Tralli v. Triple X Stores

• Decision Date: 13 July 1954
• Docket Number: No. 92665,92665
• Citation: 19 Conn.Supp. 293,112 A.2d 507
• Court: Connecticut Superior Court
• Parties: Anthony TRALLI v. TRIPLE X STORES, Inc., et al.

Page 507

112 A.2d 507

19 Conn.Supp. 293

Anthony TRALLI v. TRIPLE X STORES, Inc., et al.

No. 92665.

Superior Court of Connecticut, Hartford County.

July 13, 1954.

Herman Yules, Manchester, for plaintiff.

Frank E. Dully, Hartford, for defendants The Triple X Stores, Inc., et al.

Day, Berry & Howard, Hartford, for defendant Dayton Rubber Co.

ROBERTS, Judge.

The plaintiff seeks damages from the defendants for personal injuries alleged to have occurred by reason of an explosion of a tire which he was in the process of mounting.

In the original complaint the action against the defendant Dayton Rubber Company was grounded upon negligence and against the defendants The Triple X Stores, Inc., and The Sam Schwartz Company upon breach of warranty. By an amendment filed at the time of trial and statements made by plaintiff's counsel at the time of trial, the breach of warranty claim has apparently been abandoned and a claim of negligence made against all defendants. The defendants have each filed a defense of contributory negligence and the defendant Dayton Rubber Company has alleged a defense of the Statute of Limitations.

The evidence in support of the allegations of the plaintiff's complaint establishes that the tire in question was purchased by one Brozowski from the defendant The Tripe X Stores, Inc., in Manchester. The tire was taken by him on June 4, 1951, pursuant to an agreement between him and The Triple X Stores, to the garage of one Rocco Tralli in Manchester for mounting. The plaintiff, who was the brother of Rocco and employed by him, was in the process of mounting the tire when the alleged accident and injuries occurred on June 4, 1951.

Under these circumstances, even under the allegations of the original complaint, no liability to the plaintiff under the claim of breach of warranty would arise as there was no privity of contract between him and the defendants The Triple X Stores, Inc. and The Sam Schwartz Co. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 96, 3 A.2d 224; Welshausen v. Charles Parker Co., 83 Conn. 231, 233, 76 A. 271.

The tire in question was manufactured by the defendant Dayton Rubber Company. The mold and trade-mark 'Cordovan,' under which name this type of tires was sold, were owned by Automotive Associates, a corporation. Through an agreement with this latter corporation the defendant The Sam Schwartz Company ordered such tires directly from the Dayton Rubber Company and paid the Dayton Rubber Company for them. The tires were then distributed by The Sam Schwartz Company, as distributor, to The Triple X Stores as the retail outlets.

The plaintiff in his brief relies, as against the Dayton Rubber Company at least, on the doctrine expressed in the case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, and 65 C.J.S., Negligence, § 100, p. 629. In the MacPherson case there was evidence to the effect that defective wood was used in the manufacture of an automobile wheel and that the plaintiff was injured in an accident resulting therefrom. It also appears that the defect could have been discovered by reasonable inspection and that such inspection was omitted. The essence of the liability thus claimed is therefore based on negligence.

The claim of negligence on the part of the Dayton Rubber Company will therefore first be considered. Although the doctrine of res ipsa loquitur is not specifically mentioned in the plaintiff's claims of law in his brief, yet under the claims as made it may be well to point out that the court does not consider that the doctrine as such applies in this case. The conditions to have that doctrine apply have not all been met. It appears from the evidence that both the inspection and user were not at the time of the injury in the control of any of the defendants. It does not appear that the injurious occurrence must have happened irrespective of any voluntary action at the time by the plaintiff, as the injured party. Briganti v. Connecticut Co., 119 Conn. 316, 320, 175 A. 679; Richards v. Grace-New Haven Community Hospital, 137 Conn. 508, 511, 79 A.2d 353. Furthermore the force of the application of the doctrine, even if the conditions were such that it was applicable, is spent by the offering of evidence by the plaintiff as well as the defendants on the question of negligence. See Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2.

The plaintiff in his complaint, in the allegations of negligence against the Dayton Rubber Company, sets forth in substance that the defendant knew or ought to have known that the tire was in a defective and inherently dangerous condition and, particularly, 'would sell the same to members of the public who would be endangered and injured thereby although it knew or ought to have known that the wires and cables in the bead were broken, separated and loosened, and as a result of the defective condition of said bead the tire was not reasonably safe for use.' This latter allegation appears to rely on the claim that the bead was broken or 'fractured' before it left the defendant's factory and that it was put on the market in this condition by the defendant Dayton Rubber Company, which condition was due to faulty manufacture and lack of inspection. The plaintiff's statement in his brief that '[i]t is true a thorough inspection by either The Sam Schwartz Company or The Triple X Stores, Inc. of Manchester would have disclosed the tire as being defective' also appears to adopt the theory, as expressed in the allegation cited above, that the defect was other than a latent one. The plaintiff has failed to sustain his allegations of negligence in this respect against the Dayton Rubber Company. Evidence has been offered concerning the several stages of inspection as given by the company in the manufacture of a tire. Mr. Veen of The Triple X Stores inspected the tire on two occasions before turning it over to the purchaser, Brozowski. The plaintiff himself, according to his testimony, after an examination of the tire, before he started to mount it, detected no broken or fractured bead. Witnesses produced in behalf of the several parties to the action clearly establish that a fractured bead would be discernible by a slight inspection. Indeed, an examination of the tire in question with its present fractures readily proves this. Such a defect, if it existed, would most certainly have been detected. The evidence also establishes that the tire in question, after it left the defendant's factory, passed through many hands in shipping and storage until it reached the plaintiff. The evidence fails to establish that the wires and cables of the bead were broken, separated and loosened and the tire defective when it left the defendant's factory and there is no showing of a lack of inspection. Indeed, if there was a fractued bead, the plaintiff, who was familiar with the handling of tires, was guilty of contributory negligence in not discovering it before he proceeded to mount the tire.

The plaintiff also in his brief, in discussing the MacPherson case, supra, refers to the instant alleged defect as a latent one. In passing it might be observed that a reading of the MacPherson case, supra, would indicate that the defect in that case was not one which would be called latent. The question of a latent defect will now be considered. The defendant Dayton Rubber Company established by evidence the steps through which a tire goes during its manufacture. It appears that each bead is made up of four strands of four wires each, or a total of sixteen wires, encased in rubber, and the ends of the wires, where they occur, overlap one another. Evidence of reasonable inspection through the process of manufacture was also given. No direct evidence of defective manufacture was shown, or that the bead was broken, separated or loosened when it left the factory. It is not reasonably probable from the evidence concerning the manufacture of the bead, or the other evidence in the case, to infer that the wires in the beads on both sides of the tire were broken or even bent or weakened. Both of the experts produced by the plaintiff, Mr. Dorne and Mr. Beaupre, who gave as their opinion that the tire was defective causing the explosion, considered that it was a remarkable coincidence, however, that the defects consisted of two fractures, one on each side of the tire nearly opposite each other. Engineers of the defendant company conducted an experiment with a similar tire and tube, and found that at high pressure an explosion took place similar in result to the one in the instant case, producing two fractures, one of each bead of the tire, nearly opposite one another, a rent in the tube and a forceful propelling of the tire, tube and rim into the air. This was brought about in the experiment by purposely pinching the tube against the rim. In this connection it is interesting to note that Mr. Dorne, the plaintiff's expert, gave as his opinion that the tube in the present instance was trying to escape past the tire and rim and thus exploded when the pressure became great enough.

While the court is aware that it is difficult perhaps for the plaintiff to obtain direct proof of...