Gaidry Motors v. Brannon

• Decision Date: 30 October 1953
• Parties: GAIDRY MOTORS, Inc. v. BRANNON.
• Court: United States State Supreme Court — District of Kentucky

Page 627

268 S.W.2d 627

GAIDRY MOTORS, Inc. v. BRANNON.

Court of Appeals of Kentucky.

Oct. 30, 1953.

As Modified on Denial of Rehearing May 28, 1954.

Stoll, Keenon & Park, Lexington, for appellant.

Alfred W. Minish, Carrollton, Lawrence C. Jenkins, Lexington, for appellee.

WADDILL, Commissioner.

Gaidry Motors, Incorporated, appeals from a judgment for $11,489.95 recovered against it on the second trial of this case by Albert Brannon for injuries he received when he was struck by an automobile driven by William Hensley. Hensley had purchased a used car from appellant and had driven it only a few blocks when the accident occurred. The jury, under the instructions, found the cause of the accident to have been the defective condition of the brakes on the car operated by Hensley. This suit was brought against Gaidry Motors on the theory that it sold William Hensley a defective secondhand car without notifying Hensley of the defect.

There was a previous trial of the case on which occasion the plaintiff was unable to prove that defendant, Gaidry Motors, had knowledge of the defective condition of the brakes, and the outcome of this trial was a directed verdict and judgment for Gaidry Motors. After the first trial of the case, appellee moved for a new trial alleging error and also that he had discovered new evidence. The new evidence was the testimony of a witness, Thomas Reaves, who had sold the car to Gaidry Motors, that he had informed it of the defect in the brakes. The new trial was granted and appellee won a verdict.

Appellant urges as a ground for reversal that appellee failed to show proper diligence in searching for the witness, and was unable to present a good excuse for such failure.

The record reveals that Reaves' name appeared on the automobile bill of sale, along with his address. So far as is shown, the only effort made by appellee to locate Reaves was to inquire at that address. No one present knew of Reaves' whereabouts. It further appears that Reaves was subpoenaed by Gaidry Motors as a witness on its behalf, and the appellant claims that Reaves was present in the courtroom at the first trial of the case and that his name was called by the sheriff, though he was not called as a witness, because the court gave a peremptory instruction prior to the time he would have been used.

On motion for a new trial, the lower court is not confined to the errors specified in the motion and grounds therefor; nor is the Court of Appeals confined, in reviewing a lower court's ruling, to the reason given by it for granting or refusing a new trial but is authorized to approve the granting of a new trial, if, for any reason appearing in the record, a new trial should have been granted. Louisville & Interurban R. Co. v. Pulliam's Adm'x, 259 Ky. 82, 82 S.W.2d 191.

Thus, though appellee may not have been entitled to a new trial because of his discovery of a new witness after the trial due to a lack of diligence, we may find that he was entitled to a new trial if the court erred in directing a verdict for Gaidry Motors.

In his motion and grounds for a new trial, Brannon asserted as his second ground that the decision of the court in peremptorily instructing the jury to find for appellant was contrary to law.

On the first trial the court gave a peremptory instruction in favor of Gaidry Motors apparently because there had been no showing that Gaidry had actual knowledge of the defective condition of the brakes.

A majority of jurisdictions which have ruled on the subject have held that a dealer who undertakes to recondition used cars before resale owes to the public a duty to use reasonable care to discover defects, and either to repair or to warn the buyer of the existence of the defect. McLeod v. Holt Motor Co., 208 Minn. 473, 294 N.W. 479; Egan Chevrolet Co. v. Bruner, 8 Cir., 102 F.2d 373, 122 A.L.R. 987. It appears that most states have been reluctant to extend liability to the case of the dealer who makes no representations as to the condition of the automobiles he sells.

Although not per se a dangerous instrumentality, an automobile may become so when used in a condition likely to cause injury. Vaughn v. Millington Motor Co., 160 Tenn. 197, 22 S.W.2d 226. And see Owensboro Undertaking & Livery Ass'n v. Henderson, 273 Ky. 112, 115 S.W.2d 563.

It is common knowledge that old cars are more likely to be subject to mechanical defects than are new ones. The turnover in ownership of used cars is fairly rapid, and the majority of these cars are sold through used car dealers. The used car dealer is in a better position, by reason of his opportunity, than his average customer, to discover what defects might exist in any particular car to make it a menace to the public. We are of the opinion it is not too harsh a rule to require these dealers to use reasonable care in inspecting used cars before resale to discover these defects, which the customer often cannot discover until too late.

Tort liability is not based upon representations or warranties. It is based on a duty imposed by the law upon one who may foresee that his actions or failure to act may result in an injury to others. Meeks Motor Freight v. Ham's Adm'r, 302 Ky. 71, 193 S.W.2d 745. See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696.

We are not alone in adopting this rule. In Standard Oil Co. v. Leaverton, 239 Mo.App. 284, 192 S.W.2d 681, the Missouri Court said that the fact that the persons concerned all knew that the car was a used car and that it was not offered as one which was reconditioned, would not relieve the dealer of his duty to his customers and third parties. The court in that case made it clear that although there had been no sale, since the accident occurred while a prospective purchaser was trying out the used automobile, the liability was not based on any warranty or contract of bailment, but upon the obligation imposed by the law upon every man to refrain from acts of omission or commission which he may reasonably expect would result in injury to third persons. We adopt this view as the better rule. See Note: 12 Mo.L.Rev. 57; Thrash v. U-Drive-It Co. and Spot Motor Co., 93 Ohio App. 388, 113 N.E.2d 650.

In view of the rule we are adopting, we conclude the new trial was properly granted.

Appellant also urges as grounds for reversal that there was not sufficient evidence that the negligence of Gaidry Motors was the proximate cause of the accident to justify a submission of the case to the jury.

Hensley, the driver of the used car, testified that he had driven the car only 14 city blocks from the appellant's used car lot when at a speed of about 25 miles per hour he applied his brakes on entering an intersection and that the brakes immediately grabbed or locked, causing the car to skid onto the sidewalk, where it pinned Albert Brannon against a wall crushing his left leg so that it had to be amputated. Other witnesses to the accident supported Hensley's testimony. Two experienced automobile mechanics who examined the car after the accident testified that there was grease on the brake drum of the right rear wheel, that grease was leaking from the grease cell and that it could be seen on the outside of the wheel. Both were of the opinion that the condition had existed for a month or longer. They testified that grease on a brake drum will cause the brakes to grab and sometimes cause a car to skid. Bystanders testified that the car skidded, and that the rear end went sideways onto the sidewalk. From this synopsis it may be seen that there was ample evidence to submit the case to the jury on the question of proximate cause.

Appellant also urges for reversal that appellee's petition pleads a cause of action alternatively as to parties and as a result, states no cause of action. This Court has held that a party waives objection to such defects unless he demurs to the petition or makes a motion to elect before he files his answer. Appellant waived his objection by failing to follow either course. Louisville Gas & Electric Co. v. Nall, 178 Ky. 33, 198 S.W. 745; Louisville & N. R. Co. v. Kimbrough, 115 Ky. 512, 74 S.W. 229.

Judgment affirmed.

SIMS, C. J., and COMBS and DUNCAN, JJ., dissenting.

COMBS, Justice.

I have no particular quarrel about the result reached in this case. I think the case might have been affirmed without doing much violence to the law or to the...