Forry v. Gulf Oil Corp.

• Decision Date: 03 January 1968
• Citation: 237 A.2d 593,428 Pa. 334
• Parties: Marlin FORRY, Appellant, v. GULF OIL CORPORATION, George Keller, Individually and Trading as Keller's GulfService, Gulf Tire & Supply Company, and B. F. Goodrich Company
• Court: Pennsylvania Supreme Court

Page 593

237 A.2d 593

428 Pa. 334

Marlin FORRY, Appellant, v. GULF OIL CORPORATION, George Keller, Individually and Trading as Keller's GulfService, Gulf Tire &

Supply Company, and B. F. Goodrich Company.

Supreme Court of Pennsylvania,

Jan. 3, 1968.

Rehearing Denied Feb. 8, 1968.

Macey E. Klein, Hurwirtz, Klein, Benjamin & Brown, Harrisburg, for appellant.

W. E. Shissler, Naman, Smith, Shissler & Hall, Harrisburg, for Geo. Keller.

Huette F. Dowling, Dowling & Dowling, Harrisburg, for B. F. Goodrich Co.

James K. Thomas, Metzger, Hafer, Keefer, Thomas & Wood, Harrisburg, for Gulf Tire & Supply Co.

Before BELL, C.J., and MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.

JONES, Justice.

This appeal attacks the propriety of an order of the Court of Common Pleas of Dauphin County which refused to remove a compulsory nonsuit entered at the trial of a trespass action.

On February 27, 1957, Thomas Wagner purchased a new snow tire from George Keller, the operator of a Harrisburg service station. This tire had been manufactured by B. F. Goodrich Co., (Goodrich), distributed to Gulf Tire & Supply Co., (Gulf Tire) and sold by the latter to Keller.

Upon purchase of the tire, Keller mounted it ¹ on the right rear wheel of Wagner's motor vehicle, after first having inserted in the tire Wagner's old inner tube which contained three patches. The next day, Wagner, having been informed by a passing motorist that his right rear wheel was 'wobbling', drove to a service station operated by Marlin Forry to have the tire and the wheel checked. ² At Forry's station it was noted that the inner side of the tire at one point gave the appearance of being 'unseated'. In an attempt to remedy this situation, Forry removed the tire from the wheel, placed it upon a tire mounting machine, first deflated and then partially inflated the tire, removed it from the machine and, while inflating the tire, then resting upon the floor, an explosion occurred seriously injuring Forry.

Forry instituted a trespass action in the Court of Common Pleas of Dauphin County against Goodrich, Gulf Tire ³ and Keller. Forry alleged the following negligence: (1) that Goodrich manufactured this tire for resale in a defective condition dangerous to anyone using or working upon it; (2) that Gulf Tire, by having its name embossed on the tire casing, assumed any liability arising from the manufacture and defective condition of the tire; (3) that Keller, knowing or having reason to know of the tire's defective condition, sold the tire and, by using excessive force in originally mounting the tire, damaged the tire rendering it dangerous for use. Upon completion of Forry's evidence as to liability the trial court granted a compulsory nonsuit as to all three defendants. From the order refusing to remove such nonsuit, the instant appeal was taken.

Forry contends: (a) that, even without his expert witness' testimony as to the cause of the accident, the evidence was sufficient to prove the existence of a defective condition in the tire And negligence in the original mounting of the tire and that such defect Combined with the negligent tire mounting caused the tire to explode and that the trial court erred in not submitting the issues to the jury; (b) that the trial court, in excluding a hypothetical question addressed to Forry's expert witness because of the form of such question, committed error; (c) that Gulf Tire, which sold the tire to Keller, was subject to the same liability as Goodrich because its name had been placed on the tire casing; (d) that the trial court, in excluding evidence that Forry had handled the tire in accordance with the standard practice, committed error.

In passing upon the propriety of the entry of this compulsory nonsuit, we accept the evidence produced by Forry as true, we read it in the light most favorable to him and we accord to him the benefit of all reasonable inferences arising from the evidence: Auel v. White, 389 Pa. 208, 210, 132 A.2d 350 (1957).

At the outset, it might be noted that Forry claims that the accident was caused by a Combination of two factors, the defective condition of the tire And the improper handling of the tire when Keller mounted it on the wheel. Absent evidence or reasonable inferences therefrom that Both factors caused the explosion, Forry will have failed to sustain his cause of action.

In addition to the evidence previously related, certain other evidence is of importance. When Wagner observed the tire at Forry's service station, The outside of the tire appeared to be properly 'seated' on the rim but the appearance of The inside of the tire indicated that a section of the Bead of the tire was 'unseated' at a point 1/4 to 3/8 from the flange of the rim for a distance of 2 1/2 to 3 . After the tire had been removed from the mounting machine, Forry placed it upon the station floor with the Inside portion resting on the floor; without replacing the core of the valve, which he had removed while the tire was on the mounting machine, and employing an air compressor hose, ⁴ Forry began to inflate the tire. Wagner, who momentarily had turned his back, heard an explosion and saw Forry in the air. Wagner's testimony was corroborated by Forry up to the point where Forry had removed the tire from the wheel; after that Forry, due to the severity of the explosion, had no further recollection of events. Several hours after the accident, Gerald Forry, Forry's brother, with the use of a tire iron, removed the tire from the rim; when he examined the tire after the explosion, the Outside of the tire was 'unseated' while the Inside was 'seated'.

Approximately six and one-half years subsequent to the accident, the tire was delivered to one Isaac Stewart for both visual and X-ray examinations. ⁵ Stewart testified that, from a visual examination, the tire bore signs of very slight wear and no indication of road trauma; there was a dent or depression in the hard rubber sole of the Bead at a point opposite the Bead 'overlaps' and, within that area, a sharp break in the Beads. On the basis of X-ray examinations conducted by him, Stewart stated that imbedded in each Bead were sixteen wires, four laid parallel and each wound around four times; four 'overlaps'--each approximately 1 1/4 --had slipped out of their original sockets; these Overlaps had been secured by the rubber itself and were not fastened or staked together; as a result of tension failures, twelve of the Sixteen wires in the 'overlaps' area were broken; opposite that area and directly beneath the dent in the Bead, which Stewart had visually noted, there was an outward kink toward the tread in the first or inner twelve wires and four wires which were unbroken were distorted and bulged outward from the other wires.

Stewart testified that where 'overlaps' are not fastened or staked together, as in the construction of the tire in question, it was the custom and practice in the tire industry to make the 'overlaps' from 4 to 6 in length whereas the 'overlaps' on this tire were only 1 1/4 in length. Stewart's opinion was that a machanical force had been applied which was sufficient to create the type of dent or depression which he observed in the sole of the Bead opposite the 'overlaps' and this force initiated the break in the Bead wire unit at the point of the 'overlaps'.

Forry first contends that it is the function of the Bead wire unit and the 'overlaps' in a tire to strengthen the tire structure and that the 'overlaps' in this tire, Due to their insufficiency in length, slipped out of their attachments and caused a substantial reduction in the strength of the tire's Bead structure and that such a defect in the construction of this tire constituted a potential danger to persons using or working upon the tire.

Recently, in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), we adopted Section 402A, Restatement 2d, Torts, ⁶ which provides: '(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer had not bought the product from or entered into any contractual relation with the seller.' Section 402A--applicable to tires (Comment d, Section 402A)--places the burden upon the plaintiff to prove that the product was in a defective condition when it left the hands of the seller (Comment g., Section 402A), applies only where the existence of the defective condition in the product makes it unreasonably dangerous to the user (Comment i, Section 402A), imposes strict or absolute liability rather than liability based on negligence (Comment g., Section 402A) and requires no privity of contract for the imposition of liability so that, in the case at bar, Goodrich, the manufacturer, Gulf Tire, the wholesaler, and Keller, the retailer and immediate vendor, would all be considered 'sellers' (Comment f., Section 402A). Liability, if it exists, arises from Section 402A and not from the application of the doctrines of Res ipsa loquitur or Exclusive control.

Next, we must inquire whether the proof produced by Forry was of such nature as to render applicable Section 402A. Goodrich admits that it manufactured this tire for resale and that, as a new tire, it was sold to Gulf Tire for distribution. It was Forry's burden to prove that there was a defect in this tire, that this defect existed when the tire left Goodrich's hands, that the defective condition was unreasonably dangerous to the user and that there was a causal connection between this defect...