Johnson v. Ernest G. Beaudry Motor Co., Civ. A. No. 5718.

• Decision Date: 22 December 1958
• Docket Number: Civ. A. No. 5718.
• Citation: 170 F. Supp. 164
• Parties: Mrs. Janie A. JOHNSON and James A. Johnson v. ERNEST G. BEAUDRY MOTOR CO.
• Court: U.S. District Court — Northern District of Georgia

170 F. Supp. 164

Mrs. Janie A. JOHNSON and James A. Johnson v. ERNEST G. BEAUDRY MOTOR CO.

Civ. A. No. 5718.

United States District Court N. D. Georgia, Atlanta Division.

December 22, 1958.

COPYRIGHT MATERIAL OMITTED

Calhoun & Calhoun, Atlanta, Ga., for plaintiffs.

Moise, Post & Gardner, Atlanta, Ga., for defendant.

SLOAN, District Judge.

The plaintiffs allege that the defendant sold to James A. Johnson a used motor vehicle and agreed that it would, for $600 and one-half of the cost of repairs to be paid by plaintiff, thoroughly inspect and put it in safe condition for his wife to drive.

Plaintiffs contend that the defendant delivered the vehicle to plaintiffs in an unsafe condition, with a defective tire which caused the vehicle to overturn and burn, injuring Mrs. Janie A. Johnson.

Mrs. Johnson sues to recover for her injuries. Mr. Johnson sues for expenses, loss of services and loss of consortium.

Defendant admits that it sold the vehicle to Johnson; denies that it made the agreement contended with respect to the general repair of the vehicle and denies that it is liable to plaintiffs in any way; denies that there was a defective tire on the vehicle, but avers that the plaintiffs assumed the risk of any defective tire that might have been on said vehicle.

The cause came on to be tried to the Court without a jury on December 1, 1958 and plaintiffs introduced evidence, the defendant introduced evidence and arguments of counsel were heard and now the Court, giving consideration to the evidence, makes the following

Findings of Fact

At the time of the filing of this complaint the plaintiffs were citizens and residents of the State of North Carolina while the defendant was and is a Georgia corporation organized under the laws of Georgia with its principal office and place of doing business in Fulton County, Georgia.

Just prior to July 28, 1954, plaintiffs had been visiting Mr. Johnson's mother in the City of Atlanta, Georgia, intending to return to their home in Charlotte on Sunday, August 1st, and in view of the fact that Mr. Johnson had use for his automobile in his business, they decided to buy an additional automobile for Mrs. Johnson's use and that she would drive it back to Charlotte.

On Wednesday, July 28, 1954, Mr. & Mrs. Johnson went to the used car lot of the defendant in the City of Atlanta, Georgia and talked first to a Mr. Daniels, the assistant sales manager of the defendant, and Mr. Johnson told Mr. Daniels that he wished to purchase a car for his wife to drive and that he wanted a safe car that was in good condition. Mr. Daniels then called a salesman, Mr. L. H. Pruden, who showed Mr. & Mrs. Johnson a 1950 model Ford Station Wagon, Motor No. BOAT-158924. Mr. Daniels told the plaintiffs that the station wagon had belonged to a real estate dealer and that they knew the car and that it was in good shape, and that it was a good, clean car.

The station wagon here involved formerly belonged to Wall Realty Company who had purchased it as a used vehicle and had owned it for some time. On July 31, 1953 Wall Realty Company purchased two Fisk tires from Gordy Tire Company and had them mounted on the station wagon, and since Wall usually put the best tires on the front wheels, he feels sure that these tires were mounted on the front wheels of the station wagon and were not thereafter moved or changed. These were white side wall tires.

In April, 1954 W. O. Wall obtained the station wagon from Wall Realty Company and used it up until July 24, 1954 when he left it with Ernest G. Beaudry Motor Company and tried out a new Ford automobile. W. O. Wall agreed with the defendant company to trade them the station wagon on a new Ford automobile and they allowed him $904 on the purchase price of the new Ford. Wall testified that he never took the Fisk tires off the station wagon after they were put on. The defendant Beaudry placed the station wagon on its used car lot and placed a sales price of $600 on it, but never washed it, repaired it or inspected it from the time it was received until it was sold to Johnson.

Mrs. Johnson asked the salesman twice about the tires, and each time the salesman told her that the tires were good.

Mr. & Mrs. Johnson then tried out the automobile and drove it from the Beaudry used car lot a distance of about six miles to the home of Mr. Johnson's mother and while trying out the car, Mr. Johnson discovered a whine in the differential. He then left his wife at the home of his mother and returned the car to the Beaudry used car lot and told them of the noise that he had discovered in the rear end, or differential, and they assured Mr. Johnson that they would fix and remedy it. Mr. Johnson then, relying on the representations that had been made to him and to his wife, purchased the automobile, paying therefor the sum of $600. Mr. Johnson returned on Thursday to get the station wagon and found that they had been unable to repair it at the used car lot and would have to send it to the main repair shop up town. He then left the car there, returning for it on Friday and the defect of the noise had been corrected. He then accepted delivery of the car and carried it to his mother's home.

At the time they were negotiating for the purchase of the station wagon both Mr. & Mrs. Johnson looked the vehicle over and looked at the tires and they appeared to be in good condition, though Mr. Johnson did notice that the vehicle was equipped with white side wall tires and that the two front tires on the vehicle had been turned with the white side walls inside leaving the black side walls outside, but he attached no importance to this fact at that time.

The station wagon was not driven again until Sunday morning when the plaintiffs started to return to Charlotte, North Carolina. Mr. Johnson was driving his automobile and was in front and Mrs. Johnson was driving the newly purchased station wagon and was following some distance behind Mr. Johnson. Riding in the station wagon with Mrs. Johnson were her young son and her stepsister. They were driving along U. S. Highway 78 in a northeasterly direction on the road leading from Atlanta to Monroe, Georgia by way of Stone Mountain and Mrs. Johnson had reached a point on said highway near Logansville, Georgia, where the highway was straight and level, when she overtook two trucks, the one nearest Mrs. Johnson being a Mack truck owned and driven by George C. Kinard but leased to Phoenix Supply Company. Mrs. Johnson speeded up to pass these trucks, and after having so increased her speed, was driving at a rate of approximately 50 miles per hour and had passed the Phoenix truck and had almost passed the truck in front, with the rear wheels of the station wagon being approximately even with the front wheels of the second truck, when the left front tire of the station wagon blew out, causing the station wagon to swerve sharply to the left, the left wheels going off the pavement and onto the shoulder of the road and after traveling along the shoulder of the road a distance of some 20 or 30 feet the station wagon swerved sharply to the right, crossed the highway in front of the truck, went down an embankment and turned over.

Mr. George C. Kinard, the driver of the Phoenix truck, saw the accident, stopped his truck and went immediately to the scene. Mrs. Johnson was dazed and partially unconscious and her stepsister was cut and...