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FORRY v. GULF OIL CORPORATION (01/03/68)

decided: January 3, 1968.

FORRY, APPELLANT,
v.
GULF OIL CORPORATION



Appeal from order of Court of Common Pleas of Dauphin County, Jan. T., 1959, No. 425, in case of Marlin Forry v. Gulf Oil Corporation, George Keller, individually and trading as Keller's Gulf Service, Gulf Tire & Supply Company et al.

COUNSEL

Macey E. Klein, with him Hurwitz, Klein, Meyers & Benjamin, for appellant.

James H. Stewart, Jr., with him Wilhelm E. Shissler, and Nauman, Smith, Shissler & Hall, for appellee.

John C. Dowling, with him Huette F. Dowling, and Dowling and Dowling, for appellee.

James K. Thomas, with him Metzger, Hafer, Keefer, Thomas and Wood, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell joins in this opinion. Mr. Justice Eagen concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno and Mr. Justice O'Brien join in this dissenting opinion.

Author: Jones

[ 428 Pa. Page 335]

This appeal attacks the propriety of an order of the Court of Common Pleas of Dauphin County which refused to remove a compulsory non-suit entered at the trial of a trespass action.

On February 27, 1957, Thomas Wagner purchased a new snow tire from George Keller, the operator of a Harrisburg service station. This tire had been manufactured by B. F. Goodrich Co. (Goodrich), distributed to Gulf Tire & Supply Co. (Gulf Tire), and sold by the latter to Keller.

Upon purchase of the tire, Keller mounted it*fn1 on the right rear wheel of Wagner's motor vehicle, after first having inserted in the tire Wagner's old inner tube which contained three patches. The next day, Wagner, having been informed by a passing motorist that his right rear wheel was "wobbling", drove to a service station operated by Marlin Forry to have the

[ 428 Pa. Page 336]

    tire and the wheel checked.*fn2 At Forry's station it was noted that the inner side of the tire at one point gave the appearance of being "unseated". In an attempt to remedy this situation, Forry removed the tire from the wheel, placed it upon a tire mounting machine, first deflated and then partially inflated the tire, removed it from the machine and, while inflating the tire, then resting upon the floor, an explosion occurred seriously injuring Forry.

Forry instituted a trespass action in the Court of Common Pleas of Dauphin County against Goodrich, Gulf Tire*fn3 and Keller. Forry alleged the following negligence: (1) that Goodrich manufactured this tire for resale in a defective condition dangerous to anyone using or working upon it; (2) that Gulf Tire, by having its name embossed on the tire casing, assumed any liability arising from the manufacture and defective condition of the tire; (3) that Keller, knowing or having reason to know of the tire's defective condition, sold the tire and, by using excessive force in originally mounting the tire, damaged the tire rendering it dangerous for use. Upon completion of Forry's evidence as to liability the trial court granted a compulsory non-suit as to all three defendants. From the order refusing to remove such non-suit, the instant appeal was taken.

Forry contends: (a) that, even without his expert witness' testimony as to the cause of the accident, the evidence was sufficient to prove the existence of a defective

[ 428 Pa. Page 337]

    condition in the tire and negligence in the original mounting of the tire and that such defect combined with the negligent tire mounting caused the tire to explode and that the trial court erred in not submitting the issues to the jury; (b) that the trial court, in excluding a hypothetical question addressed to Forry's expert witness because of the form of such question, committed error; (c) that Gulf Tire, which sold the tire to Keller, was subject to the same liability as Goodrich because its name had been placed on the tire casing; (d) that the trial court, in excluding evidence that Forry had handled the tire in accordance with the standard practice, committed error.

In passing upon the propriety of the entry of this compulsory non-suit, we accept the evidence produced by Forry as true, we read it in the light most favorable to him and we accord to him the benefit of all reasonable inferences arising from the evidence: Auel v. White, 389 Pa. 208, 210, 132 A.2d 350 (1957).

At the outset, it must be noted that Forry claims that the accident was caused by a combination of two factors, the defective condition of the tire and the improper handling of the tire when Keller mounted it on the wheel. Absent evidence or reasonable inferences therefrom that both factors caused the explosion, Forry will have failed to sustain his cause of action.

In addition to the evidence previously related, certain other evidence is of importance. When Wagner observed the tire at Forry's service station, the outside of the tire appeared to be properly "seated" on the rim but the appearance of the inside of the tire indicated that a section of the bead of the tire was "unseated" at a point 1/4" to 3/8" from the flange of the rim for a distance of 2 1/2" to 3". After the tire had been removed from the mounting machine, Forry ...


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