Egan Chevrolet Co. v. Bruner

• Decision Date: 24 March 1939
• Docket Number: No. 11292-11295.,11292-11295.
• Citation: 122 ALR 987,102 F.2d 373
• Parties: EGAN CHEVROLET CO. v. BRUNER (three cases). SAME v. GUNDERSON.
• Court: U.S. Court of Appeals — Eighth Circuit

122 ALR 987, 102 F.2d 373 (1939)

EGAN CHEVROLET CO. v. BRUNER (three cases). SAME v. GUNDERSON.

Nos. 11292-11295.

Circuit Court of Appeals, Eighth Circuit.

March 24, 1939.

Stan D. Donnelly, of St. Paul, Minn. (Wood R. Foster and Oppenheimer, Dickson, Hodgson, Brown & Donnelly, all of St. Paul, Minn., on the brief), for appellant.

C. A. Taney, Jr., of Minneapolis, Minn. (L. S. Doolittle, of River Falls, Wis., Fowler, Youngquist, Furber, Taney & Johnson, of Minneapolis, Minn., and Knowles & Doolittle, of River Falls, Wis., on the brief), for appellees.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

SANBORN, Circuit Judge.

These personal injury actions, which were tried together in the District Court and argued together in this Court, arose from a head-on collision between a Chevrolet automobile belonging to and being driven by Merle Bruner, a citizen of Wisconsin, and a Chevrolet truck owned by Hyman Rutman, a citizen of Minnesota, and being driven by one of his employees. The collision occurred upon United States Interstate Highway No. 12 at Baldwin, Wisconsin, on June 3, 1937, at 5:30 o'clock in the afternoon. The truck was at fault, having suddenly and without warning veered to the left and crashed into the Bruner automobile. Mr. Bruner and those who were with him in his automobile were severely injured. The two employees of Hyman Rutman who were in the truck blamed the collision upon a breakdown of its steering mechanism. This mechanism was found to be disconnected after the collision. The day before the collision, Rutman had purchased this truck, a used 1934 Chevrolet, from the appellant, a Minnesota corporation and dealer in new and used motor vehicles at South St. Paul, Minnesota. It had taken the truck in trade, had inspected, repaired and reconditioned it, and had sold it to Rutman as a safe vehicle for use upon the public highways. In the belief that the appellant, at the time it sold the truck, knew or should have known that the steering mechanism was dangerously defective, and in the further belief that the negligence of the appellant in selling the truck in that condition was the proximate cause of the collision, the appellees brought these actions against it and Rutman. The appellant denied that it was negligent and denied that the collision was due to any defect in the steering mechanism of the truck. Rutman alleged that if the collision was caused by negligence, it was caused by the negligence of the appellant. The cases were tried to a jury, which returned verdicts against the appellant alone. From the judgments entered upon the verdicts, these appeals were taken.

The appellant contends: 1. That the court should have directed verdicts in its favor, because (a) it appeared conclusively from the evidence that the appellant had exercised the care imposed upon it by law with respect to the sale of this motor truck, and (b) the evidence tending to show that the cause of the collision was the defective steering mechanism of the truck was unsubstantial because speculative and opposed to physical facts. 2. That the court erroneously admitted in evidence testimony and exhibits regarding advertisements, warranties and representations of the appellant with respect to the truck sold to Rutman. 3. That the court erroneously refused to give a certain instruction requested by the appellant, and erred with respect to a portion of the instructions given.

Some of the questions argued may be disposed of briefly.

It is unimportant whether the controlling law is that of Wisconsin, where the accident happened, or that of Minnesota, where the truck was sold. There is no reason to believe that the common law of Wisconsin and the common law of Minnesota with respect to the liability of a used-automobile dealer, under the circumstances here presented, differs in the slightest particular. A comparison of the cases of Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N.W. 1103, 15 L.R.A. 818, 32 Am.St.Rep. 559, Ellis v. Lindmark, 177 Minn. 390, 225 N.W. 395, and Ferraro v. Taylor, 197 Minn. 5, 265 N.W. 829, with the case of Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N.W. 855, 60 A.L.R. 357, indicates that the applicable law of these states is the same and in accordance with the general law on this subject. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440; Hudson v. Moonier, 8 Cir., 94 F.2d 132 (reversed because of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, on the ground that the case was decided without regard to what might be the common law of Missouri, where the accident occurred, 304 U.S. 397, 58 S.Ct. 954, 82 L.Ed. 1422), affirmed on reargument, 8 Cir., 102 F.2d 96, opinion filed March 6, 1939.

A retail dealer who takes a used truck in trade and undertakes to repair and recondition it for resale for use upon the public highways owes a duty to the public to use reasonable care in the making of tests for the purpose of detecting defects which would make the truck a menace to those who might use it or come in contact with it and in making the repairs necessary to render the truck reasonably safe for use upon the public highways, and is charged with knowledge of defects which are patent or discoverable in the exercise of ordinary care. This rule, we think, is readily deducible from Flies v. Fox Bros. Buick Co., supra; Hudson v. Moonier, supra, 94 F.2d 132; Ferraro v. Taylor, supra; MacPherson v. Buick Motor Co., supra; Sec. 404, p. 1092, Restatement of the Law of Torts. Compare Bergstresser v. Van Hoy, 142 Kan. 88, 45 P.2d 855, 99 A.L.R. 236. The rule does not mean — as the appellant seems to fear — that a dealer in used motor vehicles, who undertakes to recondition a truck for resale, becomes virtually an insurer of the safety of the truck he sells, nor does it mean that he is required to disassemble an entire truck to examine each of its parts. It does mean that he must use reasonable care to ascertain whether the truck is equipped with the minimum essentials for safe operation, one of which unquestionably is a steering mechanism which will work and which will not shortly shake apart under normal use. One who permits a truck with a dangerously defective steering mechanism to be used upon the public highways, not only has reason to anticipate that it will cause an accident, but may be almost certain that it will do so. "In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty." MacPherson v. Buick Motor Co., supra, page 1053 of 111 N.E., page 699 of L.R.A.1916 F.

The admission of evidence, over the appellant's objections, to show that at the time it sold this truck to Rutman it was holding itself out as a dealer in "O.K.'d used cars and trucks", that its used cars and trucks were in a lot at the entrance of which was a sign reading, "Egan's O.K.'d Used Cars, Truck Headquarters", and that the Rutman truck was in the lot and was an "O.K.'d" truck and had an "O.K.'d" tag on it, which meant that it was reconditioned and fit for use upon the public highways, was not, we think, reversible error. The appellees were endeavoring to establish responsibility for this allegedly dangerously defective truck being upon the public highway at the time of the collision. Up to the time of the introduction of this evidence, there had been no concession by the appellant that it had sold the truck to Rutman as a road-worthy truck. The evidence certainly had some bearing upon the nature of the appellant's undertaking with respect to the truck and the duty which it owed to the public, and also some bearing upon the question of the duty of Rutman, whose defense was that he had purchased the truck from a reputable dealer who had represented that it was mechanically sound and fit for use, and that he (Rutman) therefore was excused from making an independent investigation to ascertain its condition. But even if the evidence had been inadmissible, we think its admission would not have been prejudicial. The appellant's real defense was that it had performed its duty with respect to the inspection and repair of this truck, that it had no knowledge, actual or constructive, of any defect at the time of sale, and that the accident was not due to any failure of diligence on its part. Its own evidence showed that it had sold this truck to Rutman as one which was safe and fit for use and that it in good faith believed it to be in that condition, and that it was still of the opinion, at the time of the trial, that the truck was not defective.

The District Court was meticulously careful in instructing the jury. The instructions we regard as entirely fair, accurate and complete. That being so, the court did not err in refusing to give the appellant's requested instruction,¹ the substance of which was sufficiently covered in the charge. Compare Hall v. Aetna Life Ins. Co., 8 Cir., 85 F.2d 447, 450. It is not conceivable to us that the jurors were misled as to the issues of fact, or that they supposed that the appellees' causes of action were based upon misrepresentation or breach of warranty in connection with the sale of the truck. The theory upon which the case was submitted is shown by the portions of the court's instructions quoted below.²

That brings us to the real question in these cases, which is whether there was any substantial evidence to sustain the verdicts. In considering that question, there are several matters to be kept in mind. First. All facts that the appellees' evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts must be drawn in their favor. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 78 L.Ed. 492; Illinois Power & Light Corporation v. Hurley, 8 Cir., 49 F.2d 681, 686; Columbian Nat. Life Ins. Co. v. Comfort, 8 Cir., 84...