Link v. Sun Oil Co., 1--872A46
| Decision Date | 05 June 1974 |
| Docket Number | No. 1--872A46,1--872A46 |
| Parties | James D. LINK, Appellant (Plaintiff Below), v. SUN OIL COMPANY, a corporation, et al., Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
James P. Buchanan, Lebanon, Warren Buchanan, Rockville, Williams & Williams, Covington, for appellant.
James L. Crawford, Cox, Zwerner, Gambill & Sullivan, Terre Haute, Richard D. Wagner, Krieg, DeVault, Alexander & Capehart, Indianapolis, John B. McFaddin, Rockville, Wallace, Wallace, Campbell & Bunch, Covington, for appellees.
Plaintiff-appellant, James D. Link, sought damages from defendant-appellees for personal injuries sustained in the explosion of the inner tube of a truck wheel assembly. From judgment on a jury verdict for defendants, Link appeals.
Link presents two alleged errors for review:
(1) Whether the trial court committed reversible error in refusing Link's tendered instruction No. 6.
(2) Whether the jury verdict in favor of defendant-appellee Phillips & Mull on the issue of strict liability is contrary to the evidence and contrary to law.
The pertinent facts of this case are as follows:
On April 16, 1967, plaintiff-appellant Link was employed by his brother-in-law, Charles Sentman, as a logger. On that day, while Sentman and Link were returning to Waveland, Indiana, from Brazil in Sentman's truck, a 1962 G.M.C. flatbed, they discovered that one of the tires on the rear axle had gone flat. Link, Sentman and Ernest Turner removed the tire, placed it in Sentman's pick-up truck, and drove to Phillips & Mull DX Station in Rockville to have the tire repaired. Link, testifying in his own behalf, and Sentman, testifying for the defense, stated that an unidentified employee of Phillips & Mull repaired the tire by installing a new tube. Contradictory testimony was given by Phillips & Mull's employees Charles Richardson and Benny Branson when they testified that they were both employed by Phillips & Mull on April 16, 1967, and that neither had repaired a truck tire on that day. Richardson further testified that when asked to repair the tire, he told Sentman that Phillips & Mull did not repair truck tires at all. Phillips testified that the Phillips & Mull Station had at one time carried truck tires and tubes, but had not done so since 1965. Phillips further stated that no truck tires or tubes were stored in the station and all employees had been instructed not to fix truck tires.
After the tire was repaired, Link, Sentman, and Turner returned to the truck and attempted to mount the wheel. When this attempted met resistance, Link obtained a six pound sledge hammer to facilitate the task. He struck the wheel rim twice, and on the second blow the tire exploded. Link sustained severe facial cuts and the loss of vision in one eye. Link testified that the wheel assembly was partially mounted when he used the sledge hammer but Sentman stated that the wheel assembly was laying on the ground and Link was standing on it when he struck it and it exploded.
The explosion was caused by a bent rim on the truck wheel assembly. Link contends that the rim was in a bent condition when he took the flat tire to the Phillips & Mull Station for repair. He further asserts that Phillips & Mull was aware of the condition of the rim when it repaired the tire and that the failure of Phillips & Mull to warn of the danger of explosion inherent in an inflated truck wheel assembly containing a defective rim holds them strictly liable for his injuries. To support this allegation Link presented evidence including written warnings given distributors and dealers by Firestone concerning the danger of explosion from inflating a truck tire assembly with bent or defective parts.
The defendants argued at trial that the rim was distorted by the force of the blows from the sledge hammer used by Link to mount the tire. Expert witnesses for the defendants testified that the rim, if struck with sufficient force, would bend thereby causing the tube to explode. The expert witnesses agreed that a sound blow from a sledge hammer could cause a previously faultless rim to bend.
Initially Link contends that the refusal of the trial court to give plaintiff's tendered instruction No. 6 was error. This instruction read:
'A product, although faultlessly made, may nevertheless be deemed 'defective' if it is unreasonably dangerous to place the product in the hands of the user without a suitable warning.
'A manufacturer, distributor, as well as a dealer must give adequate warning to the ultimate user of the product of any dangerous propensity which it knows or should have known would result in the type of accident which occurred.'
Link submits that in the absence of this instruction the jury was not otherwise instructed that the defendants had a duty to warn him about the dangers of explosion inherent in an inflated truck wheel assembly containing bent or distorted parts.
However, the trial court gave plaintiff's tendered instruction No. 7, which read:
This court has consistently held that refusal to give a tendered instruction is not error if the propositions therein stated are amply covered by other instructions actually given, even if the refused instructions appears more appropriate than the instructions given. Richmond Gas Corp. v. Reeves (1973), Ind.App., 302 N.E.2d 795; Southern Indiana Gas & Electric Co. v. Riley (1973), Ind., 299 N.E.2d 173; Dossett v. State (1974), Ind.App.,307 N.E.2d 286.
In our opinion, instruction No. 7 substantially covered the propositions propounded in plaintiff's tendered instruction No. 6 and no error is demonstrated under this issue.
Link next contends that defendant-appellee Phillips & Mull is strictly liable and that therefore the jury verdict for this defendant is contrary to both the evidence and the law.
Before addressing Link's arguments on this issue we first observe that Link is appealing from a negative judgment. When confronted with such an appeal our courts have consistently held that an allegation by one saddled with the burden of proof at trial that the judgment rendered against him is contrary to the evidence or not supported by sufficient evidence raises no issue for review. A negative judgment may only be attacked as being contrary to law. Dyer Construction Co., Inc. v. Ellas Construction Co. (1972), Ind.App., 287 N.E.2d 262; Goff v. Graham (1974), Ind.App., 306 N.E.2d 578; Senst v. Bradley (1971), Ind.App., 275 N.E.2d 573.
In determining whether a negative judgment is contrary to law, this court, as an appellate tribunal, neither weighs the evidence nor resolves questions of credibility of witnesses, but considers only the evidence...
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