Senter v. BF Goodrich Company

• Decision Date: 18 December 1954
• Docket Number: 3702.,Civ. No. 3580
• Parties: Gano E. SENTER, d/b/a Denver Sales Company, Plaintiff, v. The B. F. GOODRICH COMPANY, Defendant. Arthur G. STENMAN, Plaintiff, v. The B. F. GOODRICH COMPANY, Defendant.
• Court: U.S. District Court — District of Colorado

127 F. Supp. 705

Gano E. SENTER, d/b/a Denver Sales Company, Plaintiff, v. The B. F. GOODRICH COMPANY, Defendant.

Arthur G. STENMAN, Plaintiff, v. The B. F. GOODRICH COMPANY, Defendant.

Civ. Nos. 3580, 3702.

United States District Court D. Colorado.

December 18, 1954.

COPYRIGHT MATERIAL OMITTED

James S. Henderson, Denver, Colo., for plaintiffs.

White & Steele, Denver, Colo., for defendant.

WALLACE, District Judge.

These two cases were consolidated for trial inasmuch as both actions arise out of injuries received by the plaintiffs in an automobile accident which occurred as the direct result of a blow-out of a tubeless tire, manufactured and sold by the defendant company. Mr. Senter, plaintiff in Case No. 3580, was the owner and passenger of the car involved in the accident and Mr. Stenman, plaintiff in Case No. 3702, was the driver of the car at the time of the blow-out.

Both complaints allege two separate causes of action or theories for recovery. The first numbered cause of action in each complaint is pitched in tort, alleging that the defendant company was guilty of negligence in the manufacture of the tire in question. The second numbered cause of action sounds in contract and alleges that the defendant was guilty of a breach of warranty.

The defendant, just prior to trial and again at the close of plaintiffs' case, moved that the plaintiffs be required to elect the theory on which they would each rely. The Court refused to require an election and entertained evidence relevant to both issues. The defendant in its brief submitted in support of its requested findings of fact and conclusions of law has once again requested that the plaintiffs be required to elect. After carefully reconsidering this issue the Court still believes that plaintiffs should not be compelled to elect. Although doubtless the Court has the authority to require an election prior to trial where a failure to elect would work a hardship on the defendant,¹ the defendant in the instant case was in no way placed at a disadvantage in being required to defend against both theories. The facts pertaining to the purchase of the tire in question, the tire's use and conditions immediately surrounding the blow-out were subject to the same proof under each theory. Only in a limited way was evidence introduced which was solely limited to one of the two alternate theories. Naturally, the evidence tending to establish that the defendant had given an express warranty that the tire would not blow out was not applicable to the charge of negligence. Although Federal Rule 18, 28 U.S.C.A., does not alter the state substantive law which prohibits the simultaneous urging of inconsistent claims, claims whose success is dependent upon the establishing of contradictory facts,² the flexible federal rules of procedure were designed to meet problems identical in principle with the one in issue.³ A defendant cannot compel a plaintiff to choose at his peril the theory upon which he intends to rely and thereby possibly defeat a recovery where two consistent, concurrent or cumulative theories can be urged without prejudice to the defendant's ability to defend.⁴ If an actionable wrong has taken place recovery is to be granted regardless of theory and relief must not be denied through the vehicle of a forced election.⁵

In turning to the merits of the case at bar the Court has concluded that insofar as the plaintiffs' charge of negligence there exists no evidence which justifies a finding that the defendant company in any way failed to exercise due care in the manufacture of the instant tire. Although there is little question in the Court's mind but what the tire in issue contained a latent defect inasmuch as the tire should not and would not have blown out under the then existing conditions had the tire been of the quality ordinarily achieved under the defendant's manufacturing process,⁶ there is no evidence that at the time of the construction of such tire the defendant was guilty of negligence either through acts of commission or omission.⁷ To hold the defendant company liable under the facts in evidence, apart from warranty, the defendant would have to be regarded as an insurer; and, the defendant owes no such duty.⁸

At the trial of this case all parties assumed that plaintiffs had the burden of proving the defendant's negligence. Not only did the plaintiffs fail to discharge such burden but even had the instant case been categorized as one calling into play the doctrine of res ipsa loquitur the defendant met any such shift of burden by the presentation in detail of the steps pursued at the time the tire in question was produced.⁹ The Court was favorably impressed with the defendant's expert testimony dealing with its manufacturing steps and believes that the defendant company in its manufacturing process certainly exercised that degree of care and insight required of any such company.¹⁰

However, the Court is of the opinion that apart from the theory of negligence, but upon the theory of express warranty, that plaintiff Senter, the purchaser of the instant tire, is entitled to recover for damages sustained by him as a direct result of the blow-out in question. Although the evidence on whether defendant's sales agent in Denver expressly warranted that the tire in question would not blow out, but would "slow-out", is in sharp conflict, the Court believes that defendant's agent, the General Manager of its retail store, did orally expressly warrant to plaintiff Senter that the purchase of defendant's tubeless tire would absolutely protect Senter from the hazards incident to the sudden blow-out.

The defendant company lays considerable stress on the fact that at the time of the purchase in question, that it, as a matter of advertising, national and local, did not represent that the tubeless tire in question furnished protection against blow-outs; and, the evidence submitted conclusively shows that the printed circulars and other written advertisements did not warrant against blow-outs prior to the time the tire in question was obtained from defendant's Denver agent.¹¹ However, the evidence in its entirety satisfies this Court that defendant's agent, in order to consummate the sale to plaintiff Senter went beyond the defendant's written representations and assured Mr. Senter that defendant's tubeless tires did afford protection against blow-outs. Although the testimony of Senter and defendant's agent are in irreconcilable conflict on the question of express warranty, the circumstances existing at the time of the sale make Senter's testimony, as between the two, more plausible.¹² Senter in addition to impressing the Court with his general credibility, established beyond question that the protection he was seeking at the time of the tubeless tire purchase was related to the danger incident to the sudden blow-out. He for a number of years leading up to the purchase in question had used a puncture proof tire manufactured by a competitor of defendant, a leading tire company, and was very satisfied with the service received from such tires. It is most unlikely that a man of Senter's ability and experience, a salesman himself, would be persuaded to trade brand new tires for defendant's product, unless, if as Senter testified defendant's salesman did hold out some advantage not offered by other tires then on the market. Senter testified that defendant's salesman specifically represented that a blow-out, as commonly experienced, could not occur with the tubeless tire and mentioned certain reasons in support of such promise. The sales talk included the assurance that immediately prior to a breaking down of the casing wall which normally would lead to a sudden blow-out, that a lump would form in the tubeless tire giving...