Hansen v. Firestone Tire and Rubber Company, 13816.

Decision Date02 March 1960
Docket NumberNo. 13816.,13816.
Citation276 F.2d 254
PartiesSylvester HANSEN, Appellant, v. FIRESTONE TIRE AND RUBBER COMPANY, Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

William J. Weinstein, Detroit, Mich. (Charfoos, Gussin, Weinstein & Kroll, Detroit, Mich., on the brief), for appellant.

Rockwell T. Gust, Detroit, Mich. (Butzel, Eaman, Long, Gust & Kennedy, Detroit, Mich., Henry S. Brainard, Akron, Ohio, of counsel), for appellee.

Before McALLISTER, Chief Judge, and MARTIN and CECIL, Circuit Judges.

MARTIN, Circuit Judge.

In this action for damages involving personal injuries and property damage, the jury returned a verdict for plaintiff in the amount of $8,000. Some six months later, the United States District Court entered judgment for the defendant, non obstante veredicto. On this appeal, the plaintiff urges that the judgment of the trial court be set aside and that a judgment in his favor be entered on the verdict of the jury.

The action of the plaintiff was based upon the alleged negligence of employees of the defendant company in mounting tires on his automobile and, further, upon the alleged breach of express and implied warranties in relation to the tires. At the close of defendant's evidence, the plaintiff elected to rely entirely on the breach of warranty counts of his complaint and abandoned the negligence count.

The district court held that the plaintiff had alleged breach of warranty and negligence; that he had attempted to establish his case by proof of over-lubrication and under-inflation of the tires by the defendant's employees, these acts constituting alleged negligence, and that plaintiff-appellant had then dropped his negligence count. The court reasoned that, in this situation, the only breach of warranty was that of the negligent actions of defendant's employees; and that, inasmuch as no negligence was charged, proof of negligent acts could not support the claim of breach of warranty after the negligence count was abandoned. On these considerations, judgment for defendant non obstante veredicto was entered by the United States District Judge.

Where the trial court has granted a directed verdict under Rule 50(b), Federal Rules of Civil Procedure, 28 U. S.C.A., the appellate court may, in an appropriate case where there is sufficient substantial evidence to support a jury verdict to the contrary, order the cause to be remanded with instructions to reinstate the verdict of the jury.

Applying these principles, we find that on July 29, 1953, plaintiff-appellant bought from a Firestone retail outlet in Detroit four new tires manufactured by Firestone Tire and Rubber Company. He paid $303.84 for the four tires, which were "Firestone Supremes". These tubeless tires (then new) contained no innertubes, but instead utilized the inside of each rim as part of the air chamber. Within the tire was a rubber "safety diaphram" described by defendant-appellee in an advertising brochure given to appellant by a Firestone salesman as an "emergency tire that holds large volume of air in case of blowout", with a "safety valve" in the diaphram that "closes instantly in case of a blowout."

The rims ("safety-hump" type) on appellant's Chrysler car had been neither manufactured, nor used previously, for tubeless tires. The brochure given to appellant by Firestone proclaimed that the new tires had been made to "fit present rims" and to "fit any standard rim"; and that they would remain "airtight". In mounting the tires on the Chrysler, an "airtight valve" with a "rubber seal" was inserted in each rim by Firestone employees, in compliance with terms of the sales contract. This "airtight valve" was a valve stem into which air could be inserted and corresponded to the air-valve stem on an ordinary innertube. The brochure advertised that an "airtight seal" was formed where the tires were seated against the rim flanges on each side of the rim.

According to his testimony, the appellant, in buying the four tires, relied upon the claims made in the advertisement. The brochure characterized Firestone Supreme tires as "safe enough to control one or two tons * * * at speeds up to 80 miles an hour * * * safe enough to cling to the road on dangerous curves"; as having a lining that "holds air longer than ordinary tubes" and as having "greater road stability at any speed." It was stated further that Supreme tires hug the highway and that they provide "greater corner power, more control, more safety."

It appears that the employees of appellee experienced some difficulty in mounting and inflating the tires and in getting the bead of the tire to rest flush against the rim flange. A vegetable oil compound was brushed on the tires many times, so that they could be forced over the rims. During the week following purchase and installation of the tires, appellant Hansen noticed some vibration in his steering wheel; and, when an automobile dealer was unable to balance the new tires, Hansen returned to the Firestone store. There, it was found that the diaphram in the left front tire was "broken, lumped together and balled up." The employees of Firestone replaced this diaphram with a new one and, with some difficulty, again mounted and inflated the tire.

Twelve days after the replacement of the diaphram, on the morning of August 18, 1953, the appellant left Detroit to drive his car to South Dakota for a vacation trip. As he drove around a sharp curve, turning off the highway to go into Jackson, Michigan, he said that he felt "the back of the car fall away on the right side" and that it "sort of moved to the right", as if it had developed a blowout or flat tire.

Hansen testified: "I heard something strike pavement and there was a — it went down and then, stopped or jerked, as though you hit something. * * * it felt as though you were riding on the rim, or bouncing on the rim. * * * The car at that time, of course, moved even farther to the left, and as I tried to straighten it out to the right again, to get more or less back on the curve, so to speak, at about the same instant, * * * the right front wheel fell away * * *." He said that the car "dropped" and felt as if "the right springs, or the tire blew out, or something of that nature * * *." Appellant added that "it felt as though it dropped down and caught, and that's when the car rolled." He did not know how many times the car rolled, but he does remember his falling against the door and sliding in the seat as he attempted to grab it as the car went over: then, he remembers nothing until he regained consciousness in the hospital.

When examined after the accident, the two tires on the right side of the car were found not to be in contact with the outside walls of the rims; they were deflated, with the vegetable compound running out of the tires where they had pulled away from the rims. The tires themselves were not broken, torn, or ripped open.

Originally, at common law, an action grounded on breach of warranty sounded in tort, as a species of fraud or deceit, rather than in contract. Now, in enforcement of the sales contract itself, a buyer may recover for the damages proximately caused by the seller's breach of warranty relating to the goods. The legal relationship between the parties arises from their contract and is distinguishable from tort obligations and remedies.

In its Uniform Sales Act definition of an express warranty, Michigan thus adheres to the common law: "Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the...

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