Lynch v. Barrington , 159 Fla. 810 ( 1947 )

A careful study of the record discloses that the only evidence offered by the plaintiff below in support of the allegation of a defective tire was that given by Mrs. Warren, wife of the plaintiffs, whose opportunity to observe the tire was after the collision. Her testimony on this pivotal point was contradicted by Will Parker, one of the employees, and Mr. Lohman, one of the partners. There is no evidence of a blow-out of the tire but that the same went flat after the impact of the two cars. If the challenged judgment is sustained the legal effect thereof will be to make the appellant a guarantor or an insurer of the safety of the appellee, when his legal duty was to use reasonable care in renting the car in question. It is my view that the following authorities are here controlling: Saunders System Birmingham Co. v. Adams, 217 Ala. 621,117 So. 72, 61 A.L.R. 1333; Blashfield's Cyclopedia of Automobile Law Practice, Vol. 4, pp. 292-4, par. 2253; Berry on Automobiles, Vol. 2 (6th ed.) p. 1092, par. 1337; 5 Am. Jur. 698, par. 358; Huddy's Cyclopedia of Automobile Law, Vol. 11-12 (9th ed.) p. 465, par. 369.

The failure of the plaintiff to establish the material allegation of a "defective or worn tire," in my opinion, requires a reversal for new trial of the three cases.

BUFORD, J., concurs.