Simon Hardware Co. v. Pacific Tire & Rubber Co.

Plaintiff alleges in her complaint that she was injured as the result of the blowout of a tire which she had purchased from Simon Hardware Company, and she seeks damages for breach of an implied warranty. She states a cause for negligence, but in very general terms, and only against fictitious defendants. Simon Hardware generally denies and sets up affirmative defenses, but there is no issue before us on this appeal as between plaintiff and Simon Hardware. The issue in the case relates to the first amended cross-complaint of Simon Hardware against Pacific Tire & Rubber Company, cross-defendant. In said cross-complaint Simon Hardware alleges: (1) that Simon Hardware bought certain tires from Pacific Tire, and, on information and belief, that one of these tires has been supplied to plaintiff by Simon Hardware, and that, should it be determined that Simon Hardware is liable to plaintiff, this would have been caused by active and primary negligence of Pacific Tire; (2) an implied agreement of indemnity by Pacific Tire to Simon Hardware; (3) express warranty of safety and suitability of the tires; (4) implied warranty thereof. The cross-complaint states that an actual controversy…