Bock v. Truck & Tractor, Inc.

• Decision Date: 09 July 1943
• Docket Number: 29013.
• Citation: 139 P.2d 706,18 Wn.2d 458
• Court: Washington Supreme Court
• Parties: BOCK et ux. v. TRUCK & TRACTOR, Inc.

139 P.2d 706

18 Wn.2d 458

BOCK et ux. v. TRUCK & TRACTOR, Inc.

No. 29013.

Supreme Court of Washington

July 9, 1943

Department 1.

Action by John Bock and another against Truck & Tractor, Inc., for injuries sustained in an automobile accident. From a judgment of dismissal, plaintiffs appeal.

Reversed with direction.

Appeal from Superior Court, Grays Harbor County; William E Campbell, judge.

Roy C Stroud, Cheney & Hutcheson, and John Gavin, all of Yakima for appellants.

Theodore B. Bruener, of Aberdeen, and Neal, Bonneville & Hughes, of Tacoma, for respondent.

STEINERT Justice.

This was an action for the recovery of damages for personal injuries. The trial court sustained defendant's demurrer to the complaint, concededly upon the ground that the pleading did not state facts sufficient to constitute a cause of action. Plaintiffs declined to plead further, and the court thereupon entered judgment dismissing the action. From that judgment, plaintiffs appealed.

Since the demurrer admits the truth of all allegations of fact well pleaded in the complaint, such allegations must now be considered as constituting the sole and actual facts in this case. We shall set forth certain portions of the complaint in substance only, but for the sake of accuracy will quote directly those paragraphs, or parts thereof, which contain the essence of the alleged cause of action.

Appellants are husband and wife. Inasmuch as the wife is the particular complainant in this action, we shall hereinafter refer to her as though she were the sole appellant. Respondent is a corporation engaged in the business of repairing, reconditioning, and selling motor vehicles for use and travel upon the public highways.

On or about November 18, 1940, respondent entered into negotiations with one J. J. LaVergne, with the view of selling to LaVergne a certain 'used' automobile truck which respondent then owned. The complaint (which uses the term 'defendant' to designate the respondent herein) alleges in paragraph 4:

'That said truck was at such time in the possession and under the control of said defendant, and was orally represented in such negotiations to said LaVergne by said defendant to have been completely and properly overhauled and reconditioned by said defendant, and to be fit for safe and proper operation upon the public streets and highways. That said defendant orally represented to said LaVergne in such negotiations that said truck was overhauled, reconditioned and in safe and proper condition in order to induce the purchase of the same by said LaVergne.

'That defendant further specifically orally represented that said truck carried a 'new truck guarantee' thereby meaning that said truck was in all respects in safe and proper condition for operation upon the public streets and highways.'

In consequence of such negotiations and representations, an agreement was effected whereby on November 18, 1940, respondent sold and delivered the truck to LaVergne.

The complaint then continues, in paragraph 5: 'That at the time of the delivery of said truck as aforesaid to said LaVergne, and at all times while same was in the possession of the defendant, and at all times herein mentioned thereafter, said truck was in truth and in fact in a highly defective and dangerous condition and in such condition as to be dangerous to persons and property and a menace upon the public highways, in that the front left spring thereof was cracked and broken to such an extent that ordinary and usual movement of travel upon the public highways would be likely to cause the same to crack completely through and collapse, thereby disarranging the axle and steering assembly on said truck and rendering it incapable of control by the driver thereof. That said defective and dangerous condition was known to said defendant Truck & Tractor, Inc. at the time of the delivery thereof, or should have been known by said defendant if it had but taken any precaution to make a reasonable and proper inspection of said truck, or any inspection at all, Before delivering same for use upon the public highways. That at the time of the sale and delivery of said truck, the defendant Truck & Tractor, Inc., a corporation, knew, or in the exercise of reasonable care should have known, of such defective and dangerous condition, and knew that said truck was to be placed in use upon the public highways by said LaVergne, and knew, or in the exercise of reasonable care should have known, that said truck, when placed in operation upon the public highways, due to its said defective condition, would be likely to cause injury to persons operating the same or riding therein, and was incapable of safe use and operation for travel upon the public highways due to its said defective condition.'

Paragraph 6 of the complaint alleges: 'That shortly prior to the delivery of said truck by the defendant to said LaVergne, the defendant undertook and attempted to repair and recondition the said truck for resale for use upon the public highway, and the defendant herein, through its duly authorized agents and employees performed labor in repairing and reconditioning said truck, but the defendant, through its said agents and employees, performed the said labor in repairing and reconditioning work, in a negligent manner in that the said defect in the truck hereinabove referred to was not corrected and remedied. That the said defect was such that it should be readily discernible and ascertainable in the exercise of reasonable care by a reasonable inspection of the said truck.'

Then follows paragraph 7 of the complaint which reads: 'That the defendant negligently failed to notify or inform said LaVergne of the said defective and dangerous condition of the said truck, and failed to give any notice or warning thereof. That at all times herein mentioned the said LaVergne was wholly ignorant and unaware of the said defective and dangerous condition of the said truck, and had no knowledge thereof, and the defendant at all times knew that the said LaVergne had no knowledge of the defective and dangerous condition of the said truck. That the said LaVergne in purchasing the said truck, relied upon the said representations of the defendant hereinabove referred to, and the defendant knew that said LaVergne relied thereon and knew that said LaVergne did not intend to make any further repairs on said truck Before operating the same upon the public highway; and the defendant did not believe and had no reason to believe or expect that the said LaVergne would realize, ascertain, repair or remedy the said defective condition of the said truck.'

On December 13, 1940, twenty-five days after the purchase of the truck by LaVergne, his agent and employee was operating it in the usual, ordinary, and customary manner on the streets of the city of Yakima. Appellant, Jane Bock, was at the time a passenger in the truck, upon the invitation and with the consent and permission of LaVergne. In the course of such operation, and owing to the defective and dangerous condition of the truck as described above, the left front spring broke completely through, forcing the spring down upon the front axle, thus jamming the axle and steering assembly and causing the truck to lurch suddenly to the right, out of control of the driver, against an automobile lawfully parked upon the street. In consequence of the impact, appellant was thrown violently in and about the truck and sustained severe injuries. Prior to the time of the collision, neither the driver of the truck nor appellant was aware of its defective and dangerous condition.

Epitomizing the factual content of the complaint as set forth above at length, we reproduce the essential elements as they appear therein in their natural order and relation: Respondent is a dealer engaged in the business of repairing, reconditioning and selling secondhand automobiles. It owned a secondhand truck which was in a highly defective and dangerous condition, unfit for use upon the public highways. The particular defect, a cracked and broken spring, was of such character as likely would cause the truck to collapse if it should be used in a normal manner on the highway. The defect was ascertainable by the dealer, however, by the exercise of ordinary care in making a reasonable inspection of the vehicle. The dealer attempted to recondition the truck for sale and use upon the streets and highways, but failed to remedy the defect. For the purpose of effecting a ready sale of the motor vehicle, the dealer thereafter represented to a prospective purchaser that it had been completely overhauled, was in safe condition for use, and carried a socalled 'new truck guarantee.' The purchaser was ignorant of the defect and bought the truck in reliance upon the dealer's representations. The dealer knew that the purchaser was unaware of the defective and dangerous condition of the chattel but failed to inform him of it. Within a period of twenty-five days after the sale of the truck by the dealer, it collapsed while in normal use. The collapse was the direct result of the cracked and broken spring. In consequence of the unexpected performance of the truck immediately following the collapse of the spring, a passenger in the vehicle was injured.

The passenger was not a party to the contract of purchase of the truck and there was no relationship of privity between such third person and the dealer.

The question presented by these facts is whether, under such circumstances, the third person may recover from the dealer damages for personal injuries sustained by reason of the defective condition of the truck.

As stated by counsel, this court has never expressed itself upon the question whether a secondhand dealer in motor vehicles...