Zacher v. Budd Co.

• Decision Date: 08 December 1986
• Docket Number: No. 14483,14483
• Citation: 396 N.W.2d 122
• Parties: Prod.Liab.Rep. (CCH) P 11,188 James H. ZACHER and Judy Ann Zacher, Plaintiffs and Appellants, v. The BUDD COMPANY, Yellowstone Molasses Service, Incorporated, and Dixon Brothers, Incorporated, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 122

396 N.W.2d 122

Prod.Liab.Rep. (CCH) P 11,188

James H. ZACHER and Judy Ann Zacher, Plaintiffs and Appellants, v. The BUDD COMPANY, Yellowstone Molasses Service,

Incorporated, and Dixon Brothers, Incorporated,

Defendants and Appellees.

No. 14483.

Supreme Court of South Dakota.

Argued Nov. 28, 1984.

Decided Oct. 29, 1986.

Rehearing Denied Dec. 8, 1986.

Franklin J. Wallahan of Wallahan Law Offices, Rapid City, for plaintiffs and appellants.

Thomas E. Simmons of Bangs, Mc Cullen, Butler, Foye & Simmons, Rapid City, for defendant and appellee The Budd Co.

Edward C. Carpenter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for defendant and appellee Yellowstone Molasses Service, Inc.

Gary D. Jensen of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendant and appellee Dixon Brothers, Inc.

SABERS, Justice (on reassignment).

This appeal arises from the final judgment entered upon the jury's verdict, the trial court's denial of plaintiff's motion for new trial, and orders awarding costs to defendants. We reverse and remand.

James Zacher (Zacher), an employee of the Windmill Truck Stop in Rapid City, South Dakota (Windmill), was injured on August 2, 1978, when a multi-piece truck wheel exploded during remounting. Zacher filed an action for damages based on the three substantive theories of product liability: strict liability, breach of implied warranty, and negligence. All three theories were asserted against each of three defendants: The Budd Company (Budd), manufacturer of the wheel; Yellowstone Molasses Service, Inc. (Yellowstone), owner and lessor of the wheel and the trailer to which it was attached at the time of the accident; and Dixon Brothers, Inc. (Dixon), lessee of the wheel and trailer at the time of the explosion. Zacher's wife also sought damages in this action.

Statement of Facts

The multi-piece truck wheel (wheel) which exploded consisted of a disc and rim assembly and a side ring and lock ring assembly. The disc and rim assembly is commonly thought of as the wheel. The side ring and lock ring are affixed to each other by two rivets. The rim was designed and manufactured by Firestone Tire & Rubber Company (Firestone), and the disc portion was designed and manufactured by Budd. In 1951, Budd permanently riveted these parts together and thereby constructed the disc and rim assembly which was part of this particular wheel. The side ring and lock ring assembly, which made up the third component of the multi-piece wheel, was manufactured by Firestone sometime before 1946.

Single-piece rims are used when tubeless tires are used. The record discloses that tubeless tires were not feasible on passenger cars until the early 1950's. Following this, trucking operations became interested in tubeless tires for trucks. ¹ Single-piece tire rims and tubeless tires for trucks were developed in 1953 and first produced in 1954.

The evidence showed that the side ring and lock ring assembly did not match the disc and rim assembly manufactured by Budd. There was no evidence, however, to show that Budd incorrectly combined its disc and rim assembly with the side ring and lock ring assembly on this particular wheel. Indeed, the only evidence presented showed that they correctly assembled the wheel.

At some time, the disc and rim assembly involved in this accident, and manufactured by Budd, was mismatched with a side ring and lock ring assembly. Firestone designed and manufactured this particular side ring and lock ring assembly to fit an older model rim. The two components did not fit together properly: the ring assembly tongue could not be completely seated into the disc and rim assembly gutter, the combination of which increased the possibility of an explosion. Not only were the components mismatched, but these mismatched components themselves were out of round. The danger of explosion exists when the wheel unit is combined with a tire. As the tire (or tube) is inflated, the tire-wheel assembly becomes a "pressure vessel" with substantial stored energy wanting to escape. All tire-wheel units, whether initially single- or multi-piece wheels, pose some danger of explosive disassembly. However, the danger increases in a multi-piece wheel when its components are mismatched.

This wheel had also been physically altered from the condition in which it left Budd's hands. As manufactured and distributed, the valve stem slot did not extend to the edge of the disc and rim assembly. Someone using a chisel or torch had lengthened the slot on this Budd assembly to extend it to the edge of the wheel.

On August 2, 1978, this wheel was on a trailer owned by Yellowstone, a trucking company which owned fourteen over-the-road tractors and approximately thirty trailers at that time. Yellowstone's primary contracts were seasonal and during the off-season it leased its equipment to other trucking companies on short-term leases of less than thirty days. Yellowstone leased the trailer on which this wheel was mounted to Dixon on August 2, 1978. A Yellowstone driver, on Yellowstone's payroll, drove the vehicle for Dixon. The lease provided that the equipment was in "first-class condition" and would be so maintained by Yellowstone during the term of the lease. Before the lease was signed, a Dixon employee inspected the trailer and found a flat tire on an inside dual. Two Yellowstone drivers drove the vehicle to the Windmill, the shop which serviced tires on Yellowstone trucks when they were in the area. Windmill held itself out to the public as a competent and qualified truck tire repair service.

a. Trial Testimony

Zacher was experienced in repairing flat tires and in the disassembly and reassembly of large truck wheels. From the time he began work as a service station attendant at the Windmill, some nine to ten months earlier, Zacher ordinarily repaired approximately five flat truck tires per day. He had also worked with multi-piece wheels at two other jobs prior to his employment with Windmill. The Windmill was not a distributor of new or used truck wheels or components. There were no catalogs, matching charts, or other literature concerning truck wheels available to Zacher at the Windmill. From time to time, defendant Budd issued cautionary literature but distributed it only to its own distributors and not to truck stops or service stations. Neither the general manager of the Windmill, Darrell Lich, nor Zacher, had ever seen that type of literature before the accident or prior to their pretrial depositions. The only document which Zacher had ever seen before the accident was a poster that hung on the wall at the Windmill which merely reminded workers to be careful with multi-piece wheels.

A "safety cage" was provided for Windmill employees while they worked on truck wheels with inflated tires. Zacher always used the safety cage. As an added precaution, before removing such a wheel from the safety cage after inflation of the tire, he rotated it several times on rollers at the bottom of the cage and visually examined the entire circumference of the wheel to make sure the side ring and lock ring were properly seated on the rim.

LeRoy Iverson, Yellowstone's general manager and acting safety engineer, testified that about one year before the August 1978 accident, Yellowstone had leased the subject trailer to Consolidated of Spokane, Washington. During that lease, about eight new tires were installed on the trailer. It was his belief that the old multi-piece wheel involved in the accident was substituted onto the trailer when those eight tires were installed in Washington. He stated that the wheel and eight or ten others just like it, may also have been placed on the trailer by either Emil Rennich, an independent tire repairman whose services were customarily used by Yellowstone, or by one of Yellowstone's own shop employees. He conceded the wheel was unsafe and should have been culled out of the fleet and thrown away.

It was conceded by all expert witnesses who testified, including representatives from all defendants, that this multi-piece wheel was not in "first class condition", was unsafe, and posed the risk of an explosive disassembly.

John Haug, manager of Budd's wheel engineering department, testified that both pieces of this wheel, (the rim-disc portion and the separate side ring and lock ring), had outlived their average useful life expectancy of between ten and fifteen years. Additionally, he stated that the side ring and lock ring assembly was the wrong size and type. The side ring and lock ring was a 7.33 V "R" and the rim-disc assembly was a model # 59930, 7.5 "R 5 o" size and type. Although a person like Zacher working in a service station would not see a cross sectional drawing of such a "mismatch", Budd had one ² prepared for trial. This drawing illustrates that, when viewed from that prospective, the separate components do not fit together properly. Haug concluded that they should not have been used together because the mismatch increased the likelihood of an explosive disassembly. Before the accident, the specific mismatch in question had been recognized in Budd's cautionary literature as a "foreseeable" mismatch.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There was nothing in any of theliterature which Budd had distributed during the twenty years or so prior to the accident to assist a tire repairman in determining whether the model # 59930 rim-disc was type "R" or a "R 5 o," so that a mismatch of parts could be detected or avoided. Moreover, this rim-disc assembly and the side ring and lock ring assembly were devoid of any imprinted designation of their type or style. An examination disclosed the absence of any "R" or "R 5 o" designation on either of them. Mr. Haug conceded that for the cost of a few cents in mass production, a short, meaningful message such as "R 5 o: Use only R 5 o ring," could have been indelibly imprinted on the rim-disc assembly.

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