Supera v. Moreland Sales Corp.

JENNINGS, J.

Theplaintiff instituted this action against the defendants to recover from them the cost of repairs made to a certain truck which had been purchased by plaintiff from the defendants and damages for deprivation of the use of said truck during the time the repairs were being made. It was alleged in plaintiff’s complaint that the property damage which plaintiff suffered was caused by the negligence of defendants in failing properly to overhaul and recondition the truck and in installing defective parts therein prior to plaintiff’s purchase of the same. Trial of the action took place before the court without a jury and resulted in the entry of

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a judgment in favor of defendants from which plaintiff has perfected this appeal.

Appellant contends that the findings of the trial court are irreconcilably conflicting and that they are not supported by the evidence. Proper consideration of these contentions requires a statement of the facts which were developed by the evidence.

On September 27, 1931, appellant purchased from respondent Sam Tobias a certain Moreland motor truck described as model B 7. At the time the sale to appellant was effected Tobias was branch manager for respondents Moreland Sales Corporation and Moreland Motor Truck Company in the city of Bakersfield. As part of the purchase price appellant turned in another truck which he owned and paid the remainder of the price in cash. The truck which appellant thus purchased was a used truck which had been reconditioned by the Moreland Motor Truck Company at its factory in Burbank, California. When the sale was made Tobias stated to appellant that the truck carried a thirty-day guarantee which he testified meant that the material of which the truck was composed was in good condition, rear end in good condition, and transmission in good condition; that the entire truck was in good condition and that it was guaranteed so to remain for a period of thirty days after the sale. On October 6, 1931, appellant was operating the truck which contained a load consisting of ten steers. He was then driving the vehicle along a rough road. About 10:30 at night he arrived at a place where the road made a turn to the right which was immediately followed by a turn to the left. At this time appellant was driving the truck at a speed of approximately twelve to fifteen miles per hour. He negotiated the first turn successfully, but in attempting to make the second turn was unable to steer the vehicle properly, with the result that the truck proceeded straight ahead and overturned in a ditch at the side of the road causing the damage which necessitated repairs to the truck and the consequent deprivation of use. Examination of the steering mechanism of the truck which was made after the occurrence of the accident disclosed that the drag link and pitman arm were disconnected and that the set screw in the end of the drag link, which holds the pitman arm and drag link properly connected was unscrewed to a point where it was held in the drag link by only two or three