99 P.2d 795 | Kan. | 1940
The opinion of the court was delivered by
This was an action for damages for personal injuries sustained in an automobile casualty alleged to have resulted from the negligence of defendant. The jury answered special questions, and returned a general verdict for plaintiff for $5,922.35, on which judgment was rendered. Defendant has appealed.
The pertinent facts disclosed by the evidence, which tend to support the findings and judgment of the jury and trial court — although some of them were sharply contested' — -may be summarized briefly as follows: Plaintiff is the wife of Dwight Nelson, who operates a transfer and storage business, having a designated place of business in Salina. For four years prior to June, 1937, he owned a 1930 Chevrolet automobile, which was used by him and his wife for pleasure driving. His wife did more of the driving than he did
Defendant had acquired this Pontiac automobile from Arvid Youngquist of Lindsborg on May 10, 1937, as part payment on another automobile. Youngquist had owned the car six or seven months and in that time had driven it between four and five thousand miles. The tires which were on the car when he got it were the same ones on it when defendant acquired it. Within a day or two after he received the car defendant had one of his employees clean the car up and paint the sidewalls of the tires with a dressing similar to that used in dressing the tops of cars. This was done to improve the appearance of the tires. In thus painting the tires the workman would notice whether there were any serious cuts or bruises on the tires, and if so would report that to the foreman. No such report was made with respect to the tires on this car. The tires were not taken off the wheels and examined on the inside for breaks, cuts, or defects in the casings or tubes. Defendant made no inquiry as to how old the tires were, or how much they had been used. There is no evidence the car had been reconditioned in any way, other than to clean it up and to paint the sidewalls of the tires, to improve its appearance.
The jury was asked and answered special questions as follows:
“1. What caused the left front tire of the automobile driven by plaintiff to blow out? A. Negligence of defendant.
*515 “2. Was the left front tire on the automobile in a dangerous condition at the time the automobile was delivered by the defendant’s agent to the plaintiff’s husband? A. Yes.
“3. If you answer the foregoing question ‘yes,’ then state whether or not defendant or his agent knew said tire was in a dangerous condition at the time such delivery was made. A. Did not know, account of improper inspection. Tires should have been inspected inside as well as outside.
“4. If you answer question No. 3 ‘No,’ then state whether, under the circumstances in evidence in this case, the defendant or his agents and employees in the exercise of ordinary care should have known that the left front tire of the automobile was in a dangerous condition when it was delivered to the plaintiff’s husband? A. Yes; should have known by proper inspection, which should include inspecting all the tires both inside and outside.
“5. Did the defendant make the same inspection of the tires that is customary and ordinarily made by dealers in secondhand automobiles before the automobile was delivered to plaintiff’s husband? A. Yes.
“7. If you answer question No. 5 ‘yes,’ then state whether or not the defendant discovered any facts from which he should have known that the tire on the automobile was dangerous. A. Did not make proper inspection according to their advertising. Tires should have been thoroughly inspected both inside and outside.
“8. If you answer the foregoing question ‘yes,’ then state in detail what the facts were which he discovered. A. Did not discover anything because proper inspection was not made, according to defendant’s advertising. If tires had been inspected, both inside and outside, proper inspection would have resulted.
“9. If your answer to question No. 5 is ‘yes,’ then state:
“(a) When was such inspection made? A. A short time after used car was •delivered to them for resale.
“(b) Did the defendant or any employee or agent of the defendant make any examination of the inside of the tire. A. No.
“(c) At the time the automobile was delivered to the plaintiff’s husband, did the defendant’s agent and employee, John Vladar, state to the plaintiff’s husband, in substance, that the tires on the automobile were in good condition? A. Yes.
“10. At the time the automobile was delivered by the defendant or his agents to the plaintiff’s husband, did the defendant or his agent know that the automobile was to be tried out and used by the plaintiff? A. Yes.
“11. If you answer the preceding question ‘yes,’ then state:
“(a) Did the plaintiff at that time have knowledge that the defendant advertised to the public by means of signs on his places of business, newspaper advertising, and signs on highways, that the used cars offered for sale by defendant were renewed and guaranteed cars? A. Yes.
“(b) Did plaintiff at that time have knowledge that the defendant advertised to the public that the used cars offered for sale by him were safe and •dependable? A. Yes.
“(c) If your answer to the preceding questions (a) and (b), or either of them is ‘yes,’ then did the plaintiff believe when she tried out and used the*516 automobile that it was an automobile which the defendant had advertised as being renewed and guaranteed and that it was safe and dependable? A. Yes.
“(d) If your answers to the preceding questions (a), (b), and (c) are ‘yes/’ did the plaintiff rely upon such advertisements and statements? A. Yes.
“12. Was the upset of the automobile an accident as defined by the court’s instructions? A. No. (Negligence of defendant, caused by lack of inspection according to their advertising.)
“13. Was the defendant guilty of any negligence which was the proximate cause of the upset of the automobile and the injuries received by the plaintiff? A. Yes.
“14. If you answer the question No. 13, ‘yes/ state fully all of such acts of negligence. A. Tires were not inspected properly. Tires were not inspected on the inside, according to the evidence submitted.
“15. Was the plaintiff guilty of any negligence which caused or contributed to her injuries? A. No.
“16. At any time when the automobile was in the possession of the plaintiff or her husband, did the left front tire strike any obstruction of any kind which weakened it or caused it to blow out? A. No.”
Defendant’s motion to set aside the answers to special questions No. 1, that part of No. 3 after the words “Did not know,” Nos. 4, 5, 8, 11, 12, 13, 14, 15 and 16, and the general verdict, and to grant a new trial, was overruled.
Appellant complains of the rulings of the trial court in overruling his demurrer to plaintiff’s evidence, his motion for judgment at the close of all the evidence, and his motion for a new trial, and the ruling of the court excluding evidence offered, and in giving improper instructions. While argued here under the different headings, these points all bear upon appellant’s contention that the evidence was insufficient to sustain the findings, verdict and judgment, and this depends primarily upon the controlling rule of law applicable under the facts shown. Appellant properly argues that this is a tort action and that the burden of proof was upon plaintiff to prove negligence of defendant, which was the proximate cause of her injuries. 'Appellant also correctly argues he is not an insurer of the safety of the purchasers of used cars which he sells, and that the sale may be made under such circumstances that the rule of caveat emptor applies to the purchaser. However, such a dealer may sell 'a used car upon such representations as to its condition as to make him liable if he deliberately or negligently represents an automobile to be in good condition, safe and dependable to be used, and one who purchases the car, relying on such representations, and without fault on his part, sustains injuries by the use of the automobile.
“It is only necessary to discuss a few of the questions raised on appeal, construing the evidence in plaintiff’s favor as on directed verdict. (Yacobian v. Vartanian, 221 Mich. 25, 190 N. W. 641.) Our attention is called to Bayer v. Winton Motor Car Co., 194 Mich. 222, 160 N. W. 642, in which we stated that the rule of implied warranty, which may be regarded as an exception to the general doctrine of caveat emptor, does not apply to the purchase and sale of secondhand machinery such as used cars. However, in the instant case there is considerable evidence that defendants expressly represented that the car was free from defects and would not be sold if any defects existed. An additional guarantee of thirty days was made. When such statements are deliberately calculated to induce confidence in the buyer and promote the sale, they cannot be considered merely ‘puffing’ of goods to promote sales. Where sellers are describing the condition of chattels so likely, if defective, to occasion injury to life and limb, they should anticipate close scrutiny of their language by the courts. What might be considered mere ‘puffing’ of a perfectly harmless product, must be held a distinct representation in the case of an automobile. The condition of the Terraplane was the most material consideration in the entire transaction between the parties, and the words employed by defendants to describe it are clearly within the rule of Worden v. Peck, 245 Mich. 237, 222 N. W. 101. See, also, Murphy v. McGraw, 74 Mich. 318, 41 N. W. 917.
“Appellees admitted that only a few days before the sale, the wheels of the car had been removed for painting, apparently by an independent contractor, who did such work for defendants. Nevertheless, without making any inspection of the wheels thereafter, defendants represented that the car was in ‘perfect condition.’ Obviously, defendants did not know whether or not the car was in ‘perfect condition.’ It has long been established that a party who mis*518 represents a fact is subject to liability for bodily harm resulting from an act done by another in reliance on the truth of the statement, if the speaker intends his statement to induce the action, or should reasonably recognize that it is likely to so induce it, and if he knows that it is false or that he has not the knowledge which he professes to have. (See Restatement of Torts, § 310; Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co., 4 Cir., 226 F. 169; Valz v. Goodykooniz, 112 Va. 853, 72 S. E. 730. Cf. Grinnell v. Chemicals Corp., 282 Mich. 509, 276 N. W. 535; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P. 2d 409, 15 P. 2d 1118, 88 A. L. R. 521; and see Harper, Law of Tort, § 76.) While buyers of used cars would ordinarily be required to inspect them for defects, under the rule of caveat emptor, there was evidence here sufficient from which a jury could find that the buyers relied on the defendants’ statements. These statements, whether careless or deliberate, induced the' buyers to drive the car while in imperfect condition. . . .
“In so deciding, we by no means hold that a used-car dealer is an insurer of the cars he sells. We do not hold that he is required to inspect them for latent defects. ... We hold only that a dealer cannot represent a car to be in ‘perfect condition’ where he does not have the knowledge of the condition which he professes, without assuming the risk of injuries proximately caused by such misrepresentation. Such decision requires only that if a dealer sells used cars ‘as is,’ he should not tell his customers that they are without defects. (See Supera v. Moreland Sales Corp., 13 Cal. App. 2d 186, 56 P. 2d 595; Jones v. Raney Chevrolet Co., 213 N. C. 775, 197 S. E. 757, and Cf. Baxter v. Ford Motor Co., 168 Wash. 456, 12 P. 2d 409, 15 P. 2d 1118, 88 A. L. R. 521; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357.)” (pp. 124-126.)
In addition to the authorities cited in the decision just quoted, the following are to the same effect: Dostie v. Lewiston Crushed Stone Co., (Maine) 8 Atl. 2d 393; DeLair v. McAdoo, Appellant, 324 Pa. 392, 188 Atl. 181; Miles v. Chrysler Corporation, (Ala.) 191 So. 245; Egan Chevrolet Co. v. Bruner, 102 F. 2d 373; Pellette v. Mann, 116 Kan. 16 (syl. ¶ 4), 225 Pac. 1067; Bergstresser v. Van Hoy, 142 Kan. 88, 92, 45 P. 2d 855.
In this case plaintiff did not have the burden of showing defendant actually knew the tire was defective when he represented the tires were good. It was defendant’s duty to know the tires were good when he represented them to be so. If he made such representation without having made sufficient inspection of the tires to know whether his statement was correct he is subject to the same liability as though he had made a thorough inspection of the tire, knew it was defective, and had stated it was good. In either event the statement would be inaccurate and the rule of liability the same.
Appellant argues it was not clearly shown the tire which blew out Sunday afternoon was defective Saturday afternoon when the tires
The court’s instructions were in harmony with the rule of law which we hold applicable to the facts shown by the record and found by the jury.
Appellant complains that certain evidence offered by him was excluded by the trial court. This evidence pertained to the general rule of defendant respecting guaranteeing used cars, and particularly the tires on used cars. What the general rule of defendant was in that respect, and insofar as it differed from his signs, placards and advertisements, was not material, since neither plaintiff nor her husband had been informed with respect thereto; hence the ruling of the court was correct.
We have examined all of the authorities cited by appellant, including Bogart v. Cohen-Anderson Motor Co., (Ore.) 98 P. 2d 720 (1940), and find nothing in them which would require or justify a conclusion different from the one we have reached.
We find no error in the record. The judgment of the court below is affirmed.