Defendant, a used car dealer, appeals from an adverse judgment in an action to recover damages for personal injuries received by plaintiff while driving a 1948 automobile she had purchased from defendant.
Plaintiff and defendant executed an instrument prepared by him on a printed form entitled “Auto Sales Order.” The instrument, which stated that the purchase price of the ear was $125, contained a provision, commonly called a “merger” clause, reading, “Entire agreement is expressed hеrein in writing. No other terms or conditions, oral or written, will be recognized.” The instrument also stated, “All used cars . . . sold ‘As Is’ and without guarantee as to condition, mileage, year or model, unless otherwise specified in writing. ’ ’
Several days later, as plaintiff was driving down a steep hill, the ear lost all braking power, gained momentum, and attained a rapid ratе of speed. Plaintiff was injured when her ear collided with two other vehicles several blocks away.
Plaintiff’s testimony may be summarized as follows: When defendant showed her the сar prior to the execution of the sales order, he said that the car would be put into “good shape” and that he would put better tires on it. At plaintiff’s request defendаnt went with her to a gas station to have the car checked by a mechanic, who, after driving it, said that it was “pretty loose” and that the brakes needed adjusting. Defendant said he would make the necessary adjustments, and, after he and plaintiff returned to the used ear lot and executed the instrument, he said the car would be ready in two days. When plaintiff went back for the car, she asked if it was necessary to take the car to a garage for a “checkup,” and defendant replied that she did not “have tо worry about the ear for the next two months.” She noticed the tires had not been changed, and he told her he would change them if she would bring the ear back in a few days. She did sо, and he replaced the tires.
An expert called by plaintiff testified as follows: The foot brakes were defective and failed to work. The defects included an intеrnal leak of brake fluid in the master cylinder, and where such leaks are present the brake pedal will go down to the floor board if pressure is kept on the pedаl. There were also leaks in both of the front wheel cylinders, the front brake linings were “badly worn,” and the brake drums were scored. When the foot brakes failed, plaintiff apрlied the hand brakes, and this generated torque pressure causing two
Defendant’s testimony may be summarized as follows: He told plaintiff before and during the signing of the instrument that hе would replace the tires but did not make any of the other statements attributed to him by plaintiff, and the mechanic did not say anything to him concerning the brakes.
In response to interrogatories submitting special issues of fact, the jury found that defendant orally agreed to put the automobile into a safe mechanical condition equipped with adequate and proper brakes and that defendant breached the agreement. It also found breaches of express and implied warranties which proximately caused plaintiff’s injuries. The jury was unable to agree whether there was negligenсe by defendant which proximately caused the injuries. The general verdict was in favor of plaintiff, assessing damages at $35,000.
Section 24007 of the Vehicle Code provides, “Nо dealer shall sell a new or used motor vehicle without first testing and, if necessary, adjusting the . . . brakes on the vehicle to conform with this code and department regulations аdopted pursuant to this code unless the vehicle is sold for the purpose of being wrecked or dismantled.” Motor vehicles must be
It is obvious from the sections referred to above that a dealer such as defendant who sells a used automobile for ordinary purposes is required to make a reasonable inspection of the brake system and that where he has reason to believe from the inspection or from some other source that the brakes are defective he must рlace the brakes in “good condition and in good working order” before he delivers the vehicle to the purchaser. These statutory requirements are designed to рrotect the general public as well as purchasers. They constitute implied-in-law terms of every sales contract to which they are applicable and may not be waived or defeated by agreement of the parties. (Cf. Metropolitan Water Dist. v. Marquardt (1963)
The jury, as we have seen, made a special finding that defendant breached an oral agreement to put the brakеs into adequate and proper condition, and this amounts to a finding, supported by ample evidence, that the statutory requirements were not complied with. Thus the finding of thе jury, although made for purposes of another legal theory, shows a violation of defendant’s statutory duty which was part of the contract, and the judgment must be affirmed unless, as urged
Defendant argues that the prоximate cause of the accident was not the defective condition of the foot brakes but was the failure of the two welds holding the rear axle housing in placе. However, the evidence shows that the failure of the welds was caused by the application of the hand brakes and that plaintiff would not have been forced to use the handbrakes had the foot brakes functioned. It appears that the hand brakes exerted more pressure on the welds than would have resulted from foot brakеs in proper condition. Under the circumstances it could reasonably be inferred that the accident would not have happened but for the defective cоndition of the foot brakes.
The judgment is affirmed.
Traynor, J., Schauer, J., McComb, J., Peters, J., Tobriner, J., and Peek, J., concurred.
Appellant’s petition for a rehearing was denied September 10, 1964.
Notes
The mechanic was out of the country at the time of the trial and did not testify.