Sperling v. Hatch
| Citation | 10 Cal.App.3d 54,88 Cal.Rptr. 704 |
| Parties | Margaret L. SPERLING and William F. Sperling, Plaintiffs and Appellants, v. Edwin C. HATCH, Defendant and Respondent. Civ. 9733. |
| Decision Date | 29 July 1970 |
| Court | California Court of Appeals |
Margaret L. Sperling and William F. Sperling sustained personal injuries in a single car accident which occurred on Los Coches Road, near Lakeside, California, on October 21, 1966. They brought suit against Edwin C. Hatch, doing business as Hatch Chevrolet, from whom the car had been purchased three months before, claiming the accident was caused by defective brakes. Trial was commenced before a jury; at the close of the plaintiffs' case, the trial court granted defendant's motion for a nonsuit on the ground the evidence established, as a matter of law, the affirmative defense of an assumption of the risk as to both plaintiffs. The Sperlings have appealed from the judgment entered on the nonsuit; they question the propriety of the nonsuit and maintain the issue of assumption of the risk should have been submitted to the jury.
At the outset, we note a trial court may grant a motion for nonsuit:
'* * * when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.' (Card v. Boms, 210 Cal. 200, 202, 291 P. 190, 191.) (See also Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574.)
While a judgment of nonsuit is an adjudication upon the merits, it must be viewed differently from the ordinary appeal where the appellate court is required to indulge every reasonable intendment in favor of sustaining the trial court. To the contrary, when reviewing a judgment based upon a nonsuit, the appellate court:
'* * * must view the evidence in the light most favorable to the appellant, must disregard all inconsistencies and draw only inferences from the evidence which can reasonably be drawn which are favorable to the appellant.' (Van Zyl v. Spiegelberg, 2 Cal.App.3d 367, 372, 82 Cal.Rptr. 689, 691.) (See also Golceff v. Sugarman, 36 Cal.2d 152, 153, 222 P.2d 665.)
To comply with these rules, we must view the evidence bearing on the issue of assumption of the risk in the light most favorable to plaintiffs. No point would be served in detailing the evidence of Mrs. Sperling's trials and tribulations with the defective brakes on the car. (During this period of time, the Sperlings were separated and Mrs. Sperling had possession of the car.) It is sufficient to point out: The Sperlings were assured when they purchased the 1963 Chevrolet automobile from respondent on July 18, 1966, the car had had a 'complete brake job.' Beginning about two weeks later and continuing through October 21, 1966, the date of the accident, Mrs. Sperling consistently and continuously had difficulty with the brakes on the car. She returned it to respondent's place of business on numerous occasions, complaining about the brakes and requesting respondent to fix them. Sometimes the brakes seemed to work for a day or so after the car was returned to her, but the trouble reoccurred. Although the car had a 'complete brake job' before its sale, respondent performed a major brake adjustment and overhaul of the master cylinder. The car had been designed and manufactured for 'self-adjusting brakes,' but it was not so equipped, and respondent finally installed self-adjusting brake kits on the wheels. At least three times during the month of October, Mrs. Sperling returned the car to respondent for repairs to the brakes, stating the right front wheel 'grabbed' and the car pulled to the right when the brakes were applied. On the morning of the accident, she again returned the car to respondent, stating 'either fix it once and for all or take the car back.' She was told to leave the car and they would look it over. When she came back to pick up the car and told respondent's employee the brakes 'still didn't feel right,' she was told the problem was 'all in her head.' She asked respondent's employee to take the car back and was told to 'bring it back tomorrow and we'll look at it'.
Mr. and Mrs. Sperling met that day during the lunch hour, and Mrs. Sperling told her husband about the problem she was having with the brakes on the car. Mr. Sperling drove the car and tested the brakes. He noticed when the brakes were applied, 'The thing would just grab and pull to the right on the right front wheel.' He warned his wife not to apply the brakes suddenly at a speed of 40 to 45 miles per hour and stated he would fix the brakes himself that weekend.
Plaintiffs again met after work the same afternoon, paid some bills, and drove toward Mr. Sperling's home in Lakeside, with Mrs. Sperling driving. It was dark and the cars on the highway had their lights on. As the car approached a curve in the road, Mrs. Sperling noticed a car traveling in the opposite direction come into her lane of traffic. She applied the brakes, and the right front wheel grabbed so she released them. Believing the car to be out of control she applied the brakes again, this time with greater force. The right front wheel again grabbed, the car went out of control, off the highway, and turned over two times. The Sperlings estimated the car's speed at 45 miles per hour; a witness to the accident estimated the speed of the car at 55 miles per hour. Both plaintiffs suffered personal injuries in the accident, but Mr. Sperling, who was ejected from the car, sustained the more serious injuries.
An expert witness in the field of brake repair examined the brake shoes from the car's right front wheel. He testified the secondary brake shoe had been charred from overheating and gave his opinion an automobile with a charred brake lining would not stop in a normal fashion.
On the issue of assumption of the risk, the testimony of Mr. Sperling on cross-examination is significant and bears repeating in some detail. He admitted he had driven the car and tested the brakes at noon on the day of the accident. He stated he had a 4-year course in automobile mechanics in school which included study on brakes. He had a similar course while in the Service which also included study and work on brakes. From the date he was discharged from the Service in 1955, he had always done his own work on his own cars including the work on brakes. In connection with brake work he stated he had done '* * * complete jobs, rebuilding master cylinders, wheel cylinders, turning drums, arcing shoes, from the ground on up, you might say.'
About his testing the car on the day of the accident, he was asked:
'Q And when you operated the car, and put on the brakes, did you notice any problem?
'A Definitely.
'Q What was the problem you noticed?
'A The thing would just grab and pull to the right on the right front wheel, and that's when I also made the statement to her, I says, 'Well, just bring it on over Saturday and I will do the brakes myself on it.'
'Q Did you--were you concerned about that condition?
'A Yes, I was.
'Q What was your concern?
'A Well, if you are going down the road and you are traveling at a pretty good pace and you have to use them brakes and the thing does that, well, you are going to lose control of it. It's going to the right.
'Q This was the concern that you felt at the time you discussed it with your wife?
'A Right.
'Q And was this concern the one that caused you to warn her to be very careful in the way she operated the car?
'A That is right.
'Q Because you were aware that if you operated that car at a, was you put it, pretty good clip, and had to put on your brakes you could lose control of the car?
'A Very true.
'Q And what do you mean by 'pretty good clip'?
'A Well, say you are going forty, forty-five, or something like that, down the highway and you have to use them in an emergency, well, you are going to apply them...
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