Spillers v. Montgomery Ward & Co., Inc.

• Decision Date: 29 April 1974
• Docket Number: Nos. 54029,54030,s. 54029
• Citation: 294 So.2d 803
• Parties: Donald Ray SPILLERS v. MONTGOMERY WARD & COMPANY, INC., et al.
• Court: Louisiana Supreme Court

Page 803

294 So.2d 803

Donald Ray SPILLERS v. MONTGOMERY WARD & COMPANY, INC., et al.

Nos. 54029, 54030.

Supreme Court of Louisiana.

April 29, 1974.

Rehearing Denied June 7, 1974.

Troy E. Bain, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for plaintiff-applicant.

Jesse D. McDonald, Hudson, Potts & Bernstein, Monroe, John M. Madison, Jr., Wilkinson, Carmody & Peatross, Shreveport, R. L. Davis, Jr., Theus, Grisham, Davis & Lehigh, Monroe, for defendants-respondents.

DIXON, Justice.

This is a personal injury suit arising out of the explosion of a truck tire wheel. We granted two writ applications. Plaintiff's application assigned as error the failure of the prior courts to hold defendant, Reliable Motors, Inc., responsible for the damage to plaintiff, and the reduction of plaintiff's award from $85,000.00 to $28,635.36 by the Court of Appeal; the other application for writs was made by defendant G & S Manufacturing Company, Inc. and its insurer Truck Insurance Exchange. These applicants assigned as error the finding by the Court of Appeal that they were liable for the defects and the damage, the finding by the Court of Appeal that Reliable Motors, Inc. was not responsible, and the amount of damages fixed by the Court of Appeal.

This case was tried by a jury, which returned a verdict in favor of plaintiff for $85,000.00 against G & S Manufacturing and its insurer and against Montgomery Ward. The plaintiff's demands against Reliable were rejected. The Court of Appeal affirmed the judgment, but reduced the amount awarded from $85,000.00 to $28,635.36. Spillers v. Montgomery Ward & Co., Inc., 282 So.2d 546 (La.App.1973).

Plaintiff was a twenty-nine year old married man who intended to enter the pulpwood business. He located a used truck at Reliable Motors in Ruston, which, with modifications and additions, could be adapted to his purposes. The truck salesman took him to inspect another truck which had been so adapted. Spillers agreed to buy the truck and pay for the adaptation, which was to be done by defendant, G & S Manufacturing Company, Inc., at its plant in Hope, Arkansas.

The truck sold to Spillers had one rear axle. In order to accommodate the load of pulpwood, it was necessary to add an additional rear axle. This assembly was called a 'tag axle.'

The modification of the truck by G & S Manufacturing was not insubstantial. The total cost of the truck, paid by Spillers, was $5495.00, $1490.00 of which was attributable to the modification. $390.00 of this amount was attributable to the tag axle. $575.00 was attributable to the pulpwood loader, $195.00 to a frame, and the balance to protective devices for the truck, and a tool box.

G & S Manufacturing had done business with Reliable Motors through the years, and the personnel of each was familiar wth the personnel of the other. Orders were usually placed over the telephone. Reliable Motors usually, as in this case, delivered the truck to G & S, and picked it up on completion of the modification.

The manufacturer and installation of the pulpwood loader was a substantial portion of the business of G & S. G & S also manufactured and sold a machine designed to clean chicken houses. The pulpwood loader and the chicken house cleaner constituted almost the entire business of this twenty-man manufacturing concern. Reliable Motors specified that G & S should also furnish the wheels necessary to complete the tag axle. Spillers was to purchase the tires for the wheels after the truck was delivered to him.

Tag axles can be purchased new; the practice at G & S was to fabricate their own from used parts obtained at a local junk yard. The price of a new tag axle would have been more than twice the amount charged by G & S. There was no discussion between Spillers and any person about whether the tag axle would be new or used. There is no contention that Spillers thought he would get new equipment for the tag axle, or that he wouold have specified a new one if it had been discussed.

G & S Manufacturing purchased rear axle housings which were taken from junked trucks at a junk yard in Hope. When thus purchased, the rear axle housing was usually equipped with wheels and rims.

There is some conflict in the evidence about whether the axle in this case was purchased immediately before it was installed on the Spillers truck, or whether it was taken from an old truck owned by G & S which G & S had used in prior years in a pulpwood venture. The evidence preponderates that the axle and wheels installed on Spillers' truck were already in possession of G & S when the order was received to equip Spillers' truck for pulpwood hauling. Even so, the evidence indicates that the tag axle had probably been purchased by G & S years before from a nearby junk yard, and installed on its own truck.

When the axle had been attached to Spillers' truck the workman at G & S brushed the rim and wheel assembly with a wire brush and applied black paint. The wheels and rims were placed in the tool box when the truck was delivered to Reliable Motors and Spillers.

Reliable Motors made no inspection of the wheels and rims, other than to note that they were in the tool box. Spillers took delivery of his truck and took it to the local tire shop operated by defendant, Montgomery Ward & Company, Inc., where Spillers planned to buy tires and have them mounted on the wheels and have the wheels mounted on his vehicle.

It was during this process that one of the wheels exploded injuring the plaintiff, on April 23, 1970. Spillers arranged to purchase four tires and tubes and have them mounted; two on each end of the tag axle. He left the vehicle at Montgomery Ward and returned shortly before the completion of the operation. Three tires had been mounted on the truck. The fourth tire had been mounted on the wheel, and a Montgomery Ward employee was standing with the tire, waiting for assistance to mount the wheel on the axle when the assembly exploded, injuring the plaintiff.

The wheel involved was called a splitrim wheel. There are two pieces. The larger piece contains a rim attached to a plate with five small holes and one large hole, which slips over the axle and is bolted to the drum. The smaller piece is a circular band of heavy metal, forming a portion of the rim. It is shaped and sized so that it can be forced over a flange on the larger portion. It is itself flanged so that it holds the tire on the rim.

The evidence indicates that this is a common type of truck rim, and that this particular rim bore a manufacturer's date, 9/1/54, stamped on it. If there are other types of truck rim of this size (the tires purchased were 900 20) the testimony does not indicate it. The testimony of most of the witnesses who worked in the tire shop showed that all had heard of truck wheels exploding.

The wheel and rim are obviously not new. They are both pitted, as from rust through the years. As indicated, G & S employees had painted the wheel and the rim with black paint. One of the Montgomery Ward employees who participated in mounting the wheels testified that, as the wheel and rim appeared in court, it would not be safe to mount a tire on them.

Those who mounted the tires in Montgomery Ward's shop used safety chains as a precaution against explosions. Their procedure was to place the tire, with tube and flap in place, over the larger part of the wheel. Then the rim, which has a small notch on its inside perimeter to assist in mounting, is struck with a mallet and forced over the flange of the larger part of the wheel. At this stage, two chains are placed around the wheel, rim and tire to prevent their separation in case of malfunction. The tire mounter then inflated the tire until it contained eighty-five pounds of air pressure.

The safety chains were then removed and the tire was rolled about twenty feet. The explosion occurred while the tire was perfectly still.

The force of the explosion hurled the larger part of the wheel about one hundred feet. The smaller rim struck Spillers with such force that he was knocked to the ground. His left tibia and fibula were shattered. The force of the blow was such that a part of Mr. Spillers' boot was driven into the wound on his leg.

The evidence is uncontradicted that the tire and rim involved in this explosion had suffered from rust and scale, which had the effect of reducing the size of the flange on the large part of the wheel and increasing the diameter of the flange surface on the smaller part of the wheel. It is not argued that the wheel assembly was safe.

The employees of G & S checked the wheels, but checked them for cracks and broken places. There was no inspection made concerning the size of the flange of the wheel and the locking rim. G & S simply argues that, having used the rim on its own vehicle, it was believed that the rim was safe.

The fact that G & S did not actually manufacture the wheel and the rim is of no consequence. G & S was a manufacturer. See Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Penn v. Inferno Manufacturing Corp., 199 So.2d 210 (La.App.1967). It did make the pulpwood loader and it did all the things necessary to adapt Spillers' truck for hauling pulpwood. It did supply a tag axle, and it was not required to use a sixteen year did rim on the wheel. There is obvious danger in a defective wheel, particularly when used under such heavy loads as those common on pulpwood trucks and when the tires are inflated on pulpwood trucks, loads which require the inflation of the tire to eighty-five pounds. A manufacturer is presumed to know the vide of the thing he constructs. George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432 (1905); Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952).

A manufacturer is no less a manufacturer because his product is composed in part of units manufacturer by another. Radalec, Inc. v. Automatic Firing Corp., supra. The argument made by G & S would be more...