler, O'Neal, Gray & Lang, Gainesville, for cross-appellee.

BOYER, Chief Judge.

This is an appeal from a final judgment entered on a jury verdict in a case brought by Clyde E. Davis individually and as administrator of the estate of Ronnie Davis, a

Page 578

deceased minor, against Dayton Tire and Rubber Co. and John Motts Sunoco Service, Inc.

The basic facts are: On November 25, 1970, Ronnie Davis, the minor son of the plaintiff Clyde E. Davis, was fatally injured in an automobile accident which allegedly occurred as a result of a tire "blow-out". The subject tire, a Dayton 9-70 Sport Tire was manufactured by defendant Dayton, purchased by Davis from defendant Mott and installed on the wheel of the Davis car by one of Mott's employees. At the time of the accident the tire was approximately six months old and had been driven approximately 4,000 miles.

Several points have been raised and briefed. Since we find that we must reverse for a new trial we will consider and discuss separately each point raised which reasonably may be expected to again become an issue upon retrial. Additional facts relevant to the issue under consideration will be reserved for that point in this opinion. Facts which, though relevant to the case, are not pertinent to resolution of any particular issue before us will be omitted unless recitation is necessary for cohesiveness or understanding.

We will first consider the cross-appeal by appellee Davis, plaintiff in the trial court, wherein he seeks review of that portion of the final judgment in favor of John Mott's Sunoco Service, Inc. Mott, by motion to dismiss the cross-appeal, has raised several academically interesting points which, however, we find unnecessary to decide because of our determination that the issues raised by the cross-appeal are without merit.

Count four of the amended complaint dealt with alleged negligence on the part of Dayton. It was there charged that Dayton used defective material in the construction of the subject tire, failed to make necessary and reasonable inspection of the tire and failed to warn Davis of the defects. Count five alleged that as the retail seller of the tire Mott had a duty of inspecting the tires which it sold for defective and unsafe conditions and of warning purchasers of potential dangers. It was further charged that Mott knew, or by the exercise of ordinary care and reasonable inspection should have discovered, the defective condition of the tire and that he should have warned the plaintiff concerning it. It was also alleged that Mott had the duty of instructing the decedent and the plaintiff, who had accompanied his son when the tire was purchased, concerning the use of the tire. There was evidence by experts that the tire was in fact defective and evidence by others that it was not. The cause of the defect was also in controversy. However, there was no evidence at all that if indeed the tire was defective when sold that the defect was discoverable by the retailer. In point of fact, all evidence on that specific point was to the contrary.

One witness testified that he observed a cut or rupture on the inside of the valve stem. He did not know whether Dayton made the valve stem nor could he testify as to when the rupture or tear occurred and had no way of knowing whether the valve stem was defective on the date of the sale of the tire by Mott to Davis. Mott's attorney objected to the evidence regarding the valve stem as not being within the issues framed by the pleadings whereupon the plaintiff's attorney moved to amend the pleadings "to conform to the evidence as it developed at trial", urging there and here that amendments to pleadings are to be freely allowed, citing Fla.R.Civ.P. 1.190. The learned trial judge properly denied that motion. A trial judge has a very broad discretion in determining whether to permit an amendment to the pleadings, particularly when the motion is made after commencement of the trial. It is axiomatic that, when properly objected to, evidence on issues not framed by a reasonable construction of the pleadings should be rejected. The record before us reveals that the pleadings were confined to the tire itself and not the "entire pressure vessel" (presumably the tire, wheel and valve stem) as now phrased and urged by the plaintiff. The record also reveals that Mott's attorney objected at his first opportunity to any evidence not related to the tire itself and that

Page 579

that objection was sustained. Accordingly, there was no evidence to which the pleadings could have been amended to conform.

Davis cites Hart Properties, Inc. v. Slack, 145 So.2d 285 (Fla. 3d DCA 1976) for the proposition that amendments to the pleadings should be allowed at any stage where such amendments will foster the interest of justice and not lead to prejudice to the opposing party. We have no quarrel with that proposition. However, the term "interest of justice" is applicable to all parties, not just plaintiffs. The record sub judice is sufficient to sustain the implicit finding of the trial judge that to have allowed an amendment of the pleadings in the middle of the trial to raise an issue not theretofore contemplated would have resulted in an injustice to the defendant Mott.

In his assignments of error Davis alleges that the trial court erred in granting Mott's motion for a directed verdict "on the issue of negligent inspection of the tire which blew out on plaintiff's decedent's vehicle." Although a point is presented in Davis' brief as to the propriety of the direction of verdict in favor of Mott, at no place in the argument on that point is there any statement that a verdict was directed, nor as to whether the direction of verdict was only partial or complete as to liability; nor is there any reference to the pages of the nine volume record-on-appeal to lead us to the portion of the record pertaining to the directed verdict. Mott's brief, also sans reference to the record, states that the trial court directed a verdict for Mott "on the question of negligent inspection or failure to inspect the tire in question." The final judgment here appealed quotes the jury verdict which contains, inter alia, the sentence "We, the Jury find for the Defendant, John Mott."

Fla.App. Rule 3.7 f. (3) clearly requires reference to the pages of the original record. The purpose of that rule is to guide the judges of the court, when reading the briefs, to the relevant portions of the record to resolve conflicts and confusion in the assertions contained in the briefs. It would not be inappropriate, upon a finding of a flagrant disregard of that rule, for the court to strike the parties' brief.

We find no demonstration by appellant of error in the direction of the verdict in favor of Mott.

Finally by way of the cross-appeal, Davis urges error in the admission of testimony of the investigating police officer concerning air pressure found after the accident in the tires on the Davis car which did not blow out. The evidence was admitted at the instance of Dayton apparently for the purpose of bolstering its contention that the tire failure resulted from underinflation. Davis argues that such evidence was not admissible as circumstantial proof of underinflation prior to the fatal accident because the evidence revealed presence of grass between the wheel rim and the bead of the tire. We are of the view that such matters affect the weight of the evidence and not its admissibility; weight of the evidence, under such circumstances, being for the trier of fact. The trial judge did not therefore so err.

The judgment appealed, insofar as it relates to John Mott's Sunoco Service, Inc., is affirmed.

We now turn to consideration of the points raised by Dayton, that defendant having appealed the final judgment against it in the sum of $90,000 in accordance with the verdict of the jury.

Four experts testified at the trial, two at the behest of the plaintiff and two at the behest of Dayton. Mr. Frank Flannigan, called as an expert witness by the plaintiff, testified that the tire which blew out failed because of a separation in the plies of the sidewall which could have been caused either by a blow to the tire or by a defect in manufacture. He did not, however, find a defect in the tire. Dr. Kurt, plaintiff's second expert witness, testified that it was his opinion that a defect which caused the blow out was in the tire at the time it left the factory. The defective condition, he opined, consisted of burned and thereby weakened polyester cords within the tire which, he testified, could only have been

Page 580

burned prior to installation in the tire since there was no indication of heat in the rubber surrounding the burned cords to suggest that the heat could have occurred after the tire had been assembled. He was, however, unable to identify the source of the heat which he opined caused the defect and deteriorated condition, testifying that the heat would have to have been sufficient to melt the polyester and that although he was familiar with tire manufacturing plants he had never seen a source of heat in the manufacturing process which would produce the deterioration which he described. He further testified that the tire curing process could produce neither the necessary heat nor the spot burning which he testified occurred.

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13 practice notes
  • Cassisi v. Maytag Co., No. PP-125
    • United States
    • Court of Appeal of Florida (US)
    • March 11, 1981
    ...to be considered in determining whether the latter inference should be imposed. While the tire in Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 1977), rev'd Goodyear Tire & Rubber v. Hughes Supply, Inc., supra, which blew out after 4,000 miles of use, was not favored with t......
  • O'CONNOR v. Kawasaki Motors Corp., USA, No. 88-6029-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 8, 1988
    ...1st Dist.Ct.App.1982); American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th Dist.Ct.App.1981); Dayton Tire and Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st Dist.Ct.App.1977). A manufacturer or retailer has a strict duty to warn only when the product is considered "inherently dangerous" a......
  • Otis Elevator Co. v. Chambliss, Nos. BL-401
    • United States
    • Court of Appeal of Florida (US)
    • August 11, 1987
    ...1976); Auto Specialties Manufacturing Company v. Boutwell, 335 So.2d 291 (Fla. 1st DCA 1976); Dayton Tire and Rubber Company v. Davis, 348 So.2d 575, 584 (Fla. 1st DCA 1977) (decision quashed on other grounds, 358 So.2d 1339 (Fla.1978)); Beach v. Halifax Hospital District, 360 So.2d 114 (Fl......
  • Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., Nos. 50411 and 52360
    • United States
    • United States State Supreme Court of Florida
    • March 2, 1978
    ...1 Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 336 So.2d 1221 (Fla. 4th DCA 1976); Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 2 Art. V, § 3(b)(3), Fla.Const. 3 60 So.2d at 926. 4 Dean Prosser has suggested that the Latin label has created confusion in the cases to ......
  • Request a trial to view additional results
13 cases
  • Cassisi v. Maytag Co., No. PP-125
    • United States
    • Court of Appeal of Florida (US)
    • March 11, 1981
    ...to be considered in determining whether the latter inference should be imposed. While the tire in Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 1977), rev'd Goodyear Tire & Rubber v. Hughes Supply, Inc., supra, which blew out after 4,000 miles of use, was not favored with t......
  • O'CONNOR v. Kawasaki Motors Corp., USA, No. 88-6029-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 8, 1988
    ...1st Dist.Ct.App.1982); American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th Dist.Ct.App.1981); Dayton Tire and Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st Dist.Ct.App.1977). A manufacturer or retailer has a strict duty to warn only when the product is considered "inherently dangerous" a......
  • Otis Elevator Co. v. Chambliss, Nos. BL-401
    • United States
    • Court of Appeal of Florida (US)
    • August 11, 1987
    ...1976); Auto Specialties Manufacturing Company v. Boutwell, 335 So.2d 291 (Fla. 1st DCA 1976); Dayton Tire and Rubber Company v. Davis, 348 So.2d 575, 584 (Fla. 1st DCA 1977) (decision quashed on other grounds, 358 So.2d 1339 (Fla.1978)); Beach v. Halifax Hospital District, 360 So.2d 114 (Fl......
  • Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., Nos. 50411 and 52360
    • United States
    • United States State Supreme Court of Florida
    • March 2, 1978
    ...1 Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 336 So.2d 1221 (Fla. 4th DCA 1976); Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 2 Art. V, § 3(b)(3), Fla.Const. 3 60 So.2d at 926. 4 Dean Prosser has suggested that the Latin label has created confusion in the cases to ......
  • Request a trial to view additional results

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