Hunt v. Firestone Tire & Rubber Co., 41618
| Decision Date | 23 December 1968 |
| Docket Number | No. 41618,41618 |
| Citation | 448 P.2d 1018,1968 OK 184 |
| Parties | Charles HUNT, Plaintiff in Error, v. The FIRESTONE TIRE & RUBBER CO., General Motors Corporation (Pontiac Motors Division) and Bee Line Motors Company, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Contributory negligence and assumption of risk, to be available to the defendant, must be pleaded, unless such contributory negligence and assumption of risk appear from the allegations of the plaintiff's petition, or unless the plaintiff's own evidence raises the presumption of contributory negligence or assumption of risk.
2. The proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.
Appeal from the Superior Court of Okmulgee County; Don Barnes, Judge.
Charles Hunt (plaintiff) appeals from jury verdict in favor of Firestone Tire & Rubber Co., and from directed verdicts in favor of General Motors Corporation and Bee Line Motors Company, in plaintiff's action for damages for personal injuries sustained when an alleged defective tire blew out. Affirmed.
James S. Steph, Rainey & Barksdale, Okmulgee, for plaintiff in error.
Lytle, Soule & Emery by John C. Harrington, Jr., Oklahoma City, for defendant in error, The Firestone Tire & Rubber Co.
Covington & Gibbon, Richard D. Gibbon John S. Morgan, Tulsa, for defendant in error, Bee Line Motors Co.
Rhodes, Hieronymus, Holloway & Wilson, Bert M. Jones, Tulsa, for defendant in error, General Motors Corp. (Pontiac Motor Div.)
Charles Hunt (plaintiff below) appeals from a judgment rendered on a jury verdict in favor of Firestone Tire & Rubber Co., (defendants below) in an action to recover for personal injuries suffered by plaintiff when an alleged defective tire manufactured by Firestone and placed on a new Pontiac automobile by General Motors Corporation, blew out and caused the automobile plaintiff was driving to run off the highway. Plaintiff also appeals from a further adverse judgment, denying him any recovery against the other defendants, when the trial court sustained motions for directed verdicts made by the defendant General Motors Corporation, manufacturer of the Pontiac automobile, and by the defendant Bee Line Motors Company, the automobile dealer that sold the new 1964 Pontiac automobile to the plaintiff with the alleged defective tire thereon.
The accident took place about 2:30 A.M. on February 22, 1964, 7.9 miles north of Okmulgee, Oklahoma.
Plaintiff's petition alleged the facts of his purchase of the new car from Bee Line on December 3, 1963, which had been manufactured by General Motors and which was equipped with tires manufactured by Firestone. Plaintiff alleged that at the time of purchase the right front tire had some cuts on it, and when this was called to the attention of Bee Line he was advised by Bee Line, for themselves and as agents for the other defendants, that the tire would be replaced and the cuts were not of such nature as to create any danger from the use of the tire; that at the request of Bee Line the plaintiff contacted agents of Firestone to obtain a replacement for the tire and was again advised the cuts were not such as to create any danger from the use of the tire; that plaintiff relied upon the representations of the defendants and continued to drive the car until February 23, 1964, when the tire ruptured as a result of its defective condition causing the car to leave the highway and injuring plaintiff. Plaintiff alleged the defendants were negligent, (1) in selling plaintiff a defective automobile which they knew or should have known was dangerous to drive, (2) in advising plaintiff the automobile was safe to drive in its defective condition when they knew or should have known was dangerous to drive in such condition, and (3) in failing to replace the tire immediately upon ascertaining its defective condition, and prior to its sale to plaintiff. Plaintiff then alleged his injuries and pain and loss of earnings and prayed for damages.
Firestone filed a verified answer consisting of a general denial, a specific denial that plaintiff ever contacted any of its agents or that those contacted were its agent, a plea of contributory negligence on the part of plaintiff and a denial of any negligence by Firestone, but if Firestone was negligent then such negligence was not the proximate cause of the accident and plaintiff's injuries.
The answer of Bee Line was a general denial, a specific denial of any negligence on its part, and a denial of any duty owed to plaintiff in any of the incidents set forth in the petition. The answer denied any warranty existed between Bee Line and plaintiff in that the written warranty executed at the time of the sale of the automobile specifically stated no warranty was given as to the tires. Bee Line alleged the sole and proximae cause of the accident was the failure of plaintiff to exercise good judgment in the circumstances existing just prior to the accident, and further that the co-mingling of plaintiff's own negligence in certain respects caused the accident, and that plaintiff assumed all of the risk by his operation of the vehicle with the knowledge he had.
General Motors answered with a general denial, and alleged plaintiff's injuries were caused solely and proximately by his own negligence in certain alleged respects, including a non-stop drive to Chicago, Illinois, and a non-stop return to Okmulgee, Oklahoma, without sleep, whereby plaintiff either fell asleep or became inattentive and drove off the road, and further alleging that if there was any defect in the tire, which was denied, it was patent and obvious and known to plaintiff and that he assumed the obvious risks inherent in such non-stop drive. General Motors further alleged the sole and proximate cause of the accident was plaintiff's own negligence and assumption of risk.
As stated above, the trial court directed the jury to return verdicts in favor of Bee Line and General Motors. In submitting the case to the jury, as between plaintiff and Firestone, the lower court gave instructions on the propositions of contributory negligence and assumption of risk by the plaintiff. Plaintiff preserved his exceptions to these instructions.
Plaintiff insists the lower court erred, (1) in instructing the jury on the proposition of assumption of risk, when Firestone's answer did not plead that defense, and, (2) error of the court in directing verdicts for Bee Line and General Motors. Our disposition of such contentions requires a narration of pertinent portions of the evidence.
Plaintiff testified that he bought the new 1964 General Motors Pontiac automobile, with five Firestone tires, from Bee Line Motors Company in Okmulgee, Oklahoma, on December 3, 1963, and almost immediately drove it out to have it examined by his mechanic friend (L. Smith); that they drove around and Smith noticed a bump in a tire, and upon examining the right front tire, they found a couple of scratches or cuts in the side of the tire, 'just more or less looked like where barbed wire had hung it or they damaged it unloading it off the shipping vehicle,' and a place in the tire tread where 'a piece of rubber had been chawed out;' and that Smith told him 'You got a bad tire on here' and advised plaintiff to take it back. Smith testified for plaintiff concerning discovery of the two cuts on the side of the tire and a 'scooped out place on the top,' and told plaintiff to take it back because the tire might have been faulty and would give no service and because he thought the tire would not last long. Plaintiff testified he was concerned about the tire, that there was something wrong with it, and he went right back to the dealer and showed the tire to the salesman (Waters) of that defendant and asked for a new tire, and Waters stated the tire was probably damaged in unloading the automobile and he (Waters) thought it would be safe to drive on, and that Waters 'never did say definite whether it was safe,' but said 'I think it will be okay;' that Waters said he...
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