Hewitt v. General Tire & Rubber Co., 8038

• Citation: 3 Utah 2d 354,284 P.2d 471
• Decision Date: 24 May 1955
• Docket Number: No. 8038,8038
• Parties: d 354 Jack Aldon HEWITT, Plaintiff and Appellant, v. The GENERAL TIRE and RUBBER COMPANY, a corporation of Ohio, Defendant and Respondent.
• Court: Supreme Court of Utah

Page 471

284 P.2d 471

3 Utah 2d 354

Jack Aldon HEWITT, Plaintiff and Appellant, v. The GENERAL TIRE and RUBBER COMPANY, a corporation of Ohio,

Defendant and Respondent.

No. 8038.

Supreme Court of Utah.

May 24, 1955.

Woodrow D. White, Salt Lake City, for appellant.

Stewart, Cannon & Hanson, Salt Lake City, for respondent.

McDONOUGH, Chief Justice.

Plaintiff, who operates a service station, suffered injury to his hand when a tire, manufactured by defendant, exploded as he was mounting it on a truck wheel. On the trial of the case, the jury returned a verdict for the plaintiff in the amount of $14,889; whereupon the court ruled upon a motion for a directed verdict, which it had previously taken under advisement, and set aside the verdict and judgment and gave judgment no cause of action in favor of the defendant.

The tire which exploded had been in storage for some time in the warehouse of the Granite Furniture Company, for whom plaintiff was mounting the tire, but it was concededly a new tire. Plaintiff made a cursory examination of the tire while cleaning it of cobwebs and dirt, but did not notice any defect or scuffing on the exterior of the tire. He inflated the tire and tested the pressure with the tire gauge which registered between 30 and 34 pounds. He connected the air hose to the valve stem a second time, as he intended to inflate the tire to 40 pounds, and within a 'matter of split seconds' the explosion occurred. It is plaintiff's theory that the explosion was the result of a defective beading--that is, that the materials or the workmanship in that part of the tire which hugs the rim and prevents the inner tube from becoming exposed were dangerously irregular and that the defect could have been discovered upon reasonable inspection.

It is well settled that mere proof of an injury to plaintiff will not justify a verdict or judgment imposing liability upon the defendant and if the evidence does not show any negligence on the part of the defendant, there can be no recovery, regardless of the fact that plaintiff was not negligent. Quinn v. Utah Gas & Coke Co., 42 Utah 113, 129 P. 362, 43 L.R.A.,N.S., 328; Rogers v. Rio Grande Western Railroad Co., 32 Utah 367, 90 P. 1075, 125 Am.St.Rep. 876. The cases following MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 have established a duty owed by a manufacturer of an instrumentality, which may become dangerous if improperly made, to any member of the public using it for the purpose and in the manner for which it was made. Northern v. General Motors Corporation, 2 Utah 2d 9, 268 P.2d 981; Hooper v. General Motors Corporation, Utah, 260 P.2d 549. However, plaintiff must prove a violation of that duty in order to recover; and the lower court held by its judgment on a directed verdict that he did not produce evidence to show such violation. On appeal from a directed verdict, it is fundamental that we review the evidence in the light most favorable to the losing party. Finlayson v. Brady, Utah, 240 P.2d 491.

In Hooper v. General Motors Corporation, supra , and followed in Northern v. General Motors Corporation, supra, the proof necessary to recovery in a case similar to this is stated to be:

'Thus, to impose liability on an assembler of an automobile certain necessary elements must be made out. Plaintiff is required to show: (1) A defective wheel at the time of automobile assembly; (2) Such defect being discoverable by reasonable inspection; (3) Injury caused by failure of the wheel due to its defective condition.'

The direct evidence which can be produced on either side in a case such as this is limited by the very nature of the action. Generally, plaintiff can only testify to the condition of the item after the accident and defendant has little opportunity to prove contributory negligence against the plaintiff. For this reason, the circumstantial evidence giving rise to certain inferences becomes of great importance. In the Hooper case, supra, it is said:

'It may be that the mere separation of the spider from the rim, standing as an isolated fact, would be an insufficient factual basis for an interference (sic) that the wheel was defective at the time it was assembled on the truck. However, when viewed in relation to other evidentiary facts--namely, the worn shiny spots on the undersurface of the wheel rim; the expert testimony to the effect that such shininess indicated smoothness and wear over a considerable length of time, * * *; the age of the truck; the fact that it had gone but 6700 miles; the fact that it had no record of prior damage; the description of the mishap by plaintiff * * *; then the fact of rimspider separation may have provided the requisite force to tip the scales in favor of plaintiff. Certainly, reasonable men from the cumulative factual total could infer, and which the consideration of rim-spider separation may have inferred, that the wheel was defective at the time of assembly.'

The question which we confront in the present case is whether there is evidence which would indicate that some flaw in the tire, resulting from some act or omission during the manufacture, existed prior to the explosion and was the proximate cause of it, and which would be discoverable upon reasonable inspection.

It has been suggested in decisions from numerous jurisdictions, and sometimes actually enforced, that a fact desired to be used circumstantially must itself be established by direct evidence and that an inference cannot be based upon an inference. ¹ Professor Wigmore, 1 Wigmore on Evidence, Sec. 41, criticises this view:

'There is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant's gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased. Or, the defendant is shown to have been sharpening a knife; from this we argue that he had a design to use it upon the deceased; and from this we argue that the fatal stab was the result of this design. In these and innumerable daily instances we build up inference upon inference, and yet no Court (until in very modern times) ever thought of forbidding it. All departments of reasoning, all scientific work, every day's life and every day's trials, proceed upon such data. The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon.'

'The fallacy has been frequently repudiated in judicial opinions. * * *' ²

Professor Wigmore cites the case of New York Life Ins. Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948, as demonstrating the line which may be drawn to assuage the distrust of inference upon inference and distinguish between mere conjecture and valid inference:

'The principle which is applied by the average man in his own private affairs usually is that no matter how many inferences are piled on each other, it is only necessary that each successive inference should be more probable than any other which might be drawn under all the circumstances. The Courts, however, have always insisted that the life, liberty and property of a citizen should not be taken away on possibilities, conjectures, or even, generally speaking, a bare probability. In criminal cases, they demand that when a conviction is to be based on a chain of inferences, each and every link in that chain must exclude every other reasonable hypothesis. In civil cases, involving only property rights, the rule is not so strict, and it is sufficient, if the ultimate fact is to be determined by an inference from facts which are established by direct evidence, that it be more probable than any other inference which could be drawn from the facts thus proven. But when an inference of the probability of the ultimate fact must be drawn from facts whose existence is itself based only on an inference or a chain of inferences, it will be found that the Courts have, with very few exceptions, held in substance, although usually not in terms, that all prior links in the chain of inferences must be shown with the same certainty as is required in criminal cases, in order to support a final inference of the probability of the ultimate fact in issue * * * the prior inferences must be established to the exclusion of any other reasonable theory rather than merely by a probability, in order that the last inference of the probability of the ultimate fact may be based thereon. This rule is not based on an application of the exact rules of logic, but upon the pragmatic principle that a certain quantum of proof is arbitrarily required when the courts are asked to take away life, liberty or property.'

Applying this test to the instant case, we begin with the fact that the tire burst causing the injury. As was above stated, this alone will not raise an inference of defendant's negligence, for ruling out, as this case permits, accident without fault or an act of God, there remain three equally valid inferences, viz., plaintiff was negligent, the accident was caused because of the interference of a third party, or defendant was negligent.

Upon plaintiff's evidence, then, could the jury reasonably conclude that he, himself, was not negligent?

X-rays of the tire were introduced showing that all of the strands of wire, or nearly all of them, in the bead were broken, but they revealed no clue as to the cause of the break. In an experiment conducted by defendant, a tire of this type withstood a pressure of 155 pounds before the bead wires broke causing an explosion. Together with plaintiff's direct testimony as to careful handling of the tire and inflation to less than 40 pounds, the jury had before them the evidence of his long experience in work of this type, from which they might conclude that he would not...