Hewitt v. General Tire and Rubber Company , 3 Utah 2d 354 ( 1955 )

HENRIOD, Justice.

I dissent. The main opinion correctly asserts that the burden of proving defendant’s negligence is on plaintiff. It seems to me that it then departs from the very rule it announces and says, in substance arid effect, and with the aid of inferences that since there is no evidence of contributory negligence, no evidence of negligence by third persons, and no showing by defendant that the latter tested this particular tire, the defendant just simply must have been negligent.

In support of this result (which, so far as this record is concerned, seems to me to relieve the plaintiff of the burden of proving defendant’s negligence and 'places upon the latter a burden of proving non-negligence), MacPherson v. Buick Motor Co. is cited. . But there, as is not the case here, .there was real evidence, beyond mere inference or conjecture, of not only a defect, but of a defect that “could have been discovered by reasonable inspection, and that inspection was omitted”, [217 N.Y. 382, 111 N.E. 1051] as stated by Mr. Justice Cardozo. (Italics supplied.) In the instant case there was no proof that any inspection was omitted.

From the time this tire was manufactured until the accident, about a year and a half expired, during which time anything could have happened which may have resulted 'frbm any number of circumstances or persons. If we are to infer negligence on the part of the defendant because there is no proof that plaintiff was negligent, and because no evidence was produced.that a third party was negligent, it would seem just as sensible to infer that the defendant, a nationally known firm with an excellent reputation for manufacturing safe tires, was not negligent,. because, there was no proof that it did not inspect the tire. In the writer’s opinion, the record in this case shows no facts produced by the plaintiff that- will either sustain the burden of proving that the defendant was negligent ’or did anything that violated any duty which the latter owed to the former, or that would give rise to the inference which the -majority opinion, by way of ipse dixit, has raised.

In my opinion, the decision in this case virtually makes a manufacturer of tires or anything else an insurer for the safety of the consumer, where such consumer can show freedom ’ from contributory negligence and point to facts from which an inference might be drawn that third persons more likely than not did nothing to produce a defect in the article, without any real evidence that the manufacturer was negligent or violated any duty toward the consumer. It seems that such a conclusion relieves plaintiff from the burden of proving defendant’s negligence and requires defendant to prove non-negligence, since plaintiff’s lack of contributory negligence cannot prove defendant’s negligence, and the case would be rare where a plaintiff could not present facts from which an inference could be drawn that third parties had nothing to do with the injury, and it has never been the duty of the defendant to ferret out third parties affirmatively to prove non-negligence on his part. This very case illustrates the facility with which an inference may be said to have 'been created. To.raise the inference that third parties could not have made the tire defective/the' majority'opinion points to tests made by the defendant on other tires that would break at 1S5 pounds pressure, which in my opinion raises no such inference at all. After stating that' such fact points to an inference that third persons had nothing to do with the defect, the majority opinion then says that'“Had the bead been broken in some other conceivable manner, the casing of the tire would not have remained intact.” The inconsistency of this statement seems evident when it is realized that the bead must have been broken in some other manner, else the plaintiff would not have been injured when he applied but 35 pounds pressure, and if the quoted statement of the majority opinion is correct that the casing would not have- remained intact, the casing in this case would not have been intact and the plaintiff easily could have observed such condition. Other matters which the majority opinion says help raise the inference that third persons had nothing to do with the defect, were absence of evidence of rough handling by third persons, and absence of evidence that the bead would deteriorate under certain storage conditions. How such absence of evidence can raise any inference is difficult to understand. It is unlikely that the plaintiff would come forth with damaging evidence if he had it, and the defendant ordinarily would not have access to any evidence of handling by third persons, and besides has no duty to produce it, since plaintiff is required to prove that defendant was negligent, — not the defendant to prove his non-negligence.

Although the majority opinion concludes that the jury was justified in "excluding the possibility of damage by a third person", so far as I can see, su'ch Conclusion is a gratuity not predicated on the facts, and it would seem as sensible to me to infer that third persons had nothing' to do with any defect if there were a complete absence of evidence' as to the tire’s manufacture, transportation, storage, handling and use. But such absence of evidence certainly could not relieve plaintiff of his burden of proof, nor impose liability on a defendant.

In my opinion, the decision here is difficult to square with our recent case of Matievitch v. Hercules Powder Co., 3 Utah 2d 283, 282 P.2d 1044.

WOLFE, C. J., being disqualified did not participate in the hearing of this causa.