Lawson v. Lee Eller Ford, Inc., 39675

• Decision Date: 09 October 1962
• Docket Number: No. 39675,39675
• Citation: 375 P.2d 913
• Parties: L. W. LAWSON, Plaintiff in Error, v. LEE ELLER FORD, INC., a corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 913

375 P.2d 913

1962 OK 208

L. W. LAWSON, Plaintiff in Error, v. LEE ELLER FORD, INC., a corporation, Defendant in Error.

No. 39675.

Supreme Court of Oklahoma.

Oct. 9, 1962.

Rehearing Denied Nov. 7, 1962.

Syllabus by the Court.

1. A used car dealer, who entrusts a used car to a prospective purchaser to test drive, owes a duty to the public to use reasonable or ordinary care in making inspections and tests for the purpose of detecting defects which would make the operation of such car a danger to the driving public; and, upon failure of his duty in this respect, a used car dealer is charged with knowledge, at the time of delivery to the prospective purchaser, of defects which were discoverable in the exercise of reasonable or ordinary care and is amenable to an action for damages resulting from such defect.

2. In considering a trial court's action in sustaining defendant's demurrer to the evidence, we consider the facts, circumstances and all reasonable inferences to be drawn therefrom in the light most favorable to plaintiff's theory of the case and unless it can be said that all reasonable men would agree that defendant was not negligent or that defendant's negligence was not the proximate cause of the injuries, the cause should be submitted to the jury, and it is reversible error for the trial court to sustain a demurrer.

Appeal from the District Court of Creek County; Kenneth Hughes, Judge.

Action against a used car dealer for damages allegedly resulting from the operation of a defective automobile entrusted to a prospective purchaser. The trial court sustained a demurrer to the evidence and plaintiff appeals from the order overruling his motion for a new trial. Reversed and remanded.

Hudson, Hudson, Wheaton & Kyle, Tulsa, Maurice E. Lampton, Sapulpa, C. E. Mitchell, Pawnee, for plaintiff in error.

Covington & Gibbon, Tulsa, for defendant in error.

IRWIN, Justice.

Lee Eller Ford, Inc., owned and had for sale a 1957 Chevrolet automobile and entrusted the same to Della Lee Smith, a prospective purchaser. While Della Lee Smith was test driving the automobile she collided with a car being driven by plaintiff.

Plaintiff brought an action against Lee Eller Ford, Inc., and Della Lee Smith for damages resulting from the accident. The alleged negligence of Lee Eller Ford, Inc., was that it had entrusted to Della Lee Smith an automobile to test drive without first having ascertained that it was in a safe operating condition and that it knew, or in the exercise of ordinary care, should have known that the automobile was in such a defective condition that its operation upon the highway constituted a danger to persons using the highway.

The trial court sustained the demurrer of Lee Eller Ford, Inc., to plaintiff's evidence. Thereafter, an agreed judgment was entered in favor of plaintiff against Della Lee Smith. Plaintiff's motion for a new trial against Lee Eller Ford, Inc., was denied and he has perfected this appeal.

FACTS

Della Lee Smith testified that defendant's delivered the 1957 Chevrolet automobile to her in Supulpa to test drive; that while she was driving the car to Sand Springs she noticed the automobile abruptly pulled to the left at a speed of sixty miles an hour; that at a lesser speed the pull to the left was not so abrupt; that a Mr. Edwards and a Mr. White checked the car for her while she was in Sand Springs; that the accident happened on the highway back to Sapulpa; that when the accident happened, the car had shifted abruptly to the left.

Mr. Edwards, a sales manager for an automobile company testified that he examined the car prior to the accident and that it had a bent 'A' frame on the right side; that the bent 'A' frame could greatly affect the steering.

Mr. White, a service manager for an automobile company, testified that he examined the automobile at the request of Della Lee Smith; that it had a bent 'A' frame; that the 'a' frame was visible without moving anything or taking anything off the car; that the bent 'a' frame would affect the alignment of the wheel and the alignment of the wheel would affect the steering of the automobile; and that the alignment was distorted in a way it would pull to the left.

Plaintiff testified that he was driving to the right of the center line of the highway and saw the Chevrolet approaching from the opposite direction and noticed the car cross the center line 'quite abrupt'.

The evidence discloses that the impact or accident occurred approximately four feet across the center line of the highway and in the lane in which plaintiff was driving.

CONCLUSIONS

In Hembree v. Southard (Okl.), 339 P.2d 771, we held:

'A used car dealer, though not an insurer of the safety of the vehicles sold by him, must, to avoid liability for damages for personal injuries sustained by a prospective buyer, arising out of the prospective buyer's authorized use of a used car with a defective front wheel brake, unknown to the prospective purchaser, but represented by the dealer to be in good running condition at the time of delivery, exercise reasonable or ordinary care in making inspections and tests to discover defects which would make the used car dangerous to those who may use it or come in contact with it; and, upon failure of his duty in this respect, the used car dealer is charged with knowledge, at the time of delivery, of defects, which were...