Van Winkle v. Firestone Tire & Rubber Co.

• Decision Date: 05 December 1969
• Docket Number: No. 69--64,69--64
• Citation: 253 N.E.2d 588,117 Ill.App.2d 324
• Parties: , 7 UCC Rep.Serv. 146 Lydia G. VAN WINKLE, Plaintiff-Appellee, v. FIRESTONE TIRE AND RUBBER CO., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 588

253 N.E.2d 588

117 Ill.App.2d 324, 7 UCC Rep.Serv. 146

Lydia G. VAN WINKLE, Plaintiff-Appellee, v. FIRESTONE TIRE AND RUBBER CO., Defendant-Appellant.

No. 69--64.

Appellate Court of Illinois, Third District.

Dec. 5, 1969.

James E. Kelley, William C. Davidson, of Lane & Waterman, Davenport, Iowa, for defendant-appellant.

Marshall E. Douglas, Jackson & Douglas, East Moline, for plaintiff-appellee.

ALLOY, Justice.

This is an appeal from a judgment of the Circuit Court of Rock Island County in the sum of $359.03 as against defendant Firestone Tire and Rubber Co. and in favor of plaintiff Lydia G. Van Winkle. The action was predicated on an alleged breach of warranty by defendant in selling plaintiff a retreaded tire which it is contended blew out and caused the accident. The case was heard by the court without a jury.

Plaintiff Lydia G. Van Winkle and her husband bought five retreaded tires on September 16, 1966, from a Firestone Store in Moline, Illinois. Defendant placed the tires on the rims and then put the tires on the 1960 Oldsmobile owned by the purchasers. Plaintiff's husband signed the retail installment contract for the purchase of the tires. During the following seven days, plaintiff testified that she drove the car between 50 and 100 miles, and did not, to her knowledge, drive over any unusual roads or surfaces. Plaintiff's husband also drove the car during the week, but the husband did not testify in the case.

On September 23, 1966, a week after the tires were purchased, plaintiff was driving down a hill on 41st Street in East Moline. Plaintiff's testimony was that she was driving down this hill at about a speed of 35 miles per hour and that, in her words, 'the tire blew out--I lost control--I couldn't handle the car at all'. The automobile swerved going down the hill and the left side of the automobile went up over a 12-inch concrete embankment. The vehicle then came back over the embankment and proceeded on down the hill to an intersection where it spun around facing back up the hill and finally came to a stop. In testimony of the plaintiff with respect to her speed after the tire blew out, plaintiff testified that her foot kept hitting the accelerator instead of the brake and she thus speeded up. She still felt that she was going less than 60 miles per hour down the hill and into the intersection. An investigating police officer testified that plaintif told him after the accident that her left rear tire had blown out. He observed at the accident scene that the left rear tire was flat. Plaintiff took the tire back to the Firestone Store the day following the accident, and at the trial of her action for damages, plaintiff testified that Firestone 'offered only the tire and rim'. Defendant objected to any evidence showing an offer by Firestone to replace the tire and rim. Plaintiff's damages totaled $359.03.

Plaintiff's action was based upon an implied warranty of defendant that the tire was free from defects. The complaint alleged that there were in fact defects in the construction and workmanship of the tire and that 'said defects being that the tire suddenly deflated from holes in the sidewalls'. At the trial, the only testimony for plaintiff was her own. Defendant presented two investigating police officers as its only two witnesses. Testimony of plaintiff was as to the circumstances of the accident hereinabove referred to, and plaintiff also admitted that she pleaded guilty to a speeding charge which was filed against her as a result of the accident. One of the police officers who testified estimated plaintiff's speed at the top of the hill prior to the accident at 50 to 60 miles per hour (when the officer passed plaintiff as he was going in the opposite direction).

Plaintiff offered in evidence the photograph of a tire which showed a 'big knot' on the tire. Plaintiff testified that this was a picture of one of the other of the five tires which were purchased from defendant on September 16, 1966, but not the other one which blew out. Over objection of defendant the photograph was admitted into evidence. Plaintiff was also permitted to testify, over objection, that the other tires went bad, with a knot on them like the one in the picture. Plaintiff also introduced into evidence the tire in question which plaintiff alleged blew out while she was going down the hill. Defendant moved for judgment in favor of defendant at the close of the plaintiff's evidence and at the close of all the evidence.

It is clear that there was an implied warranty of fitness of the tire for a particular purpose and for use on the automobile (1967 Illinois Revised Statutes, Ch. 26, Par. 2--315). The theory of products liability announced in the case of Suvada v. White Motor Corp., 32 Ill.2d 612, 210 N.E.2d 182, was not essential to the maintenance of the action by plaintiff in the present case since there is no question as to privity of contract, as plaintiff and her husband were direct purchasers of the tire from the defendant. Plaintiff's right to recover did not depend alone on the products liability doctrine referred to in the Suvada case.

To recover for breach of an implied warranty of fitness for a particular purpose, a plaintiff must show that he or she had made known to the seller the purpose for which the article was purchased and that the purchaser relied upon the seller's skill or judgment (Kirk v. Stineway Drug Store Co., 38 Ill.App.2d 415, 187 N.E.2d 307, 6 A.L.R.3d 1). The plaintiff must then show affirmatively that there was some defect in the article sold which rendered it unfit for that purpose and that damage resulted from such defect. In Kirk v. Stineway Drug Store Co., supra, plaintiff had purchased a new step ladder from the drug store. The third time she used the ladder it collapsed and she fell injuring herself. The court first determined that the purpose for which she purchased the article was known and then examined into the question as to whether there was proof of defects or imperfections in the ladder itself. The court stated that from an examination of the ladder which was placed in evidence there were imperfections in its construction which could be clearly seen (a failure to install a safety cleat). It is thus clear that, in this State, to recover on a theory of implied warranty of fitness for a particular purpose, a purchaser must make proof of a defect in the article. This is true even...