John L. CASEY and Edith Casey, husband and wife, Appellants,
BEAUDRY MOTOR COMPANY, a corporation, Appellee.
[83 Ariz. 7] Robert F. Miller, Tucson, for appellants.
Darnell, Holesapple, McFall & Spaid, Tucson, for appellee.
UDALL, Chief Justice.
The sole question presented by this appeal is whether at the close of all the evidence the trial court erred in taking the case from the jury by instructing a verdict for defendant-appellee, Beaudry Motor Company, a corporation.
This was a tort action initiated by John L. Casey and Edith Casey, his wife, for personal injuries sustained by the wife, growing out of a collision between two motor vehicles. Mrs. Casey was a passenger in a car driven by her husband, which car was owned by the corporate defendant and had been loaned to the plaintiffs for demonstration in contemplation of purchase by them. We shall hereafter refer to the parties either by name or as plaintiffs and defendant.
The principal issue raised at the trial was whether the defendant was negligent in furnishing a defective automobile to the plaintiffs which it knew or should have known was dangerous. Specifically, it is the plaintiffs' contention that the personal injuries suffered by Mrs. Casey (Mr. Casey was not injured) were proximately caused [83 Ariz. 8] by the negligence of defendant in knowingly furnishing a car with defective brakes and in not maintaining the standard of care incumbent upon those selling used cars to the public.
Plaintiffs' motion for a new trial was denied and this appeal is from the denial of such motion and from the judgment entered in favor of defendant.
It is well established in this jurisdiction that in determining the question as to the correctness of a judgment entered on a directed verdict for defendant, conflicting evidence must be viewed in a light most favorable to plaintiff. A motion by defendant for a directed verdict is regarded as admitting the truth of whatever competent evidence the plaintiff has introduced, including the reasonable inferences to be drawn therefrom. Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201; or stated another way:
'Negligence only becomes a question of law for the court's determination when rational minds may not draw different conclusions from the undisputed evidence.' Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220, 222; and for the latest expression thereon see, Matsumato v. Arizona Sand & Rock Co., 80 Ariz. 232, 295 P.2d 850.
Defendant corporation is engaged, in Tucson, Arizona, in the business of selling new and used automobiles, and in connection therewith operates an authorized service department. Its organization consists of some 50 employees. Defendant knew
that plaintiffs were in the market for a used automobile and on March 19, 1954, defendant's salesman invited plaintiffs to try out a 1949 Chrysler which he described as a 'nice, clean-looking automobile'. Mr. Casey in midafternoon drove it off the lot, with permission of defendant's agent, for the sole purpose of testing the car out for possible purchase. He was accompanied by his wife and daughter. The route taken was out Casa Grande Highway (U.S. 84) for a distance of approximately seven miles, and according to Mr. Casey the brakes functioned properly at the several stops made on the outward journey. Near the point where he turned and started back toward Tucson, in applying the brakes Casey observed the car swerved to the left. On the return trip-which was by way of Prince Road-as the car approached an intersection, he stated, the brakes needed pumping to stop. Approaching the next intersection at Stone Avenue plaintiff saw a car approximately 400 feet in front of him that had stopped for a red light. Recognizing that he must stop, plaintiff testified he took his foot off the accelerator and when within 40 feet of the car ahead, and while moving at a speed of 10 to 15 m.p.h., attempted to stop the Chrysler but found he had no brakes and as a result [83 Ariz. 9] the car smashed into the rear of the stopped car. His wife was thrown forward, striking her head against and breaking the windshield. She sustained personal injuries of a serious and permanent nature. No skid marks were laid down by the Casey car prior to impact. The road was dry, level, smooth, paved, free of loose material and the weather was clear. Before the officers arrived the Chrysler car was pushed off the highway, during the process of which, according to Casey, the brakes locked causing skid marks to be laid down. Mr. Casey promptly summoned an ambulance for his wife and advised the corporate-defendant by telephone of the accident and that it had occurred by reason of defective brakes. Mr. Casey had had 25 years experience in driving as a private citizen and as a policeman with various automobiles under various conditions. According to his story he had never previously suffered an accident. Only 20 to 30 minutes elapsed between driving the car off the lot and this accident, and only normal driving was done on the demonstration ride.
In refutation of the charge that the brakes were in a dangerous and defective condition, the defendant introduced evidence which may be thus summarized:
The car in question had been previously sold by defendant as a used car and at this time it was some five years old and had been driven approximately 50,000 miles before its repossession in Farmington, New Mexico. On March 12, 1954, the car was driven from Farmington and delivered to defendant. Immediately thereafter the car was sent to its service department for certain repairs including 'adjustment of brakes', preparatory to a resale. Defendant's experienced mechanic, Elmer Rolof, being the person whom the company's written records showed had performed these repairs, testified as to the customary steps taken in adjusting brakes under such a work order. However, the witness had no independent recollection of this particular Chrysler car due to the volume of repair work handled.
One of the sheriff's deputies who investigated the accident and was told by plaintiff that the brakes were defective testified that he then and there gave the Chrysler car a standing brake test-both hard and slow pressure-and found in each instance there was 'a three-quarter pedal' which he stated is an extremely good brake.
At the outset it is well to determine the status and relationship of the parties. We hold that the particular factual situation here presented relative to the use of the car establishes a gratuitous bailment wherein the bailor and bailee are mutually benefitted. There is no element of agency involved. The defendant (bailor) is not an insurer against the defective condition of the car placed in plaintiffs' (bailees') hands, but he must use ...