Firestone Tire & Rubber Co. v. Jackson Transp. Co.

• Decision Date: 14 June 1972
• Docket Number: No. 47245,No. 3,47245,3
• Citation: 126 Ga.App. 471,191 S.E.2d 110
• Court: Georgia Court of Appeals
• Parties: , 11 UCC Rep.Serv. 311 FIRESTONE TIRE & RUBBER COMPANY v. JACKSON TRANSPORTATION COMPANY

Page 110

191 S.E.2d 110

126 Ga.App. 471, 11 UCC Rep.Serv. 311

FIRESTONE TIRE & RUBBER COMPANY v.JACKSON TRANSPORTATION COMPANY.

No. 47245.

Court of Appeals of Georgia, Division No. 3.

June 14, 1972.

Syllabus by the Court

1.In an action based upon breach of implied warranty of a product as to safety and fitness for use the court should include in its charge the doctrine of 'legal accident' where the pleadings and evidence indicate this defense to exist as to causation when express written request is made for the inclusion of such charge.

2.Where a motor vehicle is completely destroyed, the maximum amount of recovery is the difference between the market value immediately before the occurrence and immediately afterwards with no allowance for loss of use.

Martin, Snow, Grant & Napier, Charles M. Stapleton, Macon, for appellant.

W. F. Blanks, Montezuma, Jones, Cork, Miller & Benton, Carr G. Dodson, Macon, for appellee.

CLARK, Judge.

This appeal is by a seller of a truck tire from a verdict in favor of buyer for damages to a tractor-trailer combine resulting from a blowout of a right front tire.

The complaint was in two counts, one based on negligence and the other on the theory that the tire 'was not adequate and safe or fit for the purpose for which it was manufactured or sold.'As the evidence failed to present the requisite proof as to negligence, the court sustained a motion for a directed verdict for defendant as to this count.Accordingly, we are concerned only with the implied warranties contained in Code Ann. §§ 109A-2-314and109A-2-315.In addition to denying the material allegations of the complaint defendant's answer averred as a special defense that 'it is not liable to plaintiff in any amount whatsoever in that the occurrence alleged in plaintiff's complaint resulted from an accident within the meaning of Georgia law for which this defendant cannot be held liable.'

The evidence showed Jackson's purchase on December 23, 1968, of a Firestone transport truck tire from defendant's retail store, its placement on the right front wheel of Jackson's tractor, regular inspections of the tire by plaintiff including checks on May 31, 1969, the day of the trip during which the tire exploded and blew out.As a result the vehicle became uncontrollable, collided with another truck, and then careened off the highway where it overturned.The proof showed the tractor to be a total loss and the trailer to be repairable which repairs were made.The tire was recovered and introduced in evidence.It exhibited several clues as to the cause of the blowout, there being an area of separation between the shoulder rubber and the cord body of the tire as well as a long diagonal cut on the tire.Jackson testified he had made a search of the area and found nothing on the highway and that he did not know the cause of the blowout.

The transcript reveals a battle between experts (two for plaintiff and one for defendant).Plaintiff's experts were of the opinion that a separation occurred within the tire from defective workmanship which resulted in a weakness and caused the blowout.Defendant's expert disagreed, he being of the opinion the tire failure was due to its having received a penetrating cut across the cords from a sharp foreign object which weakened the tire to the point it was unable to carry its load and finally caused it to blow out.

The jury accepted the views of plaintiff's experts and returned a verdict for the $16,826.408 the exact amount sued for.

We have two questions for determination.These are: (1) Should the judge have included in his charge the legal principle of 'accident' as contained in Code Ann. § 102-103 which was pleaded in the answer and as requested by defendant?(2) Was there an error in the charge as to the measure of damages because one item, the tractor, was a total loss?

1.Appellee contends that it would be inappropriate to permit the question of 'legal accident' to be charged in a case based upon implied warranty which has a contractual connotation whereas the decided Georgia cases permitting the theory of accident to be considered by the jury have been in negligence actions.Some jurisdictions have held in accordance with this view.Latimer v. Sears Roebuck & Co.(5th Cir.1960), 285 F.2d 152, 86 A.L.R.2d 307;Sterling Alum. Products v. Shell Oil(8th Cir.1944), 140 F.2d 801;Whiteley v. Webb's City, Fla., 55 So.2d 730;Hasson Groc. Co. v. Cook, 196 Miss. 452, 17 So.2d 791.Others have regarded an action for implied warranty to be in tort.B. F. Goodrich Co. v. Hammond(10th Cir.1959), 269 F.2d 501;Gosling v. Nichols, 59 Cal.App.2d 442, 139 P.2d 86;Greco v. S.S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 115 A.L.R. 1020.

Georgia has in effect treated the implied warranty as a creature of statute, sui generis.Judge Hall pointed this out in Wood v. Hub Motor Co., 110 Ga.App. 101, at page 104, 137 S.E.2d 674 at page 678 when he stated that 'The statutory implied warranty is 'an obligation that the law places upon a party as a result of some transaction entered into'; it is not a contractual obligation.(Citations.)'Judge Hall also went on to say that 'Negligence is not an element of breach of warranty.If goods do not conform to the warranty, the warrantor's utmost care will not relieve him of liability.'P. 105, 137 S.E.2d p. 679.Accordingly, this court cannot deal with the defense of 'legal accident' in an implied warranty case as being based on either contract or tort.

What defenses are available against an alleged breach of warranty?¹In Jacobs Pharmacy Company, Inc. v. Gipson, 116 GaApp.760, 762, 159 S.E.2d 171, 173, this court said: 'In an action predicated on breach of warranty, there is of course no defense per se of contributory negligence, but it is a jury question as to whether the injuries resulted from the breach, or whether the plaintiff's acts in using a drug contrary to the instructions on the package was so unreasonable as to be the sole proximate cause of her injuries.'

Thus obviously a defendant may demonstrate in his defense that the product was in fact merchantable and fit for the purpose intended, or that if there was a deficiency in such regard there was no causal connection between the breach and the damages sued for, or that some other factor was the sole proximate cause of the damage.

Appellee recognizes as much but argues that 'accident' is connected with the case only in the sense that it is inextricably interwoven with the matter of proximate cause; that the charge as given adequately protected the defendant's position in the premises.

The trial court charged: 'Now you ladies and gentlemen have heard testimony in this case about the tread separating from the cord body of the tire in question.If you are unable to decide from the evidence submitted to you what caused such separation or if you determine there was no defect in the tire caused by the manufacturer, then it would be your duty to end your deliberations and return a verdict for the defendant.On the other hand if you find there was a manufacturer's defect in the tire and this defect was the proximate cause or a contributing cause entering into the proximate cause of plaintiff's damages then you would find for the plaintiff in accordance with the measure of damages to be given you in this charge.'

We are of the opinion, in view of the evidence and a proper application of the law that the defendant had the right to contend not only that the tire was not defective in the manner asserted but had the further right to demonstrate what in its view caused the occurrence, i.e., that the blowout was caused by running over a road hazard not impliedly warranted against or, stated otherwise, that the blowout was caused by an accident, unmixed with any breach of warranty by the defendant or breach of duty by plaintiff.Cf.Cartey v. Smith, 105 Ga.App. 809, 812, 125 S.E.2d 723;Southern Express Co. v. Hughes, 23 Ga.App. 224, 97 S.E. 860.

Not only does the evidence in this case with the conflict between experts as to causation indicate that the theory of 'legal accident' should have been charged, but we are also influenced by a fact of life characteristic of our automobile age which was thus expressed in Shramek v. General Motors Corp. et al., 69 Ill.App.2d 72, 216 N.E.2d 244: 'The mere fact of a tire blowout does not demonstrate the manufacturer's negligence, nor tend to establish that the tire was defective.Blowouts can be attributed...