Brewer v. Reliable Automotive Co.

• Decision Date: 15 February 1966
• Citation: 240 Cal.App.2d 173,49 Cal.Rptr. 498
• Court: California Court of Appeals Court of Appeals
• Parties: John Robert BREWER, Cross-Complainant and Appellant, v. RELIABLE AUTOMOTIVE COMPANY, Cross-defendant and Respondent. Civ. 513.

Page 498

49 Cal.Rptr. 498

240 Cal.App.2d 173

John Robert BREWER, Cross-Complainant and Appellant, v. RELIABLE AUTOMOTIVE COMPANY, Cross-defendant and Respondent.

Civ. 513.

District Court of Appeal, Fifth District, California.

Feb. 15, 1966.

Raymond & Keon and Peter E. Livanos, Jr., Bakersfield, for appellant.

McCormick, Barstow, Sheppard, Coyle & Best and Lawrence E. Wayte, and Hollis G. Best, Fresno, for respondent.

RALPH M. BROWN, Justice.

This is an appeal from a summary judgment entered on motion of the above named respondent. The case involves a March 1963 accident which occurred between a Mack truck owned by the appellant and a road grader owned by the original plaintiff, Asbury Transportation Company. Appellant's truck struck the road grader which accident was allegedly caused by an aluminum disk wheel on the Mack truck which collapsed.

The Asbury Transportation Company sued the appellant, who cross-complained against many cross-defendants, including respondent. There are allegations in the cross-complaint that the respondent sold the Mack truck to appellant and orally warranted the truck to be free from defects, which warranties were breached. A second cause of action repleads all the allegations of the first, except the warranties are alleged to be implied rather than express. A third cause of action was based on negligence in manufacture, assembly, fabrication and sale. The cross-complaint did not involve damages for personal injury, but only substantial property damage. The respondent subsequently moved for a summary mary judgment in addition to filing a demurrer.

A sole moving affidavit was filed in this matter by Sweet & Ashjian Automotive, Inc., the successor corporation to respondent. The pertinent statements in the affidavit are: In 1958 the respondent sold the Mack truck in question to one Ezra Grenz; respondent did not sell the Mack truck or any of its wheels to appellant; the truck was not manufactured by respondent; the wheels on said truck when sold by respondent to Grenz were not provided by respondent, but by Mack, the manufacturer of the truck; and that neither the respondent nor its successor manufactured or assembled or fabricated the truck or any of the truck wheels, nor had the respondent ever engaged in the manufacture of any truck or truck wheels.

The appellant failed to file any counter-affidavits and thus admits the truth of the respondent's affidavit. '* * * the absence of such counteraffidavits does not relieve the moving party from the burden of establishing the evidentiary facts of every element necessary to entitle him to the judgment,' as said in American Society of Composers, Authors & Publishers v. Superior Court, 207 Cal.App.2d 676, 687, 24 Cal.Rptr. 772, 778; and in House v. Lala, 180 Cal.App.2d 412, 416, 4 Cal.Rptr. 366.

In Dorsey v. City of Los Angeles, 132 Cal.App.2d 716, at page 719, 282 P.2d 997, it is said that proceedings under section 437c of the Code of Civil Procedure are not to be used to test the sufficiency of the pleadings. The real test for support of the motion for summary judgment is whether by affidavits there is a showing that no triable issue of fact is disclosed. If the court finds that there is an issue to be tried, a summary judgment is not proper. (Walsh v. Walsh, 18 Cal.2d 439, 116 P.2d 62; Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 122 P.2d 264.) It is further true that one material triable issue requires reversal of a summary judgment. (Miller & Lux, Inc. v. Bank of America, 212 Cal.App.2d 719, 724, 28 Cal.Rptr. 401.)

Section 437c of the Code of Civil Procedure sets down the rules and procedure to be followed in moving for summary judgment. The moving party must file affidavits in support of that motion, and those affidavits must contain facts sufficient to entitle it to judgment. These rules are restated and defined in two recent Supreme Court cases, Towne Development Co. v. Lee, 63 A.C. 143, 45 Cal.Rptr. 316, 403 P.2d 724, and Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 42 Cal.Rptr. 449, 398 P.2d 785. In Stationers, the Court, at page 417, 42 Cal.Rptr. at page 452, 398 P.2d at page 788 states:

'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.'

The appellant argues and maintains that there is a theory of strict liability in tort and therefore there is a triable issue as to the proximate cause of the damage to the appellant as set forth in his cross-complaint.

In the landmark case of Vandermark v. Ford Motor Co., 61 Cal.2d 256, at page 263, 37 Cal.Rptr. 896, at page 900, 391 P.2d 168 at page 172, the court held that the retailer is subject to strict liability in tort for personal injuries because 'it is in the business of selling automobiles, one of which proved to be defective and caused injury to human beings.'

In Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, at page 62, 27 Cal.Rptr. 697...