Summary
In Pokrajac v. Wade Motors, Inc., 266 Wis. 398, 63 N.W.2d 720 (1954) a used car dealer sold a car under a written contract which had an "as is" provision.
Summary of this case from Fleming v. Stoddard Wendle Motor Co.Opinion
March 3, 1954 —
April 6, 1954.
APPEAL from a judgment of the municipal court of Kenosha county: EDWARD J. RUETZ, Judge. Reversed.
For the appellant there was a brief by Cavanagh, Mittelstaed, Sheldon Heide of Kenosha, and oral argument by William A. Sheldon.
For the respondent there was a brief by Lepp Phillips of Kenosha, and oral argument by Burton Lepp.
Action for damages sustained in a collision alleged to have been caused by defective brakes on an automobile sold to plaintiff by defendant. Judgment for plaintiff upon a special verdict.
On January 18, 1952, the plaintiff came to the showrooms of defendant to buy a used automobile and was waited upon by defendant's president, Mr. Wade. Wade permitted the plaintiff to try out such an automobile which Wade himself had just finished driving. Plaintiff drove the car about town for twenty minutes or so and when he returned he told Wade that the automobile was all right except that the brakes needed adjusting. Wade told him they would take care of that. Plaintiff made a deposit of $10 that day and Wade told him that he would have the car made ready. The parties then signed a sales contract (plaintiff says he signed reluctantly), whose material part reads:
"In case the car covered by this order is a used car, the undersigned purchaser states that he has examined it, is familiar with its condition, is buying it as a used car, as-is, and with no guaranty as to condition, model, or mileage, unless otherwise specified herein in writing. No oral representations have been made to the purchaser and all terms of the agreement are printed or written herein."
On February 2d plaintiff came again to the defendant with the balance of the purchase price and took delivery. Plaintiff's nephew, McCrary, who is an automobile mechanic, drove the automobile home for the plaintiff. McCrary considered the brakes were defective and told the plaintiff so. The plaintiff then talked with Mr. Wade both by telephone and in person, complaining of the brakes and Mr. Wade told him that the brakes were good. McCrary brought the car to the Wade garage and asked permission to use the Wade shop in order to adjust the brakes himself. Permission was refused. McCrary took the car elsewhere and serviced it but did not change the brakes. That night he made some road tests and found that the brakes did not hold when the car was driven at high speeds. They did meet the test imposed by sec. 85.67, Stats., in that they would stop the car within 50 feet when traveling 20 miles per hour. McCrary had no opportunity to report this information to the plaintiff because the plaintiff got up early the next day and started to drive the car to California. He got as far as Des Plaines, Illinois, where, while driving at about 55 miles per hour, he was unable to stop the car in the midst of traffic and ran off the road. He was injured and the car was wrecked. He brought this action for the damages sustained.
Plaintiff's complaint alleges a first cause of action based on fraud. This was abandoned and the action was tried on the issues raised by the second cause of action, which alleged negligence on the part of the defendant in selling and delivering to the plaintiff the car with defective brakes. The trial court refused to admit the contract of sale in evidence when defendant offered it but did give the defendant permission to refer to the contract in his argument to the jury in so far as the contract stated that plaintiff had purchased without any representations and took the car "as-is." The exclusion of this evidence is one of the assignments of error.
The jury found by special verdict that the defendant delivered to the plaintiff an automobile not equipped with efficient brakes and that such automobile was imminently dangerous when operated upon the highway; that the defendant did not actually know of the defect but that he should have known; that the defendant represented to the plaintiff at the time of the sale and delivery that the brakes were in proper operating condition; that plaintiff was not guilty of any contributory negligence at the time of the collision and that the plaintiff did not know that the brakes were not efficient. The court gave judgment on the verdict in favor of plaintiff. Its written memorandum on motions after verdict says that the case of Flies v. Fox Bros. Buick Co. (1928), 196 Wis. 196, 218 N.W. 855, controls the result here.
All the answers in the special verdict have support in the evidence and if the case turns on the facts so found the judgment must be affirmed. In our view, however, the trial court erred in not recognizing that the relationship between buyer and seller, established by the written agreement under which the automobile was sold and delivered, makes our decision in Flies v. Fox Bros. Buick Co., supra, inapplicable to the present case. The Flies Case held the seller, who was also the rebuilder of a secondhand automobile, liable on grounds of negligence to a third person with whom the buyer of the car collided because the car's brakes were defective. That decision impresses us now as good law and, at any rate, it is a precedent firmly established in this state, but it dealt with the liability of a negligent manufacturer and seller of a chattel to a person other than the buyer and with whom the seller had no contractual relationship. The citations at 42 A.L.R. 1250, on which the Flies decision was based, concern similar third-party situations. The present action between the seller and the buyer is outside the scope of the Flies Case.
While recognizing that ordinarily a seller has a duty to use reasonable care to deliver to the buyer an article safe for the purpose for which it is intended, we must recognize, too, that as between them the duty, and consequently the liability, may be modified by agreement. The ancient doctrine of caveat emptor has been much modified and restricted in modern times but we have not yet heard that a party may not buy secondhand articles at his own risk if it suits him to do so. By the terms of the sale this buyer did just that. Those terms might be avoided if they were induced by the seller's fraud but plaintiff abandoned that cause of action although he had originally pleaded it. Plaintiff insists that the issue is one of negligence only and when he dropped the fraud issue the matter of the contract went out of the case. We cannot see the situation in that light. Even though plaintiff rests his complaint on the defendant's negligence, defendant's liability to him must depend on a breach of duty. We can find no such duty or breach in this case because plaintiff bought the car "as-is" without guaranty as to condition, thereby, as between themselves, releasing defendant from responsibility for such defects as it might have and himself assuming the risk. This buyer does not stand in the position of one who made no specific agreement concerning condition and he does not attain that position by charging the seller with negligence in delivering the automobile "as-is" when he had agreed to take it that way. Having taken it subject to such defects as it might have, he cannot throw liability arising out of its defects back on the seller. We see no reason in public policy why the parties may not, as between themselves, make such a contract, and that they did so here is undeniable. Accordingly, we hold that it was error for the trial court to refuse to admit the contract offered in evidence by defendant and with that admitted, fraud being already out of the case, plaintiff's cause of action fails.
By the Court. — Judgment reversed and cause remanded with directions to enter judgment dismissing the complaint.