Thrash v. U-Drive-It Co.

• Citation: 113 N.E.2d 650,93 Ohio App. 388
• Decision Date: 28 November 1951
• Docket Number: U-DRIVE-IT
• Parties: , 51 O.O. 164 THRASH v.CO. et al.
• Court: United States Court of Appeals (Ohio)

Page 388

93 Ohio App. 388

113 N.E.2d 650, 51 O.O. 164

THRASH v. U-DRIVE-IT CO. et al.

Court of Appeals of Ohio, Summit County.

Nov. 28, 1951.

Syllabus by the Court.

1. A retail dealer in used motor vehicles, who sells a vehicle to one for use on the public highways, owes a duty to the public to use reasonable care in examining it to discover defects which would make such vehicle a menace to those who might use it or come in contact with it. Such dealer is charged with knowledge, at the time of sale, of defects which are patent or discoverable in the exercise of ordinary care.

2. A retail dealer who sells a used motor vehicle to a person for use on the highways is not an insurer of the safety of the chattel, but such dealer may be guilty of tort if he fails to use reasonable care to ascertain whether the vehicle possessed at least the minimum essentials for safe operation.

3. In the sale of a secondhand motor vehicle for immediate use on the highways, the presence of a danger, attendant upon a known use, makes vigilance a duty. When the consequences of negligence may be reasonably foreseen, the obligation to any one, whether the user or a third person, is grounded in the law; and liability in tort may attach irrespective of contract.

4. When the owner of a used motor to a dealer in motor vehicles without representation or warranty, such owner is not liable for injuries to a purchaser is not liable for injuries to a purchaser from the dealer or to a third person who may be injured as a consequence of defects in the car, on the theory that dealers are engaged in a trade or business; and the duty to warn such dealer of a danger generally known to that trade or business does not arise, especially where it cannot reasonably be foreseen that the dealer will sell the defective car, without examination, to a buyer for use on the highway.

Robert L. Culbertson, Charles E. Pierson, Akron, and Harrison, Spangenberg & Hull, Cleveland, for appellant.

H. A. Waltz, James Olds and Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellee U-Drive-It Company.

Buckingham, Doolittle & Burroughs, Akron, for appellee Spot Motor Co.

DOYLE, Judge.

This action was commenced by Donald Thrash, a minor, through his mother and next friend, and is directed against two companies: one, the U-Drive-It Company, which is 'engaged in the business of owning and servicing motor vehicles which it rents for hire to the public,' and the other, the Spot Motor Company, which is 'engaged in the business of buying and selling new and used automobiles and trucks.' Damages for personal injury were sought, which, it was claimed, proximately resulted from the negligence of the defendants in the conduct of their business through their respective sales of a secondhand motor vehicle.

At the conclusion of the opening statement of counsel for plaintiff in the trial of the action in the Court of Common Pleas of Summit County, the court entered judgment in favor of the two defendants and against the plaintiff, for the reason that the plaintiff's petition and the statement of counsel failed to state a cause of action against either or both defendants.

The appeal to this court is from that judgment, and we are asked to reverse the action of the trial court and remand the cause for trial.

The cause of action stated in the pleading, and orally by counsel, in brief, was as follows: The U-Drive-It Company owned and operated a truck in its business, the left front wheel of which was equipped with a type of rim and lock ring not designed to fit the wheel and 'as a result of the mismatching of the lock ring and the rim * * * [the] said lock ring was loose and insecure, * * * was held in place by an inadequate bearing surface, and * * * its mounting bevel did not fit the mounting bevel of the rim, so that it was likely at any time during the normal usage of the truck to blow off under the pressure of the inflated tire, causing the tire to be released, the tube to blow out, and the truck to get out of control.'

In August, 1946, the U-Drive-It Company traded the truck to the Spot Motor Company, which thereupon advertised it for sale. Subsequently, Gotthart T. Thrash, the father of the minor plaintiff, purchased it from the Spot Motor Company upon its representation that it was 'in good operating condition.' Thrash purchased the vehicle for general hauling use in connection with his business. Later, while it was being so used 'at a lawful and proper rate of speed, said lock ring on the left front wheel suddenly and without warning blew off, and immediately thereafter the outer bead of the tire was released from the rim. By reason of the sudden release of the left front tire bead, the truck became unmanageable, so that without fault of the driver it ran off the left side of the roadway and was hurled over an embankment. At said time and place the plaintiff, Ronald Thrash, was riding (as a passenger) in the rear body of said truck, and as the truck rolled over [and] down the embankment plaintiff was crushed underneath * * *, causing him * * * serious injuries * * *.'

The following specific charges of negligence were made against the respective defendants, which negligence in each case, it was asserted, proximately caused the plaintiff's damages.

As to the defendant Spot Motor Company:

'1. In failing to inspect said truck before reselling, to determine whether its tires were properly mounted with matching rims and lock rings.

'2. In failing to warn said Gotthart T. Thrash that the left front tire was insecurely mounted and that the truck was dangerous to operate, although the defendant knew, or in the exercise of ordinary care ought to have known, of the danger and hazard of said mismatched rim and lock ring.

'3. In lulling said Gotthart T. Thrash into a false sense of security by representing to him that the trick was in good operating condition, although the defendant knew, or in the exercise of ordinary care ought to have known, that said truck was in a dangerous and hazardous condition to drive.

'4. In placing on the market and selling to a purchaser, for use upon the public highways, a truck containing a latent and inherently dangerous defect, to wit, a mismatched

As to the defendant U-Drive-It Company:

As to the defendant U-Drive-It Compant:

'1. In equipping the left front wheel of said truck with a mismatching rim and lock ring, which the defendant knew, or in the exercise of ordinary care ought to have known, made the lock ring insecure and likely to blow off.

'2. In failing to warn the Spot Motor Company of the mismatched rim and lock ring.

'3. In failing to warn Gotthart T. Thrash, the purchaser of said truck, that the rim and lock ring were mismatched and insecure, although the defendant had actual knowledge that said Gotthart T. Thrash had purchased said truck from the Spot Motor Company.

'4. In failing to install on the left front wheel of said truck a lock ring of the proper type and size before putting said truck on the market where it would come into the hands of a purchaser who would use it upon the public highways.

'5. In placing upon the market for eventual sale to the public a motor truck containing a latent and inherently dangerous defect which would be hazardous to the life and limb of any one in the vicinity of the truck while it was being operated upon the highway.'

In our consideration of the problems before us, we assume the truth of the allegations and charges made in the petition and opening statement of counsel, and consider such allegations as constituting the actual facts in the case.

At the outset, we find no cases in this state treating the same factual matter, although there are some which seem to lay the foundation of the branch of the law which we must examine.

1. In respect to the Spot Motor Company, did it owe a duty of care and vigilance to anyone other than the father of the injured boy, he being the immediate purchaser?

More than a half century ago, there arose in this county a case in which the Supreme Court of Ohio Recognized tort liability for the negligent sale of an inherently dangerous drug, regardless of privity of contract. A druggist negligently sold oil of bitter almonds instead of oil of sweet almonds to a customer for the use of his wife. After taking it internally, the wife died. Chief Justice Owen stated:

'It is not a sound proposition to say that a dealer in drugs, having in his stock and for sale deadly poisons, owes no duty to persons who do not deal directly with him in relation to them. The public safety and security against the fatal consequences of negligence in keeping, handling, and disposing of such dangerous drugs, is a consideration to which no dealer can safely close his eyes. An imperative social duty requires of him that he use such precautions as are likely to prevent death or serious injury to those who may, in the ordinary course of events, be exposed to the dangers incident to the traffic in poisonous drugs.' Davis v. Guarnieri, 45 Ohio St. 470, at page 492, 15 N.E. 350, 361, 4 Am.St.Rep. 548.

Whether the old rule, based upon the opinion in Winterbottom v. Wright, 10 Meeson & Welsby, 109, 152 Eng.Repr., 402, that a manufacturer or vendor is not liable for negligence to one with whom he had no contractual relations, ever was strictly followed in this state, need not here be discussed. Certainly, at the time of the oil of bitter almonds decision, there was recognized the liability, of a negligent seller of things whose normal function was to injure or destroy, to a person other than the one in privity of contract.

In the year 1916, a rather startling decision was rendered by the Court of Appeals of New York. It is interesting to note that the court had at the time a precedent similar to ours in the bitter almond...