Odum v. Gulf Tire and Supply Company, Civ. A. No. 493.

• Decision Date: 14 July 1961
• Docket Number: Civ. A. No. 493.
• Citation: 196 F. Supp. 35
• Parties: Mack ODUM, Plaintiff, v. GULF TIRE AND SUPPLY COMPANY, a Delaware Corporation, authorized to do business in the State of Florida, and Gulf Oil Corporation, a Pennsylvania Corporation, authorized to do business in the State of Florida, Defendants.
• Court: U.S. District Court — Northern District of Florida

196 F. Supp. 35

Mack ODUM, Plaintiff, v. GULF TIRE AND SUPPLY COMPANY, a Delaware Corporation, authorized to do business in the State of Florida, and Gulf Oil Corporation, a Pennsylvania Corporation, authorized to do business in the State of Florida, Defendants.

Civ. A. No. 493.

United States District Court N. D. Florida, Marianna Division.

July 14, 1961.

Amos Hudson, William J. Mongoven, Chipley, Fla., for plaintiff.

Isler, Welch & Jones, Panama City, Fla., for defendants.

CARSWELL, Chief Judge.

Plaintiff brought action against defendants to recover for injuries allegedly sustained when a tire which he was mounting exploded.

The complaint alleges that defendant Gulf Tire and Supply Company (hereafter called "Gulf Tire") negligently manufactured or caused to be manufactured the tire in question. The complaint alleges that Gulf Oil Corporation upon receipt of the defectively manufactured tire from Gulf Tire "negligently and carelessly delivered the tire to plaintiff's employer". The complaint further alleges that both defendants knew, or should have known, by the exercise of ordinary care that the tire was defective and likely to explode.

The answer denies that Gulf Tire manufactured the tire in question, and pleads that the tire was manufactured by the B. F. Goodrich Company pursuant to a contract between them.

In addition, plaintiff alleges that specific acts of defendants' negligence consist of the failure to wrap or seal the tire in any container when the tire was delivered to plaintiff's employer; and that both defendants had a duty to inspect the tire to insure that the tire was not defective; and that it was in a reasonably safe condition to mount and use for the purpose for which it was manufactured.

Defendants admit that they did not inspect the tire for defects, but deny that they had any duty to do so.

Plaintiff argues that because the name Gulf Tire and Supply Company was placed upon the tire, that was indication that Gulf Tire was either the manufacturer or had the duty to inspect.

Since it is clear that plaintiff was not a purchaser of the tire, he is not entitled to any warranties to which a purchaser may have been entitled. There is no contractual relationship, hence no privity of contract. Carter v. Hector Supply Co., Fla.1961, 128 So.2d 390.

The only theory upon which plaintiff may proceed therefore is upon the theory of negligence. Counsel for plaintiff ably argues that there is an allegation that defendants had a duty to inspect, and breached that duty by failing to inspect. This, they contend, is sufficient to raise a question of fact and therefore can withstand the test of a summary judgment.

This Court cannot agree. Whether a wholesaler or a retailer has the duty to inspect goods which it passes on to the consumer is a question of law. If there is no duty to inspect, plaintiff has no cause of action against these defendants.

The law is fairly well settled with respect to the liability of manufacturers and retailers to a purchaser of an inherently dangerous article. Walker v. National Gun Traders, Inc., Fla.App.1960, 116 So.2d 792; Tampa Drug Co. v. Waits, Fla.1958, 103 So.2d 603. These cases hold that the middleman had a duty to inspect. This duty was for the benefit of purchasers as well as other third parties. The requirement of privity has been eliminated in cases where the commodity is inherently dangerous. The doctrine has not been...