Wissman v. General Tire Co. of Philadelphia, Inc. , 327 Pa. 215 ( 1937 )

Argued May 12, 1937; reargued May 19, 1937. On June 3, 1933, the defendant tire corporation equipped a White truck belonging to the Liquid Carbonic Corporation with new tires. One of the rims and the lock ring that accompanied it were cracked. The defective condition was noticed by defendant's employees and the fact was communicated to the driver in charge of the truck. Three days later the vehicle was sent to the White Motor Company for adjustment of the brakes, an operation necessitating the removal of the wheels. Plaintiff, one of the employees of the White Motor Company assigned to the job, was injured when the lock ring burst from the wheel assembly during the process of removal. The "explosion" was caused by the inability of the defective rim and lock ring to withstand the heavy pressure of the inflated tire, while it was being removed without having been deflated.

Plaintiff's suit in trespass to recover for the injuries sustained in the accident is based upon defendant's alleged negligence in creating a "dangerous condition" and its legal responsibility "for the natural and probable consequences of its negligent acts." The jury's verdict was for plaintiff and his present appeal followed the entry of judgment n. o. v. in defendant's favor. Our statement of the facts has resolved all conflicts in the evidence in plaintiff's favor, as is required, in view of the jury's verdict.

Did defendant violate any legal duty which it owed to plaintiff? Defendant created no "dangerous condition." There is no evidence that the defective condition in the wheel was increased by defendant's substitution of new tires for old ones. It is not suggested that defendant's operations increased the size of the cracks or in any other way added to the hazard already present. No negligence in the actual mounting of the tires is argued. From all that appears defendant merely substituted new tires, and the sole ground of complaint is that a defective rim and lock ring were again utilized in assembling the wheel.

No case imposing liability under a factual situation akin to the present has been presented by counsel and our own efforts have disclosed none. To be sharply distinguished are cases such as those relied upon by appellant, in which the defendant has supplied chattels that are or are likely to be dangerous for the use for which they are supplied (Rosebrock v. GeneralElectric Co., 236 N.Y. 227; see Restatement, Torts, section 388), or where the defendant has built or manufactured such an article: Griffith v. Atlantic Refining Co., 305 Pa. 386; Bissonv. John B. Kelly, Inc., 314 Pa. 99; MacPherson v. Buick MotorCo., 217 N.Y. 382; see Restatement, Torts, sections 394, 395, 398. Similarly, liability is imposed on the contractor who negligently rebuilds or repairs a chattel: see Restatement, Torts, section 404. The present defendant's conduct falls within none of the foregoing categories. Under the circumstances of the present case the most that could possibly be required of defendant was notice to the owner of the vehicle of the defective condition. Indeed, it may well be that a contractor employed to make repairs is under no duty to inform his customer of a dangerous condition, which he has not been employed to repair, but which he discovers in the course of the making of the repairs agreed upon: see Restatement, Torts, section 403, caveat. Here, however, notice was given to the person in sole charge of the truck. Under the circumstances, notice to the employee in charge of the vehicle of the defect was notice to his employer. In the instant case, the driver was authorized to take the truck to defendant's place of business and have the tires changed and notice to him with respect to a matter connected with the changing of the tire was notice to his employer: Restatement, Agency, sections 268(1) (c), 283.

The acceptance of appellant's theory of liability would impose unjust burdens readily susceptible of conjecture. Would defendant be required to refuse to sell the new tires? Would it escape liability by replacing the old ones, the defective condition being ever-present? Would it be required to see to the acquisition of a new rim and lock ring? In fact, just how far would a contractor, under circumstances similar to those in the present case, be responsible for the safety of a vehicle of whose defects he was aware, but which he had not been employed to repair and over which he had no control. We are of the opinion that the most that could be required of defendant was notice to his customer and that duty, if indeed it existed, was discharged.

In this disposition of the case it is unnecessary to consider the questions of proximate causation and contributory negligence.

Judgment affirmed.