Tremeroli v. Austin Trailer Equipment Co.

• Decision Date: 26 February 1951
• Court: California Court of Appeals Court of Appeals
• Parties: TREMEROLI v. AUSTIN TRAILER EQUIPMENT CO. et al. Civ. 14427.

Page 923

227 P.2d 923

102 Cal.App.2d 464

TREMEROLI v. AUSTIN TRAILER EQUIPMENT CO. et al.

Civ. 14427.

District Court of Appeal, First District, Division 1, California.

Feb. 26, 1951.

Rehearing Denied March 28, 1951.

Hearing Denied April 26, 1951.

Hadsell, Sweet, Ingalls & Murman, San Francisco, for plaintiff-appellant.

Brobeck, Phleger & Harrison, San Francisco, for defendant-appellant Austin Trailer Equipment Co.

Harold H. Price, San Francisco, for defendants-appellants Utility Trailer Sales Co., a copartnership, John N. Baird, Lavell S. Durell and Fred L. Sargent, copartners.

PETERS, Presiding Justice.

This action was instituted by Johnny Tremeroli, doing business as Johnny's Trucking Service, against Austin Trailer Equipment Company, a Michigan corporation that manufactures trailer equipment and parts, and Utility Trailer Sales Company, a partnership that sells and installs trucking equipment, to recover damages for losses alleged to have occurred when a tractor and semi-trailer of plaintiff were involved in an accident. The accident is alleged to have been caused by reason of the breaking of a portion of a so-called fifth wheel, the device which connects and holds the tractor and semi-trailer together. This fifth wheel was manufactured by Austin and purchased from and installed by Utility. The complaint alleges two causes of action against each defendant--one on the theory that defendants were negligent in various alleged particulars, and one for breach of warranty, which the evidence discloses was implied and not express. Each defendant denied the allegations of negligence, denied that there was any warranty, and affirmatively alleged contributory negligence on the part of plaintiff.

The court instructed the jury that, as to Utility, plaintiff had failed to produce any evidence of negligence, and that that issue was withdrawn from its consideration. The court further instructed that, as to Austin, the cause of action based on warranty was withdrawn from the jury's consideration because the evidence demonstrates that there was no privity of contract between plaintiff and Austin. Thus, the case was submitted to the jury, on proper instructions which are not challenged, as to Utility on the issue as to whether there was or was not a breach of implied warranty, and as to Austin whether it was or was not negligent. The jury returned a verdict against both defendants in the sum of $12,500. Both defendants moved for judgment notwithstanding the verdict, which motions were denied, the trial court writing a most helpful memorandum opinion setting forth its reasons for the denial. Judgment on the verdict was then entered, and both defendants moved for a new trial. The motion of Utility was denied, but the motion of Austin was granted on the ground of insufficiency of the evidence. Again the trial court filed a helpful memorandum opinion explaining the reasons for its actions. In this opinion the court stated that under the provisions of the Uniform Sales Act the seller warrants against latent defects where the buyer makes known the purpose for which the article is required, and it appears that the buyer relied on the seller's skill and judgment. The court held that the evidence disclosed that plaintiff relied on Utility to select the fifth wheel; that the purpose for which it was to be used was known to the seller; that the buyer could not have discovered the latent defect by inspection, and that any hardship on the seller is alleviated by the fact that the seller may recover from the manufacturer any damages recovered from the seller by the buyer. But as to Austin, the trial court stated that its motion for a new trial should be granted because of insufficiency of the evidence. The court stated, in its opinion, that it was not granting the new trial on the issue of contributory negligence on the part of plaintiff. It analyzed, in some detail, the expert testimony introduced, and concluded, as to Austin, that 'the evidence leaves the cause of the accident in the realm of surmise and conjecture which will not justify a verdict against' this defendant.

From the judgment and orders the following appeals have been taken:

1. Utility appeals from the judgment and from the order denying its motion for judgment notwithstanding the verdict.

2. Austin appeals from the order denying its motion for judgment notwithstanding the verdict and from the judgment against it. (That this is proper procedure see § 629, Code Civ.Proc. and Rule 3(a) of the Rules on Appeal.)

3. Plaintiff appeals from the order granting Austin a new trial.

The General Facts Applicable to all Appeals.

Plaintiff has operated a trucking business for the past twelve years. In 1941, or thereabouts, he started to do business with Utility, and thereafter made several purchases from Utility of trailers, equipment and fifth wheels. In February of 1946 plaintiff purchased a tractor from the Diamond T. Company, and also purchased a semi-trailer. He instructed the Diamond T. Company to send the tractor to Utility to have a fifth wheel installed. A fifth wheel is the mechanism by which a tractor, the automotive unit, is hooked up to a semi-trailer, the cargo unit, which has no motor of its own and has only rear wheels, its front portion resting on the tractor. The hooking and pulling unit between these two pieces of equipment is the fifth wheel. A semi-trailer usually comes equipped with its portion of the fifth wheel which fits on top of the lower fifth wheel which has to be installed on the tractor. It is this lower fifth wheel that is here involved. It is a large circular metal plate in which there is a slot to fit the pin of the upper fifth wheel. On either side of the bottom of the lower fifth wheel are bearings or brackets, which are supported by a horizontal axle that passes through the bearings. This axle also passes through other bearings or brackets that are attached to the frame of the tractor. After the accident, later described, these bearings were broken, and plaintiff claims that it was their failure that proximately caused the accident. There is no doubt that the bearings were broken after the accident, and that the breaks are in the form of shearing fractures, that is, a snapping off of parts of each bearing.

Utility is a partnership engaged in the business of selling trailers, and maintaining equipment and fifth wheels. According to plaintiff's testimony, when he, through the Diamond T. Company, ordered the fifth wheel installed, he left the selection of the type of wheel to Utility, as he had in prior transactions, and neither plaintiff nor the Diamond T. Company specified the make or type of fifth wheel to be installed. Plaintiff did not know that an Austin fifth wheel had been installed until he accepted delivery of the equipment after the installation. Utility, at that time, was selling several different types and makes of fifth wheels and it selected the particular type and size of fifth wheel that was installed. One of the partners of Utility testified that when the fifth wheel was ordered he knew for what purpose and use it was intended.

Austin is a Michigan corporation that manufactured the wheel in question. It has manufactured the particular model involved since 1932. Utility was not the agent of Austin. Austin sold the fifth wheel to Utility in the ordinary course of business, and title to the wheel was in Utility before the sale to plaintiff. The bearings of the fifth wheel were manufactured for Austin by the Albion Malleable Iron Company of Michigan according to specifications prepared by Austin.

Plaintiff accepted delivery of the tractor and semi-trailer and started to use it in his trucking business. Between February and August 16, 1946, the equipment was driven a little less than 30,000 miles, the last two months by Pearson, a truck driver with some seventeen years' experience who had worked for plaintiff for about a year. On August 16, 1946, plaintiff received an order to transport 1,400 lugs of pears from Lake County to Los Angeles. This was a normal load. Plaintiff dispatched Pearson to take care of the order. Pearson testified that he checked the equipment before starting on the trip, including a check of the brakes and of the fifth wheel to see that it was locked. He picked up his load in Lake County and started towards San Francisco. The pears were properly loaded in the semi-trailer. Pearson had proceeded about fourteen miles on his return trip when the accident occurred. At that time he was proceeding on an uphill winding two-lane highway, which was about twenty feet wide with a four-foot shoulder. The surface of the road was oil gravel and the day was sunny. While travelling around a sharp left turn Pearson sensed that the equipment was not steering properly. He looked back at the semi-trailer and discovered that it was 'climbing' towards the cab of the tractor, apparently because the semi-trailer had fallen onto the wheels of the tractor. The semi-trailer came forward and hit the right side of the cab of the tractor which was pushed forward almost against the dashboard. Pearson stopped, and the semi-trailer fell against an embankment. Pearson could not remember whether he had put on the brakes when he first observed what was happening. The tractor was equipped with a governor on each gear. Prior to the accident Pearson had been in low gear and had just shifted to the next higher gear when he noticed something wrong. The maximum speed that he could have been going in low gear was 19 miles per hour, while the maximum speed he could have been travelling in the next highest gear was 22 or 23 miles per hour. After he stopped, and after he alighted from the tractor, the equipment was hit by another vehicle. Pearson was charged by the highway patrol with speeding, and the court's docket indicates that he pleaded guilty and was fined $25. He testified, however, that he did not plead guilty but that the...