*1 PLAINTIFF-APPELLANT, CINTRONE, v. HERTZ FRANCISCO SERVICE, DEFENDANT- LEASING & RENTAL TRUCK RESPONDENT. 4,1965. 16,1965 August Argued March 15 and Decided *3 Mr. Bernard Chazen the cause argued for plaintiff-appellant Baker, Chazen, & Garber (Messrs. attorneys). *4 Mr. E. Chernin the cause for argued defendant- Sanford Krowen, Chernin, D'Amico &
respondent (Messrs. attorneys).
Mr. H. Nelson filed a brief Samuel on behalf of Avis Rent Inc., A Car amicus curiae. System, Schreiber, Messrs. M. Sidney F. Roger Lancaster and Ger- Conway ald IF. filed a brief on behalf Ava Truck Leasing, Schreiber, Inc., amicus curiae Demos, (Messrs. Lancaster & attorneys). by delivered
The of the court was opinion while injured Cintrone was Plaintiff Francisco J. Francis, de- from the his employer in a truck leased passenger the he in action charged fendant. this complaint defendant’s in he was resulted from accident which injured the vehicle leased or maintenance negligent inspection was vehicle the warranty from of defendant’s breach ex- was warranty (Whether alleged fit and safe for use. the The trial court dismissed was not implied press specified.) defendant’s claim, and the issues of warranty the submitted jury, to the negligence contributory and negligence plaintiff’s appeal which found in favor of the defendant. Plaintiff’s on own motion from the certified our adverse was judgment it. before the Division acted upon Appellate court two the trial appeal: Plaintiff presents grounds count of complaint erred the the dismissing warranty (1) and to the jury, (2) to submit that issue refusing contributory neg- the consider defense of the allowing jury record has led us to the conclusion ligence. Study because, be reversed on facts proved, should judgment for truck rise to contract use of the leasing gave it was the use contemplated by fit for implied warranty hold evidence Furthermore we that the plaintiff’s employer. with adduced circumstances respect surrounding of the accident created a as to jury happening question had and whether whether breach of been shown warranty shown, if it In our was cause accident. producing however, it was error to the issue of not submit judgment, jury. to tire contributory negligence plaintiff’s warranty It that the or strict liabil suggested has been be this should not considered Court because the ity problem seriously in the trial The record is issue not raised court. second count of the contrary. clearly complaint that the "vehicle was breach fit grounded Moreover, for use.” order safe con pretrial specifically "in tains the contention that defendant said truck supplying warranted that it was fit plaintiff’s employer pur- *5 * * used allega- for -whichit was being quoted pose rental undertook to continued “and the contract of tion de- in and and that said said vehicle order good repair keep and it was unsafe warranty fendant breached said because system of which the unfit for use because of the brake faulty knew or have known.” (Emphasis added) defendant should clear, be it cannot crystal not be language may Although was warranty concluded of law that the alleged as matter of defendant’s tied or limited to claim of breach expressly vehicle in order repair. to undertaking keep good denied breach defendant twice forth its contentions setting warranty if and, addition, asserted that warranty, be- run favor or “it did not theory plaintiff’s did apply, order the issues reciting half.” The section of the pretrial “Was there breach other among things: be tried specified, ?” defendant warranty by summations, the trial case, but before At the close of the issue. He said: warranty dealt with the judge expressly “Gentlemen, I a motion addressed still have under reservation warranty.” dismissal of the second count with reference to Then he advised counsel of intention to limit his charge to the Plaintiff’s jury attorney question negligence. noted an matter of duly objection. warranty Thus the in the case and is to this Court clearly justifiably presented for determination.
The intimation is made also that should not be decided strict issue us because (1) injury the case is trivial one as to plaintiff’s monetary losses, at the trial level was presentation superficial (2) sides, both the evidence was which to (3) sparse upon and determine an important consider As we legal principle. said, have is raised on the warranty question properly Once that fact appears, record before us. is entitled litigant If the have his court. evidence adduced here cre day whether a warranty a factual issue as to of fitness which ated *6 breached, extends to him if a was the evidence created fac tual a issue as to whether defendant violated which duty gives a tort, cause of action based on strict it is the obli gation redress. Our judiciary provide appropriate to hear and duty decide does not on whether depend appeal quantum suffered was or little. damages great (It may be noted that the case was not transferred to the district court. See R. R. Nor is it an 4:3-4.) court function to appellate evidence. If the weigh established factual issue as to proof violated, whether we plaintiff’s right was cannot refuse to hear him because we have credibilit3r, doubts as to his or even if we think a jury would decide him. probably against
Defendant Hertz Truck & Rental is in the Leasing Service business of and various of motor vehi- leasing renting types cles to the Packers, public. Plaintiff’s Contract employer, Inc., had leased nine trucks from defendant for use in its Ford, business. One of them was 1959 22 feet and 11 long feet high. leasing trucks was on long-term basis. Neither the lease in party put evidence but oral testimony was introduced as to its terms.
Contract Packers’ place Street, of business is on Warren Jersey City, New Hertz’ Jersey. and of service garage place of the trucks leased to Contract Packers is at 15th and Provost Streets the same city. Under the lease the trucks were kept at Contract Packers’ but Hertz premises service, agreed and maintain them. The repair was arrangement that once a 18,000 year miles, first, or every whichever came Hertz was to maintenance.” provide “preventive This meant that the vehi cle taken from the lessee (who was given replacement) to Hertz’ brought There the entire garage. vehicle was serviced; motor, brakes, examined body, steer springs, mechanism, etc., after ing which it was lights, returned to the addition, lessee. In every dajrs Hertz mechanic was sent to Contract Packers’ premises inspect trucks. He would them, over the brake go checking pedal reserve, clutch, brake, horn, hand lights, steering signal etc. lights, If were needed and repairs adjustments could be made on the were spot, they not, taken care of If the truck immediately. would be removed to the Hertz and if a re necessary garage vehicle placement provided.
Moreover, under the between the arrangement parties, the end of each use the day’s Contract Packers driver who had driven one of the trucks that it to the Hertz day brought where it would be garage for the next While “gassed up” day. done, this was for each being procedure was driver to re- port any trouble he had or he wished to make in complaint connection with the operation of truck. He would fill out an A.Y.D. vehicle form (alleged defect) specifying prob- lem. If a complaint related to some minor difficulty *7 could be corrected it would be quickly, taken care of immedi- and after the ately the gassing operation completed, driver would be allowed to drive the vehicle back to his em- ployer’s place (The impression business. from the gained record is that Contract Packers loaded the trucks the during so as to have them night to start on the ready route delivery in the If the morning.) difficulty more attention required but still was of a nature, minor the driver would be allowed to drive it back to his Then when employer’s yard. Hertz’ night shift mechanics came on duty (the garage operated 24 hours a days seven day, week), they truck, would the pick up drive it the to malee the or garage, repairs adjustments and return it to Contract Packers so as to have it available for morning use. There is some indication in the evidence simple adjustment be taken repair might care of at the lessee’s location without removal to the Hertz garage.
Whenever a needed which a driver repair had brought Hertz’ attention could not be made during or on gassing up, the lessee’s lot at the truck would night, be removed from service and another. replaced by Then on completion work, the vehicle would be returned to the lessee and the sub- recalled. If a stitute related to complaint allegedly defective brakes, the truck would be In such a replaced. situation the checked, brake reserve be would and the pedal master cylinder examined for fluid level. Thereafter the truck would be tried
out in and taken on the road yard, testing the out remedial operation, brakes at the speeds. Following higher the vehicle would be returned to the lessee. of Contract had been in the plaintiff employ Cintrone accident before the
Packers as a for three driver-helper years 1961. On 3, Monday, April which occurred on question he had week previous Wednesday, Thursday Friday testi- driven 1959 Ford described above. He the leased truck he re- days fied that the end of the run on each of those at were not and needed adjustment. the brakes ported working were the Hertz while The three made at complaints garage two each One re- slips day. out A.V.D. refueling by filling Hertz, mained his Hertz with other went to employer. left with had no record the three apparently slips allegedly it Nor did trial plaintiff Cintrone. produce event, so he said went copies employer. any which far as Cintrone knew no were made repairs adjustments The truck have been used the next Sat- may day, brakes. else. so, but if it was driven someone On two of urday, referred had a him. He days three Cintrone to he with helper thereafter, he said left but helper employment shortly made no locate him for at the trial. effort to use as witness On Ford truck was scheduled for deliv- April day was to be the and one ery trip. helper Cintrone Sottilare, Robert another Packers Contract employee, *8 at about a.m. At driver. The men for work 7:00 reported the trial testified that before left they Sottilare the employer’s to him brakes. lot Cintrone about the Cintrone made spoke in his testimony. no mention of this Sottilare said he tested seemed be all driving away they brakes before right. Dover, drove from New Jersey City Jersey Sottilare way where had the first On the the truck had delivery. they to be red and sometimes in traffic. lights Cintrone stopped know this occurred testified he did not whether once or twenty he did noticed times. But not he unus- fifty say anything not ual the brakes or were they about Sot- functioning. until the time up tilare testified accident he had brakes; no with the were in condi- difficulty they operating tion; did fail in wasn’t not they any way; “they perfect”; awere little low but held.” “they they Suffern, After Dover the men headed for New leaving noontime, York. About as Route along Sottilare going Suffern, came around 202, within the he limits apparently or trestle a bend in the road and saw an overhead bridge a low bridge, feet or so ahead of him. It was hundred brakes; feet, 6 inches. only applied clearance Sottilare until forward failed. The truck “just kept going” they put As Cintrone of its hit the overhead structure. peak body And he never brakes. it, he saw “the driver pumping work.” the truck the brakes didn’t because stopped to a hospital men were removed They Both were injured. car. by Suffern, ambulance, police Cintrone Sottilare released; Sotti- examined, some pills Cintrone was given lare remained there. in Jer- Packers drove truck back to Contract
Cintrone gear, or second He said he drove first City. slowly, sey and stop- for slowing the hand brake and the low gear using drive the truck to arrival in he did not On ping. Jersey City with trouble any the Hertz the accident report garage fact, lot. He left the vehicle at his employer’s the brakes. the accident to he did not he say reported when testifying, statement any The record is barren of Contract Packers. the accident Hertz or his about employer him that he ever told or its details. of the accident on evening signed report
Sottilare ahit low railroad bridge.” In it he said: truck “My 3. April brakes. He failure of the was no note about alleged There whom he however, he told the testified, person gave brakes. about the failure of the report to when the truck was used next The record is silent as accident, after the days On April eight after the accident. came the truck to Hertz’ day, at the end presumably does not show who drove it there. An The testimony garage. *9 complaint A.Y.D. form was made out to record were The foreman noticed that faulty. brakes night in his of the truck was At one body damaged. point “peak” he he and one the mechanics testimony inspected said form tested the brakes and found The dated nothing wrong. 11 and entitled “Foreman’s A.Y.D.” April Investigation at the trial. contained a notation: “Brakes was It produced The checked. Found to be in order.” next two lines working form after that comment were: “Is confirmed: No: A.Y.D. probable yes, If cause: None.” The and date and time appear foreman’s night signature p.m. the bottom. The time 7:00 noted was The notation on the form is to the foreman’s state- contrary ment in another of his He was asked what he part testimony. did with the truck after the was received that complaint brakes were He faulty. answered: repaired braking held vehicle and “We the defect mech- anism.” The to the roof of the truck damage was repaired, although when it was done was not shown. for whatever time Except work, was to do the there is required body to show nothing where the truck between what, was 3 and April April if use made of it any, during period. adduced trial, no at the plaintiff proof or other- expert
wise, what, as to if was defective anything, specific about the brakes at the time of the accident. Likewise there was no the truck had suffered an proof suggest accident or incident, kind of an any untoward which did affect or which brakes, have affected the from the time might it left the yard in the until the collision with the morning overhead structure. Nor was evidence introduced of travel any over uneven or roads bumpy during trip.
I. in favor of the which the verdict under The circumstances indicative that the jury are returned strongly defendant was defendant no con- on the part found no negligence The record the of the plaintiff. on part tributory negligence the sent note to jury deliberations their during reveals that saying: the judge prove that either insufficient evidence is “If feel tliat there we throwing negligence guilty cause for
party this as a we use —can case out?” the jury the judge, again answer from an affirmative After the defend- returned with five minutes and in about retired plaintiff challenges although verdict. On this appeal, ant’s submitting the trial court’s action propriety accepts he jury, contributory negligence issue of the time of failure of the brakes at that the finding on defendant’s chargeable negligence accident was not how- the adverse judgment, seeks reversal of Plaintiff part. between ever, relationship that the contractual ground to an implied continuing and his rise employer gave Hertz Hertz the truck in warranty question promissory it, rented fit for the for which purposes plaintiff’s employer e., i. on the operation transportation goods public high- further adduced the fail- ways. He that under urges proof created a fac- ure of the brakes and the accident consequent tual issue for determination as to whether there was jury he claims the court warranty. breach Therefore implied erred in to submit that issue for consideration. jury refusing Sons, Inc., v. Levitt & 44 N. J. 70
Schipper (1965), Inc., v. A & M 44 N. J. 52 Santor Karagheusian, (1965), Motors, Inc., N. v. Henningsen J. Bloomfield if have made it in the (1960), plain relationship case between Contract Packers and Hertz manu were present an facturer or dealer and purchaser, implied warranty fit- ness for on the would operation public have come highway into Moreover, existence at the time of the sale. under those cases, breach of the which caused personal injury employee would be actionable the em- purchaser It must be ployee. however, that the occasions recognized, have been few when been relatively the courts have asked to warranties in imply cases as an incident personal injury transactions other than sales of chattels. in New Certainly there is Jersey no ease like this one precisely involving contention bailment hire of motor vehicle aby *11 bailor or lessor in such rental engaged business carries with anit implied warranty that the rented vehicle is fit and will continue to be fit for the rental for the and period ordinary expected purposes of rental.
There is no reason for good such warranties restricting to sales. Warranties of fitness are law anas incident regarded by of a transaction because one to the in a party is relationship better position than the other to know and control the condi- tion of the chattel transferred and to distribute the losses which occur may because of a condition the chattel dangeroits These possesses. factors make it that the likely party acqitir- ing possession of the article will assume it is in safe condi- tion for and use therefore refrain from precautionary taking James, Torts, measures himself. 2 and Harper 28.19 § Harper James out (1956). point that presence such factors in in sales set motion the development doctrine of warranties. implied They notion, how- decry ever, that because the doctrine had its sales, in origin the war- ranty should be withheld in protection other situations when the same considerations obtain. And they argue persuasively in the face of present-day forms of business enterprise, development doctrine in warranty sales should point to way by suggestive analogy similar in results cases where Id., a commodity is leased. 1577. p.
In this connection it bemay observed also that the comment section of warranty the Uniform Commercial Code
447 sales transactions. warranties to out against confining speaks says: The comment scope purpose “Although direct is in its this section limited buyer part as contract the seller to the warranties made sale, any way designed not this Article are sections of recognized growth which of case law have disturb those lines contracts or to the be confined either to sales
warranties need not may parties They appropriate arise in other direct to such a contract. hire, of bailments for whether such circumstances such as in the ease supplying merely of con- is main contract or is bailment itself the * * *” See a contract for the sale of their contents. tainers under p. 190, Comment, :2-313, n. 2. N. J. S. 12A Prosser, Torts, ed. also, 96, 1964); 655-656 pp. (3d See § Friedman, 19.02 Liability, Products (1964); Frumer § Annotation, Vold, Sales, 1959); 454, 42a ed. p. (2d § fn. Farnsworth, A. L. R. and see “Implied 2d (1959); Cases,” 57 Colum. L. Rev. in Non-Sales Quality Warranties 653, 673-674 : (1957) solely expansion enterprises engaged for hire “The bailment justify increasing imposition warranties, at least
seems to absolute similarly they imposed upon would a seller of the extent be addition, greater typical sale, goods. In is than used reliance in the shop- spends generally for it the bailee for hire less time true that selecting goods pur- ping to be for the article than he would like *12 expects own, chased, he will usu- and since the item is not one he competent judging quality.” ally be less its and the article A sale transfers of ownership possession for the a bailment for hire transfers price; posses exchange eventual sion in for the rental and exchange contemplates of a bailment return of the article to the owner. means By be) ends that can can often reach the same business parties the user and The come to by goods achieved selling buying. and and he benefits their use enjoyment for the time being the owner. the burdens of becoming remaining without for the owner-lessor benefits the rent tem by receiving The Vold, Sales, 24. supra, p. use. porary §
We take may judicial notice of the of the busi growth ness of vehicles, motor renting trucks and cars.1 pleasure
The nature of the U-drive-it such enterprise is burden of heavy for the responsibility of lessees and for safety members of the public must be imposed it. courts upon The have long accepted fact that defective trucks and ears are instrumentalities on dangerous highways. They present great for harm potentiality to other highway users as well as to their own drivers and Therefore passengers. offering public trucks and pleasure vehicles for hire car necessarily ries with ait representation that are they fit for operation. This representation is major because both significance new and used cars and fact, trucks are rented. In as we were ad vised at oral the rental argument, rates are the same whether a new or used vehicle words, is In other supplied. the lessor 1 Mahoney, Seat,” Fortune, See “It's Hertz Itself in Driver’s 1963, p. 119. Oct. percent year “About [Hertz’] $155-million revenues last came (one long-term month) from the short-term rental hour to one and the leasing (generally years up) 35,000 18,000 two cars and up brought trucks that make the Hertz-owned fleet. Gar rental in $77 ; leasing renting trucks, million; long- million $60 and the leasing cars, term million. $14 Hertz leader in all three of * * industry, sectors of these its *. past years, industry-wide Over the five revenues increased at star- tling percent. annual rate of some 15 keeps company by getting maintenance costs low rid of its cars * * major repairs necessary before are engaged “aggressive,
449 in effect the customer says to of fitness representation for use is the whether new same the vehicle is or old. supplied therefore, From the the customer, service to standpoint law cannot between the justly accept any obliga distinction tion a assumed U-drive-it whether the vehicle company is new or old when rented. The nature of the is such business must, that the to, customer is and in ordi expected rely fact on the narily or of fitness for express implied representation Rentals, Inc., immediate Donner 147 use. v. Morse Auto Cf. 2d 577 D. So. Ct. v. Ball (Fla. 1962); U- App. Yarbrough 48 2d Drive-System, 1950). So. 82 Ct. To illus (Fla. Sup. trate, if a comes a car traveler into and needs airport short and rents one from a U-drive-it when he period agency, is in the seat” “put driver’s his reliance on the fitness of the car himto for the rental whether assigned period new used is In such usually absolute. circumstances the relationship between the for an fairly calls parties implied warranty of “5. Who Takes Oare Gas? About And What Maintenance? What Happens Requires Repairs If Trucks One Of The On The Road? * * your regularly We will fill tanks *. We take care of mainte- greasing, changes, preventive maintenance, inspections, nance oil too— plus repainting, repairs, cleanings, washings! all Most of the night, during your work is done at off hours of business. Hertz job day, days is 7 hours a week. * * * necessary repairs And it is when hold a truck for —either garage replacement in the or on the road—we vehicle at no furnish charge. fact, extra Hertz fleet maintains of brand-new trucks for emergency cargo pick-ups pp. 10, on the road!” at page says: On the booklet the last guarantees uninterrupted p. (All “Hertz Truck-Lease service." at eemphasis Hertz’.) ¡Saturday Review, following In the June 1965 issue of adver- appears: tisement roost, give complete phys- “When Hertz car comes home we it a your shiny We make sure Chevrolet or ical. bright other fine car over, why only all out. Hertz inside That’s Hertz has gumption Service, the guarantee. to offer Certified the world’s first rent-a-car plan you pays is the This assures satisfaction or you any Doctor, Lawyer, in car rental certificates. Ask $50 Indian they’ll probably agree completely Quality Chief and with Hertz: means detail.” attention to *14 car by a new use, at to that assumed
fitness for least equal the must that The such be manufacturer. content of rental during period. car will not fail the mechanically a com- that when us, before it is as obvious just the case limited or ex- rents trucks for like Contract Packers pany of transportation tended for use in its occupation periods or representation too relies on the goods, express implied it hire, vehicles for the in the business of person supplying they are fit for such use. hire, for as a in the
A bailor such U-drive-it person a in business, motor vehicles of commerce stream puts a unlike a or In fact such fashion not manufacturer retailer. to the to the vehicle he then rents buys public bailor puts car more use most highways ordinary sustained on the than The is such that the nature business purchasers. very are bailee, traveling and the employees, passengers public a harm potential danger exposed greater quantum usually vehicles than arises out sales by from defective We held in of the manu liability manufacturer. Santor the facturer be terms of strict in tort. might liability expressed Inc., J., A & M. N. Santor v. Karagheusian, supra (44 pp. Torts, also, 402A, see Restatement com (Second), 66-67); § 9-10 m, (Tent. 1964). No. By analogy ment pp. Draft rule should be made to the applicable same U-drive-it must be as bailor-bailee Such rental relationship. regarded vehicle is fit for representation accompanied on the operation public highways.
When of fit implied warranty representation how be arises, ness for should it considered viable ? Since long of the user and the to harm is if the public great exposure fails rented vehicle use during ordinary highway, be that answer must it continues rental agreed period. are The interests involved served justly only by treat public nature as an incident of the business ing obligation operator rental business must be re enterprise. with as service life garded possessing expertise respect for use. of his vehicles That expertise fitness ought put him in a better than the bailee to detect or to antici- position Moreover, flaws or pate defects or his vehicles. as fatigue between bailor for hire bailee for flaws de- fects not discoverable ordinary care in or test- inspecting to rest with ing ought just the bailor as it rests with manu- buys facturer who latent defects from components containing maker, another and installs them in the completed product, or just as it rests with retailer at the of sale point *15 And, consumer. with of a respect to failure rented vehicle from fatigue, since control of of the the lease is in the length lessor, which, such risk is one in the interest the of consum- ing as well as of the public members of the public traveling the to be highways, ought on the rental imposed business.
The warranty or representation fitness is not de pendent existence of Hertz’ upon additional to undertaking service and maintain the trucks while they were leased. That serves to undertaking instill in particularly reliance Contract upon Packers mechanical operability of the trucks through out the rental period. But the or warranty representation that the vehicles will not for fail that period into sprang existence on the of the making agreement to rent the trucks, anwas incident thereof irrespective the service and maintenance undertaking. From the of the standpoint U- company, agreement drive-it the in keep them repair important as source revenue. But, addition, fur it nishes means the protection for bailor in the discharging of the obligation warranty representation. The retained supervision and control permit Hertz to see to it that the vehi use, cles remain for lit to withdraw them from operation them if the replace estimated service life is at or ap end, or if for proaching reason any continued fitness for use is questionable.
In view of discussion foregoing of legal princi ples, necessary it becomes to decide whether the evidence ad duced at the trial is sufficient to require determination jury as whether the truck furnished by defendant was fit for use on day of the accident. areWe satisfied that the
4:52 aside plaintiff’s Putting for the
proof adequate purpose. three on had working properly claim that the brakes not been that on week, appear does it days previous successive morn- lot on the employer’s test before by Sottilare leaving Moreover, they all seemed they right. ing mishap, when and noon 7:00 a.m. functioned on the between long trip with collision avoid failed on they completely application it, Sot- although As Cintrone described the overhead trestle. brakes, going truck just kept tilare was pumping inference justify ahead. These circumstances is strengthened brakes were defective. And the inference when the that on April the Hertz foreman’s testimony in the braking brakes were as the defect reported faulty, mechanism was repaired. that the leas we are of the
Accordingly, opinion (1) implied promissory rise to a ing agreement gave continuing fit for leased trucks would be plaintiff’s lease, (2) use the duration employer’s the responsibil nature of the U-drive-it business is such that liabil of Hertz be stated terms strict ity may properly v. F. Company, tort Greeno Clark ity (cf. Equipment *16 D. and Ind. the evidence Supp. (N. 1965)), (3) a factual for as by jury created issue determination to a whether defendant Hertz had been of breach of that guilty which the collision and produced plaintiff’s warranty injury. is true that trial the issue disposed It jury - Levitt, But, and of Hertz’ as the Santor negligence. Henning reveal, not a sen cases freedom from defense to negligence to an action based on a breach of strict warranty liability liability in tort. In such actions the is strict. If the facts a defective condition a breach of the constituting appli show or a duty cable breach of truck warranty provide fit use, produces injury and condition liabil damages, Inc., A & M v. ity Karagheusian, supra exists. Santor Cf. J., Motors, N. at v. 66-67); Henningsen (44 pp. Bloomfield Inc., J., Prosser, Torts, at pp. 409-412); N. (32 supra 651-653. tort does make Strict not an supra, pp. a truck duty insurer of the person subject provide more, would safe for use. an without accident Happening a failure of such not establish There must be liability. proof of the truck or breach as shows breach of the of use. a vehicle fit for the duty period supply agreed if a around curve Eor rented vehicle was driven example, such an excessive rate of the driver lost control speed vehicle, failure of the struck the cause would not be pole, said, a issue Here, but failure of the driver. as we have factual collision exists as to whether the brakes were defective and the defect. The injuries jury resulted from the plaintiffs witnesses; must of the various upon credibility they pass about the must resolve the factual conflicts the testimony and whether a defective mech- condition of the brakes braking accident; after the must decide they anism was repaired whether the collision was occasioned defective brakes or by by see Sottilare’s failure to or to the clearance judge reasonably overhead structure. The views herein find in other expressed support analogical In v. Towmotor F. Delaney jurisdictions. Corporation, 1964), 2d 4 Cir. fork lift truck manufactured Tow- by (2 motor, an overhead made another cor- containing guard Sons, was delivered to T. a stevedore, So poration, Hogan a distributor at Towmotor’s It was delivered request. as a demonstrator so the stevedore could it out and “try ac- get with our newer quainted type Delaney, equipment.” lift, was the fork Hogan, operating employee commonly hilo, called a on a seven later and pier weeks was injured when overhead guard collapsed. of the fact spite between Towmotor and relationship plaintiffs employer sale, one of bailment and not was Towmotor was held to strict tort, and Delaney’s liaiblity judgment against it for his was sustained. injuries
No distinction in as principle regarded from resulting *17 a bailment rather than sale the fork lift truck. Judge for the Court of Friendly, speaking Appeals for the Second Circuit, indicated the Federal references to sales the cases the situa- “as a description would be considered and texts rather than as deliberate arisen commonly tion that has most has where the product to cases limitation of the principle a manu- where instances sold, excluding intentionally been of com- in the stream a defective article facturer has placed further: He said merce other means.” by rights against Delaney’s why Tow- no sensible reason “We can see had than if Towmotor facts here extensive on the motor should be less distributor, the machine than if it had sold first sold hilo to its subject payment, employer), Hogan (plaintiff’s nominal down (Insertion period.” Hogan a trial if was not satisfied after to return 2d, p. ours.) F. 6. Co., 262 F. 2d Co. Meier & In Booth v. Steamship Oelhaf machinists, contracted the Meier 1958), Company, Cir. (2 The work entailed a Booth vessel. to overhaul the engines block. from the engine liners cylinder extracting tight-fitting a rigid consisting This was done extracting equipment liner, jack attached to the bar, or which was strongback, raising strongback. used to raise the liner by which was short, it was relatively arm of the was jack Because the lifting holding the strongback necessary suspend periodically lifted up. itself was jack a wire while the strap liner from the strap parted was thus suspended, While the strongback of an fall and the thumb sever allowing strongback aboard the jack was working of Meier who employee Booth on the theory recovered a judgment against vessel. He from the resulting condition of the vessel of an unseaworthy the contractor. supplied of defective equipment presence al the Meier Company indemnity against Booth then sought breach of fitness of implied leging negligence there was no negli It agreed the extracting equipment. Meier with to the wire Booth or respect on the part gence latent; The defect was it was not one parted. which strap careful detected visual by reasonably have been which could however, court, held that supplying examination. contract, the Meier its repair Company as part equipment
455 an service, was to subject implied of workmanlike warranty and the of tbe wire parting constituted breach of the strap which warranty, established its of fault. liability regardless In the Meier to declaring Company indemnify obligated Booth for the Booth the court indicated that damages paid, the of of liability in situations such as suppliers equipment the one then under consideration should be coextensive with of the law those of sales. More specifically, Lumbard Judge said: supplier profits the “Like manufacturer or retailer the from the equipment. Although prevent
bailment or lease of his he is unable to arising manufacture, expert knowledge in defects the course of of equipment the of characteristics use should him enable to detect readily them more than the user. is It therefore not less reasonable charge duty making as an of incident his contract him with the tests, negligence, omission of which would not constitute than it is charge responsibility. the manufacturer or retailer with similar particularly supplied, We think that this is true when the chattel is presumably here, partial general as it in the fulfillment of un- dertaking repairs. make such circumstances the hirer defers to special qualifications of the contractor in both the selection and equipment. Relying supplier’s use on the control of the work supplier’s expert knowledge competence, and with confidence only inspection equipment employed. he makes at most a routine say supplier equipment merely To warrants confirms the customary relationship reliance which flows from such a and which appropriate remedy.” 2d, p. affords an 262 F. at 314. The court said also that latent defects which are undiscov- erable on visual ordinary inspection might result from defec- tive manufacture or from fatigue from use resulting over a of time. With period latter, respect “it is the supplier and not the who ship-owner knows actual history prior use He alone equipment. the position to establish such retirement schedules or periodic retests as will best pre- vent the development visually Id., undetectable flaws.” 314. p. (Emphasis added) Co.,
In Gambino v. John Lucas &
Div.
App.
N. Y.
2d 383
Div.
S.
(App.
1942), defendant leased a ma
chine to the
While in use the fuel
.plaintiff.
tank exploded
not the
injuring plaintiff. Although
manufacturer, defendant
was held liable for breach of
implied
intended.
and suitable for the use
machine was safe
one be
with the
the cited cases are not identical
Although
on sales
cases based
liability
fore us or with the many products
in tort
and strict
concepts
implied warranty
*19
we think
jurisdictions,
which are
of most
filling
reports
law
area of the
this
analogy
compelling.
developing
in principle
we
no
reason
a distinction
why
sound
perceive
em
to plaintiff’s
be made between the sale of
truck
should
hire of the character
manufacturer,
and a lease for
by
ployer
Colum.
Farnsworth, supra (57
established
the evidence.
Rev.,
L.
and
Greeno v. Clark
667-674);
Equipment
see
pp.
Michigan,
v. Powered Products
Company, supra; Simpson
Inc.,
P.
East
409,
1963);
24 Conn.
II. is no privity Defendant contends that since there cause Hertz, has no plaintiff contract between plaintiff of fitness arising action for breach of implied Obviously from the created thereby. bailment relationship Pack Hertz knew when the took Contract leasing place would the trucks as drivers or helpers. ers’ be emplo3rees using plaintiff In such situation absence of between privity Sons, Levitt & Hertz is of no v. Schipper legal consequence. Inc., Inc., v. A & M Karagheusian, supra; Santor supra; *20 Motors, Inc., v. Henningsen supra. Bloomfield Moreover, said, we have when a company, by as U-drive-it case, a such as in this makes trucks avail- lease arrangement able for rental will be to users and knowing they dangerous defective, if a exists representation members public, that are fit for such use. If occurs while they mishap they are the lessee or his which con- operated by employees being subjected a breach of that the lessor is representation, stitutes injuries to strict in tort for resultant to such em- action, In the framework of such of absence right ployees. of of contract between the and Hertz is injured person privity Prosser, Torts, immaterial. at 652. supra, p.
III. Plaintiff that argues contributory is not de- negligence an action for breach fense to and warranty, therefore it error for the trial court to submit that issue to the jury for decision.
458
There is confusion and conflict in the cases as to some whether in a warranted but defec- plaintiff’s negligence using tive article and creates bar to Various recovery. opinions texts in of the effect of speak contributory negligence, terms on the injured of risk and misuse of the assumption product recovery. been person’s suggested It has right semantics, for the most is one of and that problem largely decisions can be reconciled. part apparently conflicting conclusion: Prosser’s of the cases led him to this study examined, readily appears “If those which re- the cases are it plaintiff negli- to allow the been cases in which the fuse defense have product, guard against gently failed to discover the defect in the possibility They entirely consistent with the of its are existence. general negligence rule that such is not a defense to an action founded upon liability. permitted Those which have the defense all have strict plaintiff and in been cases which the has discovered the defect proceeded product. danger, and has nevertheless to make use of the They represent contributory negligence which consists of the form deliberately unreasonably proceeding to encounter a known dan- assumption They ger, overlaps quite of risk. are consistent with liability. general this is a rule defense strict There are only recognized distinction; have cases which but it seems few Prosser, Torts, supra, pp. quite clear that it made fact.” 656- 657. Wade, Manufacturers,” And see “Strict Tort Liability 5, Keeton, L. J. 21-22 Products Sw. (1965); “Assumption Fried- Risks,” L. J. Sw. 66-75 1 Frumer (1965); man, Products 16.01 Liability, supra, § [3]. n to 402A Draft
Comment of the Tentative No. § Restatement the Prosser (Second), Torts (1964), accepts note, view. And “The Contributory Negligence see Role of Note, Actions,” L. 36 So. Cal. Rev. 490 Warranty (1963); Law,” 15 Fla. L. U. “Contributory Warranty Negligence *21 Attractions, also, Rev. 85 Arena Meistrich v. Casino (1962); Inc., 44, 49, 31 N. J. 56 (1959). the
There is no need to pursue specifics prob lem are the evidence ad this case. We satisfied length duced issue of justified jury contribu- submitting he said above, tory plaintiff As we have detailed negligence. days the three end each of reported brakes at the faulty the truck which he drove week to the accident on previous clearly testimony But the question. credibility of any complaints issue. Hertz had no record of the alleged infer- likewise accident. It is to the brakes before the repairs of the A.Y.D. able that had no copies Cintrone’s employer him, none was produced forms made out because allegedly by ef- Moreover, was offered to show testimony at the trial. no re- or to from his by employer forts Cintrone to obtain them their it Accordingly, open as evidence. quire production he find brakes were defective jury to although True, did not it to Hertz or to his Sottilare employer. report brakes before he drove said Cintrone told him about the faulty to be they the truck from the and that on test yard, appeared However, in his Cintrone made no such statement working. not to believe testimony. jury was Sottilare’s obliged neither the assertion, and could have concluded that alleged Cintrone, by nor the brake test alleged communication addition, have ac- Sottilare took place. jury might of the Hertz foreman’s testimony cepted portion after the acci- defect in the mechanism was braking repaired dent. all of could have concluded the
From this proof jury defective, knew for some days brakes were that Cintrone it condition, and before accident but neglected report he rode in the loaded truck for sev- that with such knowledge until the brakes failed and caused truck to col- eral hours On an ulti- lide with the overhead structure. such finding e., i. with knowl- conclusion was that Cintrone possible, mate the defective failed to brakes danger presented edge which a safety reasonably care for his own prudent take the Therefore, have taken under the circumstances. would person for the trial court to have re- have been improper it would from con- contributory negligence jury moved the defense sideration.
460
IV. defendant is the stated, For the reasons the for judgment to be had reversed, remanded for a new trial and the cause is in accordance with the views outlined. a new lessor of I that the agree J. (concurring).
Proctor, for defects liability or used vehicle should be to strict subject posses- the in the vehicle at the time lessee existing acquires cannot, however, majority I with sion. agree part de- for any which the lessor will be liable states that opinion such period which arises where leasing period fect during an extended time. is for length for cor I is a practice understand that there developing for a year and individuals to lease new vehicles porations for It would more, and themselves maintenance. provide should liability seem that in such a the lessor’s be situation vehicle—lia than that of the manufacturer of the no greater when for caused defect which existed injuries bility v. Min left the manufacturer’s Jakubowski vehicle control. J. nesota N. Mining Manufacturing, (1964). lease, lessor’s in this which so type is different case, the one before us in the not present from should be determined now. here
The record indicates that there be- was agreement lessor that the lessor tween the and lessee would be responsible short, all maintenance and repairs. for lessor assumed vehicle in a safe obligation keep running condition. that end the To lessor control of the vehicle at regained end of each when it was day at its “gassed up” garage. Ap- only obligation lessee’s was to parently, notify lessor defects. circumstances, of known In these the situation is the as if the vehicle were leased anew same each from day I lessor. Thus think new fitness use on the came into at the of each highways being beginning working I therefore with that part of the day. disagree dissenting which lease separates original from the opinion servicing of a components mincl were they integral To my agreement. single agreement inseparable. credibility its
There evidence in the case (although *23 for several were defective somewhat that the brakes suspect) notified so accident, and that the plaintiff to the days prior evidence this and other the lessor on three occasions. From have found could in majority jury set out opinion of the in at the beginning that there was defect the brakes that the on which the accident happened; worldng day injuries. in caused the accident resulting plaintiff’s defect have been submitted warranty Thus the issue should contributory discussion of I with the jury. majority’s agree reached I concur in the result therefore negligence. majority. in terms of holds majority J. The (dissenting).
Hall,
Inc.,
M
tort,
strict
in
v. A & Karagheusian,
Santor
liability
gave
44 N. J.
63-67
that “the
(1965),
leasing agreement
warranty [by
to a
promissory
rise
continuing implied
em-
that the leased
would be fit for plaintiff’s
trucks
lessor]
use is
for the duration of the lease.” Fitness for
ployer’s use
stated mean “that
car will not fail mechanically during
may
liability
the rental
The failure
rise to
period.”
giving
in manufacture or
come from
cause whatever —a defect
any
and subse-
some condition
design,
developing independently
in
whether or not
care
in-
by ordinary
discoverable
quently,
and even from
or
out. It
spection
testing,
fatigue
wearing
is made
whether
for one
or a
day
the lease is
plain
period
new
jTars, whether the rented vehicle is
or used or whether
the lessor undertakes to service and maintain it
during
far
lease makes no difference as
as the nature and extent of
is concerned. I
also that
liability
any attempt
assume
limit
contract would be found unavail-
responsibility by
leasing
It therefore seems to me it has to be said that the
ing.
effect
is to make the
vehicle
majority opinion
supplier
insuror,
for hire
at
practically
policy
least as
grounds,
lessee,
far as the
are
employees
passengers
concerned,
failure during
mechanical
any
for the consequences
was the
course,
proximate
that the failure
lease,
assuming,
was not
that the plaintiff
injury
damage
cause of
I
the outset that
fault.
may say
guilty
contributory
(I
to commercial
liability
have no
with
strict
extending
quarrel
sales,
many
in this
when
day
other than outright
transactions
or including
are rented for use rather than purchased,
articles
the lessee
beyond
the beneficiaries of the doctrine those
among
in
mentioned.)
himself
the categories
field,
law in this
in the
development
to this
Up
point
far
I have been able to
and elsewhere as
as
both
this State
determine,
only
has been
imposed
strict
tort
manufacture or design
case of a
defect in
damage-causing
it left the hands of the manufacturer or
at the time
existing
to be
so-called
charged.
supplier sought
Inc.,
v.
not
one.
Motors.
Henningsen
promissory
Bloomfield
J.
Courtois v. General Motors Corp.,
*24
N.
358 (1960);
Minnesota
and
Mining
N. J. 525
Jakubowski
(1962);
v.
42 N. J.
v. A & M
177
Santor
Manufacturing,
(1964);
Inc.,
J.
v. Levitt
N.
Karagheusian,
supra
52); Schipper
(44
Sons, Inc.,
&
44 N. J. 70
For
cases else
leading
(1965).
Inc.,
Products,
where, see, e. Greenman v. Yuba Power
59
g.,
697,
27
P. 2d 897
Ct. 1962);
Cal. 2d
Cal.
Rptr.
(Sup.
F. 2d 911
Putman v. Erie
City Manufacturing Company,
1964).
in the bail
liability
Cir.
This was also the basis of
(5
v.
The “defect” criterion does offer difficulties which have become in the of the lia practical application strict apparent a ? doctrine. What is “defect” How is it related to the bility usual or life of the article and its and expected quality price? We have earlier had occasion at least to mention and make Courtois, comment on these ramifications. some See supra J., Jakubowski, J., 185) N. at N. supra at p. 543), (42 p. (37 Santor, J.,N. 67). And courts are supra (44 p. still with the difficult grappling problem basis- and extent a of strict the seller of used liability chattel. Granted against hire, also in the case a lease vehicle for not of motor are only problems mentioned just present frequently measure, but in addition we have complicated particularly im- reliance the lessee on the lessor as well as the great by factor of mechanism portant potentially dangerous placing in the stream of traffic. While highway responsibility one, such a should commensurately lessor be a and the heavy matter of how to define and an certainly easy limit it is not matter, it to be as from question, ought approached, policy all Not balancing the interests involved. to standpoint be overlooked is the obvious economic on this impact particu- lar service in the industry function it light important has come serve in view, today’s society. my majority too far in goes strict for all leased vehicle imposing liability — failures of cause than irrespective much burden greater has been far so imposed any analogous entrepreneur.
I would think that would fair it be both adequate say that vehicle renter ought subject to be strict “defects,” tort for consequences the Henningsen word, sense of that at the existing time each particular rental and should be liable for only happenings during lease occasioned other than such “defects” on a negligence e.j basis, i. lack of reasonable care in inspection, or re- repair placement preventive maintenance prior particular lease the course of it (or during when the rental an ex- tended one and the lessor undertakes the obligation periodic Indeed, service and maintenance during period). un- lessor to service dertaking and maintain the trucks the lease during be period might of as thought negating any A complete warranty. rented motor vehicle is hardly compar- *25 able to absolute liability the of situations explosives or pack- food bottled aged drugs. Many to an things happen auto- use, mobile during including sudden and spontaneous brake failure, which can be neither connected with defective manu- facture the prevented nor most careful by prior servicing, and such seem even more happenings likely to occur when the driver not the owner but merely hiring transportation. If railroad a lessee of a were to bus public
the car ride on under not be would instead, train the transportation company what if no matter injured, him he were absolute to liability exercising cause, subject only duty the but would be a impose a It me to degree unjustified of care. seems to high car much in the rented situation. greater so obligation circum- hand, the with case the Dealing specifically to that this ought are that I do think Court stances such not plaintiff’s The warranty theory. presentation consider the com- he it. While the case to me that had abandoned indicates “vehi- the only a count alleging contained second plaint thereof, and the pre- cle was fit and for use” and a breach safe it to the but tied expressly trial order contention repeated ** * said “the rental to keep contract of undertaking no and counsel made repair,” vehicle order good plaintiff’s the trial pointed mention at all of it in his opening (as judge of ordi- and with only duty dealt out) negligence—breach care in maintenance and nary repair. dur- have been
Nothing duty appears thought but that to case until defendant moved to strike plaintiff’s ing count at the conclusion of evidence plaintiff’s (deci- reserved trial and judge sion on which was granted sides had Plaintiff’s concluded). after on both been proofs were to I doubt that warranty theory not directed proofs make a case thereon. at the they presentation out (Indeed was and the trial level on both sides evidence superficial sparse on which to consider determine landmark legal princi- the ease be appears this because ple. Perhaps quite one, $3.00 trivial bill plaintiff having only hospital with the started out-of-pocket but small other suit expenses, statute limitations day on the before the would have barred lease which to ground The terms of the thesis of upon it.) not Although majority strict were introduced. to, the real line they only proofs were testified this says along case from the foreman night came on defendant’s of defend- solely who Jersey City garage spoke ant’s servicing Hertz trucks used by with respect plaintiff’s practices it necessary finds in a majority book- employees. bring *26 circulated by let defendant about its truck service leasing evidence, which is not in as well as a article and magazine advertisement, all after this lease and accident. published long Moreover, me, it seems to offered no sufficient plaintiff was, evidence what the failure mechanical or defect alleged proofs such should have been although available de through if the fendant’s records failure had occurred. I actually had Jakubowski, that under our in thought decision supra (42 J., at N. at this minimum pp. 183-184), least quantum direct or inferential proof required plaintiff any all, strict case. All in warranty theory projected on this is at appeal only best fortuitous circumstance.
Nor would be plaintiff prejudiced, if my opinion, this Court declined consider it. The case, issue in primary which the trial court charged jury first, determine was e., about, what accident i. brought the fact question whether driver was to take an trying eleven-foot-high truck through overpass having clearance of only nine and one-half feet and any brake failure had nothing to do with the accident. The nature the jury for fur request instructions is as well ther open that an interpretation affirmative answer to this was basis question of its general verdict of no cause of action —a result which the could jury reach under the very While I properly proofs. fully appre ciate that an appellate may court not ordinarily weigh evidence, it does not reverse and order second trial unless a been R. prejudicial, trial error has R. 1:5-3 (b), and in de it looks ciding question, realities of a situation. do I see no Not error only here, but, circumstances were, if not even there plaintiff harmed.
I would affirm the of the trial judgment court. J.,
Haneman, in this joins dissent. J., in result. Proctor, concurring — For reversal Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino —5.
For Hall and Haneman —2. affirmance—Justices notes The article has Hertz insistent advertising.” advertising agency slogan, An devised the “Let Hertz put yon seat,” in the driver’s and it “has been dinned into the ears of Id., p. hardly TV audiences ever since.” 228. One can conceive persuasive representation may rely a more that lessees on Hertz vehi- being cles as fit for use. leasing A Hertz illustrated booklet about its truck service entitled Service,” “You Me The Questions ask About Hertz Truck Lease issued System, says: (1963) Hertz Inc. Why “1. should We Lease Trucks? * * * give you you provide [W]e can far better service than can yourself plus complete responsibilities freedom from the of truck pp. operation.” at 2-3