This сase involves an action for property damage arising under strict liability law, sometimes called products liability, in existence in 1975 at the time of the alleged sale of the defective product. See Code § 105-106 as amended (Ga. L. 1968, pp. 1166, 1167; and after 1975 by Ga. L. 1978, p. 2202; 1978, p. 2218; 1978, p. 2267).
On December 3,1975, Marvin C. Hall and Pearl Irene Hall purchased a 1975 Ford tri-axle dump truck for use in a new business venture. The dump truck came equipped with Firestone 12-ply tires, that is, two front tires "1100 x 20" tread 12 ply”; 8 tires rear, "1100 x 20” tread 12 ply.” The truck was also specially equipped with a third axle "W/4 New Tires” to make it into a tri-axle dump truck.
As one of the first jobs undertaken by Marvin C. Hall, he contracted to haul crushed rock from Columbus to Bainbridge, Georgia. After a few trips, Hall сontends that a front tire blew out, necessitating the purchase of a new tire and tubes, and other incidental expenses involved in the blowout. He also contends the truck was otherwise damaged as a result of the blowout, necessitаting other repairs to the truck, which were later performed in Atlanta where he had purchased the truck, causing him to *561 lose profits for the time period it was out of service. He also returned the destroyed tire for adjustment by the seller of the truck with Firestone, the same being in two pieces, "split right down the middle all the way around, and some of it, the tire, was missing.” Firestone then told him "they weren’t going to do anything about it.”
Whereupon the Halls, as plaintiffs, sued Firestone Tire and Rubber Company, seeking damages as the result of a breach of warranty in the amount of $999.95; $1,500 for lost wages (for plaintiff Marvin C. Hall) due to said breach, and for all reasonable attorney fees and reasonable costs of court and expensеs of litigation incurred by reason of the defendant’s bad faith, and alleging defendant had been stubbornly litigious. By amendment during the trial the strict liability theory was invoked against the defendant as the manufacturer, again seeking damages in the amount of $999.95 for dаmages incurred to said truck and for tire replacement; $1,500 for lost wages (for plaintiff Marvin C. Hall) "and/or such reasonable hire of said truck while it was being repaired and unusable, together with the costs of this action,” and by another amendmеnt seeking expense of litigation and attorney fees for bad faith and stubborn litigiousness.
At the completion of the trial the case was submitted to the jury on the theory of strict liability that the manufacturer of any personal property sold as new property, either directly or through a dealer or any other person, shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate cause of the injury sustained.
The trial court also submitted to the jury the issue of attorney fees if the jury determined that the defendant had no genuine defense to this action "as to the reasonable value of such services based on the time spent and the legal and factual evidence or factual issues involved in accordance with the prevailing fees ... in the metropolitan Atlanta area.” The jury returned a verdict in favor of the plaintiffs in the amount of $1,730.38 plus $600 *562 for attorney fees. A judgment was entered thereon. Whereupon the defendant filed a motion for judgment notwithstanding the verdict and in the alternative for a new trial, which was thereafter amended and denied after a hearing. Defendant appeals. Held:
1. Defendant first alleges error in the denial of its motion for judgment notwithstanding the verdict on the ground that the plaintiffs failed to establish the existence of a manufacturing defect in the tire at the time that it left the hands of the manufacturer. Defendant contends that the truck wаs equipped with "12-ply rated tires”; that the truck was overloaded, the major cause of blowouts is deflection and based on the testimony by its expert, the sole and proximate cause of the damage was the fault of the plaintiffs. A tirе had been returned to the defendant for examination. Plaintiff Marvin C. Hall, however, contends the tire involved in the blowout was returned in "two pieces” and as shown by his evidence it was a "1100 x 20" tread 12 ply” tire. He testified that the tire produced by the dеfendant at the trial was not the tire involved in the incident and which blew out. Defendant’s expert testified that the tire he examined contained eight plys and is referred to in the industry "as a 12-ply rating tire.”
Defendant contends that the plaintiffs failed to shоw that the manufacturer’s product when sold by the manufacturer was defective. See
Center Chemical Co. v. Parzini,
2. Defendant next contends that the evidence failed to establish the measure of damages for the injury to the personal property. Here plaintiffs did not attempt to establish "the difference between the value of the property before the damage and afterwards” as was the case in
Douglas v. Prescott,
3. The next enumeration of error contends that the plaintiffs’ evidence failed to establish any bad faith or stubborn litigiousness on the part of the defendant, that is, that same must have been a part of the transaction which gave rise to the plaintiffs’ original claim, contending that the issue of liability of the defendant was hotly contested here. See
Harrison v. Ivie,
4. The expert witness testified as to his examination of a Firestone tire turned over to him that there was no manufacturing defect present in that tire. Plaintiff Marvin C. Hall testified that this exhibit offered in evidence about which the expert testified was not the tire involved in the blowout. Therefore, the trial court did not err in instructing the jury that the burden of proof was upon the defendant to establish by a preponderance of the evidence that its exhibit (about which the expert was offering testimony) was in fact "the same tire that was on the vehicle at the time of the incident.” The trial court further charged that if the jury should find that the defendant failed to prove this fact by a preponderance of the evidence, that is, that it was the tire that was on the plaintiffs’ vehicle at the time of the incident, "then I charge you that you should disregard the entire testimony of... [the expert]...” Defendant contends that the burden of proоf was upon the plaintiffs to prove that it was not the tire. However, the chain of possession of the tire allegedly returned to the defendant for adjustment and the fact that the plaintiffs had purchased a "12-ply” tire whereas the expert was testifying in regard to an 8-ply tire (12-ply rated) was sufficient to require the burden of proof to be upon the defendant to prove that its expert testimony was in regard to the tire involved in the incident. We find no merit in this complaint.
5. Error is next enumеrated to the refusal to charge a written request of the defendant that the mere fact of a tire blowout does not demonstrate manufacturer’s negligence, nor tend to establish that the tire was
*565
defective since blowouts cаn be attributed to myriad causes, including not only the care with which the tires are maintained, but the conditions of the road over which they are driven and the happenstance striking of damaging objects. This written request was based upon
Firestone Tire &c. Co. v. Jackson Transp. Co.,
6. There was no evidence to substantiate a charge as to accident as applied to negligence cases inasmuch аs this was not a case involving negligence. The trial court did not err in refusing to give a written request as to the definition of "accident” as applied to negligence cases. The case of
Cobb v. Big Apple Supermarket of Columbus, Inc.,
7. The only evidence presented as to the weight carried by the truck (containing 14 wheels) at any time prior to or at the time of the blowout was that of the plaintifFMarvin C. Hall. This evidence was insufficient to show that the tire in question was overloaded and violative of Code Ann. § 95A-959(a) (Ga. L. 1973, pp. 947, 1096; 1974, p. 1111; 1975, p. 68; since amended in 1978, p. *566 1965, effective October 15, 1978, and in 1978, pp. 1989, 1990, effective April 5, 1978). The evidence did not authorize the charge that the statute limited the weight on аny wheel since there was insufficient evidence to determine what weight was being carried by this wheel. This charge was likewise argumentative in favor of the defendant.
Having found no reversible error in the proceedings in the trial court for any reason assigned, we must affirm the judgment.
Judgment affirmed.