Mulder v. Casho

• Decision Date: 11 August 1964
• Citation: 61 Cal.2d 633,39 Cal.Rptr. 705,394 P.2d 545
• Court: California Supreme Court
• Parties: , 394 P.2d 545 Honnegina MULDER, Plaintiff and Respondent, v. Andre CASMO, Defendant and Appellant. S. F. 21695.

Page 705

39 Cal.Rptr. 705

61 Cal.2d 633, 394 P.2d 545

Honnegina MULDER, Plaintiff and Respondent, v. Andre CASMO, Defendant and Appellant.

S. F. 21695.

Supreme Court of California, In Bank.

Aug. 11, 1964.

Rehearing Denied Sept. 10, 1964.

Weinmann, Rode, Burnhill & Moffitt, Alameda, and Cyril Viadro, San Francisco, for defendant and appellant.

Herron & Winn and Manoucher Farzan, San Francisco, for plaintiff and respondent.

GIBSON, Chief Justice.

Defendant, a used car dealer, appeals from an adverse judgment in an action to recover damages for personal injuries received by plaintiff while driving a 1948 automobile she had purchased from defendant.

Plaintiff and defendant executed an instrument prepared by him on a printed form entitled 'Auto Sales Order.' The instrument, which stated that the purchase price of the car was $125, contained a provision, commonly called a 'merger' clause, reading, 'Entire agreement is expressed herein in writing. No other terms or conditions, oral or written, will be recognized.' The instrument also stated, 'All used cars * * * sold 'AS IS' and without guarantee as to condition, mileage, year or model, unless otherwise specified in writing.'

Several days later, as plaintiff was driving down a steep hill, the car lost all braking power, gained momentum, and attained a rapid rate of speed. Plaintiff was injured when her car collided with two other vehicles several blocks away.

Plaintiff's testimony may be summarized as follows: When defendant showed her the car prior to the execution of the sales order, he said that the car would be put into 'good shape' and that he would put better tires on it. At plaintiff's request defendant went with her to a gas station to have the car checked by a mechanic, who, after driving it, said that it was 'pretty loose' and that the brakes needed adjusting. Defendant said he would make the necessary adjustments, and, after he and plaintiff returned to the used car lot and executed the instrument, he said the car would be ready in two days. When plaintiff went back for the car, she asked if it was necessary to take the car to a garage for a 'checkup,' and defendant replied that she did not 'have to worry about the car for the next two months.' She noticed the tires had not been changed, and he told her he would change them if she would bring the car back in a few days. She did so, and he replaced the tires.

An expert called by plaintiff testified as follows: The foot brakes were defective and failed to work. The defects included an internal leak of brake fluid in the master cylinder, and where such leaks are present the brake pedal will go down to the floorboard if pressure is kept on the pedal. There were also leaks in both of the front wheel cylinders, the front brake linings were 'badly worn,' and the brake drums were scored. When the foot brakes failed, plaintiff applied the hand brakes, and this generated torque pressure causing two welds to break and the rear axle housing to rotate. The rotation severed the hand btake cable. The hand brakes applied their braking power entirely on the rear wheels, whereas the foot brakes, had they functioned, would have distributed their braking power over all four wheels, exerting 65 per cent of the pressure on the front wheels.

Defendant's testimony may be summarized as follows: He told plaintiff before and during the signing of the instrument that he would replace the tires but did not make any of the other statements attributed to him by plaintiff, and the mechanic did not say anything to him concerning the brakes. ¹ He bought the car about two and a half months before he sold it to plaintiff, and at that time he depressed the pedal operating the foot brakes and applied presure for about a minute in order to determine if there was leakage of brake fluid in the master cylinder. He also drove the car around the block at a speed of 25 miles an hour, depressing the brake pedal 'hard' once and 'gently' five times. On this occasion and during several subsequent demonstrations of the car to prospective customers, the brakes operated properly. He did not inspect the brake fluid level, the master cylinder, the wheel cylinders, or the brake linings, and he did no work on the brakes. He did not raise the car on a rack or look underneath, and although he found no signs of leakage on examining the side of the wheels where the hubcaps were located, he did not look at the other side of the wheels or tires.

In response to interrogatories submitting special issues of fact, the jury found that defendant orally agreed to put the automobile into a safe mechanical condition equipped with adequate and proper brakes and that defendant...