Bogart v. Cohen-Anderson Co.

• Decision Date: 30 January 1940
• Citation: 164 Or. 233,98 P.2d 720
• Parties: BOGART <I>v.</I> COHEN-ANDERSON MOTOR CO., INC.
• Court: Oregon Supreme Court

164 Or. 233

98 P.2d 720

BOGART

v. COHEN-ANDERSON MOTOR CO., INC.

Supreme Court of Oregon.

Argued January 10, 1940.

Affirmed January 30, 1940.

Rehearing denied April 16, 1940.

Automobiles — Prospective purchaser

1. There was no relationship of principal and agent or master and servant between automobile dealer and prospective automobile purchaser, to whom dealer's salesman delivered automobile to be tested, but "gratuitous bailment" for bailor's and bailee's mutual benefit was created.

Automobiles — Prospective purchaser

2. An automobile dealer's duties and obligations to wife of prospective purchaser of automobile, delivered to husband by dealer's salesman for testing, in course of which accident wherein she was injured while riding therein occurred, are created by operation of law, not contract.

Automobiles — Negligence

3. Generally, automobile dealer is not liable to person injured because of negligent operation of automobile by prospective purchaser thereof.

Evidence — Automobiles — Brakes

4. It is common knowledge that automobile with defective brakes is dangerous instrumentality, in view of its power, weight, and speed.

Automobiles

5. An automobile dealer is not insurer against defective condition of automobile, put into prospective purchaser's hands by such dealer, but must use ordinary care to see that it is in reasonably safe condition to use on public highways.

Automobiles — Negligence

6. An automobile dealer's failure to see that automobile which he puts into prospective purchaser's hand is in reasonably safe condition to use on public highways renders dealer liable for injuries to third persons as proximate result of such negligence.

Automobiles — Defective brakes

7. In action against automobile dealer for injuries to passenger in automobile, driven by prospective purchaser thereof, as alleged result of defective brakes, there must be substantial evidence that brakes were defective, that defective condition thereof was proximate cause of injuries, and that defendant knew or by exercising reasonable care should have known that brakes were defective when automobile was delivered to driver, for plaintiff to establish prima facie case sufficient to go to jury.

Trial — Prima facie case

8. In determining whether plaintiff established prima facie case sufficient to go to jury, evidence and all reasonable inferences therefrom must be considered in light most favorable to plaintiff.

Trial — Evidence

9. Where different reasonable deductions can be drawn from evidence, question is one for exclusive determination by jury.

Automobiles — Defective brakes

10. In action against automobile dealer for injuries to wife of prospective purchaser of automobile, delivered to him by defendant's salesman for testing, as result of accident, alleged to have been caused by defective brakes, while husband was driving automobile with plaintiff as passenger, evidence held sufficient to take to jury questions whether brakes were defective and such condition proximately caused accident.

Automobiles — Defective brakes

11. In action against automobile dealer for injuries to wife of prospective purchaser of automobile in accident caused by defective brakes while husband was driving automobile with plaintiff as passenger, evidence held insufficient to take to jury question whether defendant knew or should have known that brakes were in dangerous and defective condition.

                  Liability of seller of defective or unsafe automobile for
                injury or damage caused thereby, note, 99 A.L.R. 240, See, also
                5 Am. Jur. 690
                  42 C.J., Motor Vehicles, § 873
                

Department 2.

Appeal from Circuit Court, Multnomah County.

JACOB KANZLER, Judge.

Action by Etta Bogart against Cohen-Anderson Motor Company, Incorporated, to recover damages for personal injuries sustained in an automobile accident. Judgment for defendant, and plaintiff appeals.

AFFIRMED. REHEARING DENIED.

William P. Lord, of Portland (T. Walter Gillard and Claire Wallace, both of Portland, on the brief), for appellant.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondent.

BELT, J.

This is an action to recover damages for personal injuries resulting from an automobile accident alleged to have been caused by defective brakes. A verdict was directed for defendant, and from the judgment entered thereon, the plaintiff appeals.

Cohen-Anderson Motor Co. is a corporation engaged in business in the city of Portland of selling new and used automobiles. On October 23, 1937, J.H. Medler, a salesman for the defendant company, delivered a used Terraplane coupe to one W.E. Bogart, the husband of plaintiff, in order that he might test it out. Mr. Bogart was a prospective purchaser and was experienced in driving automobiles. It was understood by the defendant that plaintiff would accompany her husband on the demonstration trip.

Bogart and his wife left Portland in the car on Saturday afternoon en route to one of the coast beaches. No representative of the defendant accompanied them. When Bogart had driven the car about fifty miles from Portland and was approximately one and a half miles west of Sheridan, the accident occurred in which plaintiff was injured.

It is the contention of plaintiff that the proximate cause of the accident was the defective condition of the brakes. The defendant company denies that the brakes were defective, and alleges affirmatively that whatever injuries plaintiff sustained were the result of the careless and negligent manner in which her husband operated the car. It is also urged by defendant that, assuming the brakes were defective, there is no evidence that defendant knew or ought to have known that they were in a dangerous condition.

1. At the threshold of the case it is important to determine the status and relationship of the parties, as by so doing the legal duties and obligations of the defendant automobile dealer may be stated. It is clear that there is no relationship of principal and agent or master and servant involved. It is a gratuitous bailment wherein the bailor and bailee are mutually benefited. Undoubtedly the automobile dealer considered that Bogart was in the market for a car and was a good prospect or he would not, in the ordinary course of business, have turned the car over to him for trial. It was an opportunity afforded the bailor which might eventually result in a profit. It is hardly in the same category as the case where A, as a matter of accommodation, loans his car to B for the exclusive benefit and pleasure of the latter. 3 R.C.L. 80. What is said, therefore, relative to the duties and obligations of the bailor, must be read in the light of the particular factual situation of the instant case.

2, 3. It is true there is no contractual relationship or privity of interest between the defendant and the plaintiff. The defendant's duties and obligations to the plaintiff, who stands in the same shoes as her husband, however, are created by operation of law and not by contract. The general rule is well established that an automobile dealer is not liable to a third person for the negligent operation of a car by a prospective purchaser. 4 Berry on "Automobiles" (7th Ed.) 440.

4-6. It is common knowledge that an automobile with defective brakes is, in view of its power, weight and speed, a dangerous instrumentality. Indeed, the legislature recognized such fact by requiring that "every motor vehicle * * * when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle * * *" (§ 55-2613, Oregon Code 1935 Supp.) — the standard of adequacy being in subdivision (e) of the above section. An automobile dealer is not an insurer against the defective condition of a car put into the hands of a prospective purchaser, but he must use ordinary care to see that it is in a reasonably safe condition to use on the public highways. The failure to comply with this legal duty or obligation makes the bailor liable to third persons if the injury is the proximate result of such negligence. Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333; Collette v. Page, 44 R.I. 26, 114 Atl. 136, 18 A.L.R. 74; Eklof v. Waterston, 132 Or. 479, 285 P. 201, 68 A.L.R. 1002; 8 C.J.S. 318; Vaughn v. Millington Motor Co., 160 Tenn. 197, 22 S.W. (2d) 226.

7. In order to establish a prima facie case — i.e. one sufficient to go to the jury, there must be some substantial evidence tending to show: (1) That the brakes were defective; (2) That such defective condition of the brakes was the proximate cause of the injury; (3) That the defendant knew or by the exercise of reasonable care ought to have known that the brakes were defective at the time the automobile was delivered to the plaintiff. If there is no substantial evidence tending to establish any one of the above essential elements, the cause is not entitled to be submitted...