Firestone Tire & Rubber Co. v. King, 55108

• Decision Date: 20 April 1978
• Docket Number: No. 3,No. 55108,55108,3
• Citation: 244 S.E.2d 905,145 Ga.App. 840
• Parties: FIRESTONE TIRE & RUBBER COMPANY v. Louise KING
• Court: Georgia Court of Appeals

Page 905

244 S.E.2d 905

145 Ga.App. 840

FIRESTONE TIRE & RUBBER COMPANY v. Louise KING.

No. 55108.

Court of Appeals of Georgia,Division No. 3.

April 20, 1978.

Rehearing Denied May 4, 1978.

Perry, Walters, Lippitt & Custer, Jesse W. Walters, Gregory J. Digel, Alfred B. Adams, III, Albany, for appellant.

Burt, Burt & Rentz, Hillard P. Burt, Walter H. Burt, III, Albany, for appellee.

BANKE, Judge.

The appellee's husband suffered brain damage when the left front tire of a truck which he was driving blew out, causing the vehicle to go out of control and overturn. She brought this products liability claim on his behalf against the appellant, the manufacturer of the tire, alleging that the blowout had been caused by a manufacturing defect. A jury awarded her $300,000 in damages, which gave rise to this appeal.

Neither the tube which had been in the tire nor the portion of the tire in the immediate area of the blowout was recovered following the accident; however, from the portions of the tire which were recovered, it was evident that less than 20 percent of the tread had been used. This indicated exceptionally good wear, since the tire had traveled over 30,000 miles. There was no indication that the tire had been improperly cared for or abused in any way, nor was there any indication that road conditions or foreign objects in the immediate area were responsible for the blowout.

Two experts testified on behalf of the appellee, stating that in their opinion the failure of the tire was caused by a defect in material or workmanship. According to their theory, excessive flexion was produced in the area of the defect as the tire rotated, generating a "hot spot" and gradually weakening the nylon cord in that area until it was no longer functional.

The appellant's expert, on the other hand, testified that the cords were weakened not by a manufacturing defect but by an impact with something in the road an impact which could have occurred hundreds of miles prior to the blowout. According to his theory, the interior cords damaged by the impact impact eventually punctured the tube, which in turn caused progressive deflation which in turn caused progressive overheating throughout the entire tire. This overheating eventually weakened the cords, resulting in a blowout in the area of the original cord damage.

The appellee's experts and the appellant's expert were in direct conflict on the issue of whether the cords in the remaining portion of the tire exhibited signs of generalized overheating such as might have been caused by running the tire in an underinflated condition. The appellant's expert testified that the tire did exhibit such signs, giving support to his theory that the blowout resulted from a prior impact. The appellee's experts testified that the overheating was localized, giving support to their theory that a defect was responsible for the blowout.

1. In order to impose strict liability on the manufacturer of a product, "the plaintiff must show that the manufacturer's product when sold by the manufacturer was defective." Center Chemical Co. v. Parzini, 234 Ga. 868, 869(1), 218 S.E.2d 580, 582 (1975). See Code Ann. § 105-106; Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975). The appellant contends that the appellee failed to make such a showing in this case, since her experts could not specify the exact nature of the defect which, in their opinion, caused the tire to fail. Instead they merely speculated as to possibilities, such as contamination of materials or undervulcanization.

We do not agree that it was necessary for the appellee to specify the nature of the defect in order to meet her burden of proof. It has often been held that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence. See, e. g., Franks v. National Dairy Products Corp., 414 F.2d 682 (5th Cir. 1969); Smith v. Uniroyal, Inc., 420 F.2d 438 (7th Cir. 1970); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972); McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971); Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 71 Cal.Rptr. 306 (1968). Furthermore, the defect in this case could not be directly observed due to the fact that the material in the area of the blowout was destroyed by the blowout. To rule that this prevented the appellee from establishing a prima facie case would be to insulate manufacturers from liability for defective products in any case where the defect causes its own destruction. Such a result would be totally untenable.

We hold that the testimony presented a jury question as to whether the appellee's injuries were caused by a manufacturing defect in the tire. Accord Long Mfg., etc., Inc. v. Grady Tractor Co., 140 Ga.App. 320(1), 231 S.E.2d 105 (1976); Ford Motor Co. v. Lee, 137 Ga.App. 486(5, 6), 224 S.E.2d 168 (1976). Cf. Firestone Tire & Rubber Co. v. Jackson Transp. Co., 126 Ga.App. 471, 191 S.E.2d 110 (1972). Therefore, the trial court did not err in failing to direct a verdict for the appellant or to grant a new trial on the general grounds.

2. Appellee's husband drove for a trucking firm which made frequent use of Firestone tires. An employee of that firm was called as a witness and was asked by appellee's counsel whether the firm had discontinued using Firestone tires following the blowout which gave rise to this case. Appellant immediately objected and moved for a mistrial. The trial judge sustained the objection, stating that the question was improper and prejudicial and instructed the jury to disregard it. The appellant now asserts as error the failure to grant its motion for mistrial.

This enumeration is without merit. "The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. (Cits.) Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with." Atlantic Coast Line R. Co. v. Smith, 107 Ga.App. 384, 387, 130 S.E.2d 355 359 (1963). Although the question asked by appellee's counsel was a patent attempt to introduce inadmissible evidence, the question was never answered, and we do not believe that in the context of all the evidence presented during this four-day trial it so prejudiced the proceedings as to require a mistrial as a matter of law.

3. Counsel for appellee asked the following question of one of his experts on direct examination and received the following response: "Q. Were you familiar with this type of Firestone tire, Mr. Cerny, before you made this examination? A. Yes, sir, we had looked into other failures involving the Transport 1 tires." Appellant contends that it was error to deny his subsequent motion for mistrial.

This contention is also without merit. "(W)here illegal testimony is volunteered by a witness in answer to the question asked, and where such answer is ruled out, it is ordinarily not an abuse of discretion to refuse to grant a mistrial. (Cits.)" Jones v. State, 139 Ga.App. 643, 229 S.E.2d 121 (1976). The trial court promptly instructed the jury to disregard the answer as being unresponsive to the question. Accordingly, he acted within his discretion in denying the mistrial.

4. On voir dire, counsel for the appellant asked the prospective jurors whether any of them had a physical disability and received no affirmative response. Later he discovered that one of the jurors chosen to serve had an artificial leg. He moved for a mistrial on the ground that this juror's failure to respond truthfully on voir dire deprived him of information which he needed to make intelligent use of his peremptory challenges and, therefore, undermined the integrity of the jury selection process. The denial of this motion is now enumerated as error.

An attack on the jury selection process is never to be treated lightly, for the selection of an impartial jury is, as the defendant points out, "the cornerstone of the fairness of trial by jury." Melson v. Dickson, 63 Ga. 682, 686 (1879). Nevertheless, we hold that it was not error to deny a mistrial in this case. The juror in question stated in a post-trial affidavit that the loss of her leg, which had occurred 37 years earlier during a tornado, did not enter into her mind during the deliberations. Furthermore, she stated that she had not heard the question as to whether anyone had a physical disability and that, in any event, she did not consider herself to be disabled since she had lived and worked with the artificial leg all of her adult life. The appellant has presented us with no reason why, in the face of these...