Summary
In Thrash v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419 (1953) there was a sale "as is" of a used vehicle to a used car dealer for resale with a defect created by the "as is" seller.
Summary of this case from Fleming v. Stoddard Wendle Motor Co.Opinion
Nos. 32936 and 32952
Decided January 21, 1953.
Negligence — Actionable negligence established, how — Intervening agency capable of eliminating existing hazard — Break in chain of causation — Original agency absolved — Used motor vehicle sold to motor vehicle dealer — Purchaser from dealer injured because of defects in vehicle — Original owner not liable therefor, when — Dealer not insurer of vehicles sold — Duty to discover and correct defects.
1. To establish actionable negligence it is fundamental that the one seeking recovery must show the existence of a duty on the part of the one sued not to subject the former to the injury complained of, a failure to observe such duty, and an injury resulting proximately therefrom.
2. Where there intervenes between an agency creating a hazard and an injury resulting from such hazard another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency.
3. Where the owner of a used motor vehicle sells the same "as is" to a dealer in those articles for such disposition as the dealer may make of it, such owner may not ordinarily be held liable for injuries occasioned to one who purchases the vehicle from the dealer or for injuries to another, because of faults or imperfections in the vehicle which existed or occurred during the time it was in the possession of such owner.
4. Although a dealer in used motor vehicles is not an insurer of the safety of the vehicles he sells, he is generally under a duty to exercise reasonable care in making an examination thereof to discover defects therein which would make them dangerous to users or to those who might come in contact with them, and upon discovery to correct those defects or at least give warning to the purchaser. Such rule is of particular significance where the sale of such a vehicle is accompanied by representations or warranties as to its fitness for use.
APPEALS from the Court of Appeals for Summit county.
Ronald Thrash, a minor, by his next friend, brought his action for damages in the Court of Common Pleas of Summit County against the U-Drive-It Company and the Spot Motor Company on account of personal injuries he received by reason of their alleged negligence.
Both defendants are Ohio corporations operating in the city of Akron. The U-Drive-It Company is engaged in the business of renting to the public motor vehicles which it owns, and the Spot Motor Company is engaged in the business of buying and selling new and used automobiles and motor trucks.
The amended petition avers that on October 12, 1946, on a highway near Creston, West Virginia, while plaintiff was riding in the body of a motor truck owned by his father and then being operated in a lawful manner in the father's business, a lock ring on the left front wheel of the truck suddenly and without warning blew off and caused the tire to be released from the rim, and that thereby the truck became unmanageable, left the road and rolled down an embankment, crushing plaintiff beneath it.
It is further alleged in the petition that the motor truck involved had been owned, serviced and rented out to the public for a number of years by the U-Drive-It Company and that such truck was sold to the Spot Motor Company, which in turn sold the same to plaintiff's father.
Additional allegations are to the effect that at the time the U-Drive-It Company sold the truck to the Spot Motor Company and at the time the latter sold the truck to plaintiff's father the left front wheel of the truck was equipped with a lock ring which was not designed to fit and did not fit the rim to which it had been applied and that it was loose and insecure and was likely at any time during the normal use of the truck to blow off under the pressure of the inflated tire.
The U-Drive-It Company is charged with negligence in equipping the truck with a mismatched and insecure lock ring, in failing to warn the Spot Motor Company of such condition, in failing to warn plaintiff's father of the situation upon knowledge that he had purchased the truck, and in placing upon the market for ultimate sale to the public a motor truck containing a latent and inherently dangerous defect.
The Spot Motor Company is charged with negligence in failing to inspect the truck for defects before resale, in failing to warn plaintiff's father of the misfitted and insecure lock ring, in representing to the purchaser that the truck was in good operating condition, and in placing on the market and selling for use a truck containing a latent and dangerous defect.
Each defendant answered denying generally the material allegations of the petition.
The cause came on for hearing before the court and a jury, and the opening statement of counsel for plaintiff, with considerable amplification, corresponded generally with the averments of the amended petition. However, in such opening statement nothing was said concerning any knowledge on the part of the U-Drive-It Company that plaintiff's father had purchased the truck from the Spot Motor Company, and a comment with respect to the claimed negligence of the U-Drive-It Company was as follows:
"Since we will show that at some time while that truck was in the possession of the U-Drive-It Company, that wheel was changed, we say that's proof that U-Drive-It changed it, or at least if they claim somebody they rented it to lost their front wheel and put on a different one, it's something they should have known about."
Following such opening statement, counsel for both defendants moved for judgment on the pleadings and opening statement. After deliberation, the trial court instructed the jury to return a verdict for both defendants, which was done, and judgment was thereafter entered accordingly.
An appeal on questions of law to the Court of Appeals resulted in an affirmance of the judgment below as to the U-Drive-It Company, and a reversal of the judgment and remand of the cause as to the Spot Motor Company.
Separate motions to require the Court of Appeals to certify its record were filed in this court by plaintiff and by the Spot Motor Company, and allowance of those motions brings the cause here for review and final determination.
Mr. C. Craig Spangenberg, Mr. Robert L. Culbertson and Mr. Charles E. Pierson, for appellee and appellant, Ronald Thrash.
Mr. James Olds and Mr. Chester G. Wise, for appellee, U-Drive-It Company.
Messrs. Buckingham, Doolittle Burroughs, Mr. Dwight Parsons and Mr. Hugh Colopy, for appellant and appellee, Spot Motor Company.
Based on the English case of Winterbottom v. Wright (1842), 10 Meeson Welsby, 109, 152 Eng. Repr., 402, the rule of general acceptance for many years was that a contractor, manufacturer, vendor or furnisher of an article is not liable to third persons who have no contractual relations with him for negligence in the construction, manufacture or sale of such article. 3 Cooley on Torts (4 Ed.), 463, Section 498; 38 American Jurisprudence, 662, Section 21. This principle is discernible in the leading case of Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep., 767.
Under this general rule, exceptions were recognized as to the sale or furnishing of articles which are inherently dangerous, such as poisonous drugs or other deleterious substances intended for human consumption or use. Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350, 4 Am. St. Rep., 548; Canton Provision Co. v. Gauder, a Minor, 130 Ohio St. 43, 46 196 N.E. 634, 635; and Sicard v. Kremer, 133 Ohio St. 291, 13 N.E.2d 250. Compare 38 American Jurisprudence, 664, Section 22.
Following the turn of the twentieth century, the sale and use of motor vehicles increased tremendously, and in 1916 the Court of Appeals of New York decided the landmark case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440. There, plaintiff purchased from a retail dealer a new automobile upon which the manufacturer had installed a defective wheel furnished by another manufacturer. The wheel collapsed while plaintiff was driving the vehicle, resulting in personal injuries to him. Plaintiff brought his action for damages directly against the manufacturer of the vehicle and was allowed recovery on the theory that the manufacturer of a new motor vehicle who knows that without new tests it will be used by others than the immediate buyer owes the duty of careful inspection, and, if a remote vendee is injured by reason of a defect discoverable by the manufacturer, such vendee may maintain his action against the manufacturer, and the latter's liability is one arising in law independent of contract.
The principle announced in the MacPherson case is a reasonable and salutary one and has been widely approved in the cases and by text writers. See 2 Restatement of the Law of Torts, 1073 et seq., Section 394 et seq. Compare Carter v. Yardley Co., Ltd., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R., 559; 65 Corpus Juris Secundum, 629, Negligence, Section 100C et seq.
Certainly, though, this rule is subject to limitation. There is a marked difference between a manufacturer of a new motor vehicle and one who sells his used motor vehicle to a dealer in this class of merchandise, which dealer may thereafter resell the vehicle to another. As concerns the ultimate purchaser of a new motor vehicle, it is just and right that the manufacturer should be made to respond for injuries due to defects in the vehicle he has fabricated or assembled and placed on the market and which defects he should have discovered in the exercise of due diligence.
The seller of a used motor vehicle to a dealer occupies and should be placed in a different position, especially where he makes no representations or warranties as to the condition of the vehicle sold and where any defects or weaknesses therein would be detectable by the dealer upon examination before resale for further use.
If it be conceded that the U-Drive-It Company was negligent in regard to the rim complained of, the fact remains that it had no dealings with plaintiff's father who purchased the truck or with plaintiff, and it is not asserted that in the purchase of the vehicle either of them relied on the U-Drive-It Company or had cause to do so.
"To establish actionable negligence it is fundamental that the one seeking recovery must show the existence of a duty on the part of the one sued not to subject the former to the injury complained of, a failure to observe such duty, and an injury resulting proximately therefrom." Baier v. Cleveland Ry. Co., 132 Ohio St. 388, 389, 8 N.E.2d 1, 2.
Moreover, in the circumstances of this action the U-Drive-It Company may invoke the rule that, where there intervenes between an agency creating a hazard and an injury resulting from such hazard another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency. 65 Corpus Juris Secundum, 691, 692, Negligence, Section 111; 38 American Jurisprudence, 729, 730, Section 72. Compare Ford Motor v. Wagoner, 183 Tenn. 392, 192 S.W.2d 840, 164 A.L.R., 364; Carter v. Yardley Co., Ltd., supra, and Witherspoon v. Haft, 157 Ohio St. 474, 485, 106 N.E.2d 296, 302. Or, stating the matter a little differently, "where after the negligent act a duty devolves on another person in reference to such act or condition which such person fails to perform, such failure is the proximate cause of the injury resulting from the act." 45 Corpus Juris, 937, Negligence, Section 496.
Plaintiff cites and relies on Pennsylvania Rd. Co. v. Snyder, 55 Ohio St. 342, 45 N.E. 559, 60 Am. St. Rep., 700. That case involved two railroad companies, the Pennsylvania Railroad Company and the Lake Shore Michigan Southern Railway Company. They operated connecting railroad lines and entered into a traffic arrangement by which they were to share in the earnings of transportation according to the distance cars should be hauled over their respective roads. Under the arrangement, Pennsylvania, before delivering its cars to Lake Shore, agreed to have them properly inspected and put in safe condition for hauling. A certain freight car when delivered to Lake Shore to be taken over its road was defective and unsafe, which condition proper inspection would have disclosed. On account of the defective condition of the car an injury was sustained by an employee of Lake Shore, who brought an action for damages against both companies. Thereafter, Lake Shore was dismissed by the plaintiff and the cause proceeded for trial against Pennsylvania. The trial resulted in a judgment and verdict for plaintiff, which judgment was affirmed by both the Circuit Court and this court.
It is submitted that the Snyder case on its facts is materially different from the instant action. There, Pennsylvania was at all times the owner of the defective freight car and exercised control over the same under a profit-sharing agreement which imposed on that company the positive duty of inspection and repair. Here, the U-Drive-It Company sold its used motor truck outright in the condition it was and assumed no obligation and exercised no control with respect to its future disposal. Compare the frequently cited case of Missouri, K T. Ry. Co. v. Merrill, 65 Kan. 436, 70 P. 358, 59 L.R.A., 711, 93 Am. St. Rep., 287. And see annotations, 41 A.L.R., 114 et seq., and 152 A.L.R., 1313.
We conclude that where the owner of a used motor vehicle sells the same "as is" to a dealer in those articles for such disposition as the dealer may make of it, such owner may not ordinarily be held liable for injuries occasioned to one who purchased the vehicle from the dealer or for injuries to another, because of faults or imperfections in the vehicle which existed or occurred during the time it was in the possession of such owner.
Consequently, in our opinion, both the trial court and the Court of Appeals were correct in discharging the U-Drive-It Company from the case.
Under the allegations of the amended petition and the opening statement of counsel for plaintiff, the Court of Appeals properly reversed the judgment below and remanded the cause for trial as to the Spot Motor Company, which sold the truck to plaintiff's father. Whether the evidence at the trial will support the claims made is of no present concern.
Although a dealer in used motor vehicles is not an insurer of the safety of the vehicles he sells, he is generally under a duty to exercise reasonable care in making an examination thereof to discover defects therein which would make them dangerous to users or to those who might come in contact with them, and upon discovery to correct those defects or at least give warning to the purchaser. Such rule is of particular significance where the sale of a vehicle is accompanied by representations or warranties as to its fitness for use. 60 Corpus Juris Secundum, 503, 504, Motor Vehicles, Section 165 b (2); 5 American Jurisprudence, 690, Section 349; 6 Berry on Automobiles, 292, Section 6.232.
No error being found in the judgment of the Court of Appeals, the same is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART and STEWART, JJ., concur.