*1 alteration “Material note, affecting avoids as debt for Baylie KATZ, Appellant, E. security And given, note therefor.” v. 32, Am.Jur.2d, see 4 Kansas 31. The City, Kansas Jack SLADE cases are above annotation collected Equipment Toro Com- Missouri and text, compare see and v. Hocknell Respondents. pany, 839; Wyant Sheley, 66 Kan. v. 71 P. No. 54605. Russell, 260; 141 Kan. 44 P.2d Na- Davies, Topeka tional Bank of v. 143 Kan. Supreme Missouri, Court of 82; Edington McLeod, 87 Division No. 1. v. Simpson 163 and v. Kan. 124 P. Dec. Sheley, Kan.App. P. 1098. indicated, is necessary
As theory
consider these cases and
detail, procedural policy; as a matter of
“It remains to consider the contention of
plaintiff that per- the court should have theory
mitted him recover on the
quantum meruit. Plaintiff did not seek
recovery theory. pleaded on He
contract, sup- submitted his evidence
port theory no evi- submitted support recovery
dence would
quantum plaintiff present meruit must appeal the same presented it was trial court. having
The trial opportunity passing upon now for the presented
first time cannot be failing
error to do that which it was requested to do.” Duro v. Weiss Cir.,
Chrome 207 F.2d Scholl, Mo.App.,
Herrmann v.
635; Stepp Livingston, Mo.App. Hood, Mo.App.
Alford v. 256 S.W. Richard, Allen v. 83 Mo.
In accordance judg- with these views the
ment is affirmed.
STOCKARD, C., not sitting.
PRITCHARD, C., concurs.
PER CURIAM: BARRETT, opinion foregoing
G, adopted the court. Judges
All concur. *2 periods
The rentals short were for of time —for or 18 playing golf holes —and on the golf for use course. maintained, city repaired The checked and foursome, golf A for carts. whom fees, paid play greens started to Katz course, city golf using holes of on the two golf Snyder and one rented Katz carts. carts, drove to the first tee one of the paid the for which Katz had rental fee. dismounted, the back of the Katz went to play for from his equipment car remove bag the rack at the rear golf which was on Slade, a member of the cart. Jack foursome, fee on the second paid the rental Cooper and one left 4). cart (No. Slade approached number the clubhouse and tee, driving Cooper one with Slade riding passenger a cart No. 4. Katz cart, behind the other standing Balkin, Achtenberg, Lloyd Sandler & S. oncoming cart. Slade his back toward Heilman, City, plaintiff-appel- Kansas slightly on the drove cart No. 4 downhill lant. carts, asphalt path provided for the coasted incline, approached place down the Wilson, Acting City Aaron A. Jr., Coun- standing. Slade testified Katz was where selor, Dakopolos, Robert A. Thomas C. the cart un- stop he but was tried Counselor, Clark, City, City Asst. Kansas bumper front of cart to do able so and the respondent. in the rear across No. struck Katz pressed when he legs; calf both HOUSER, Commissioner. pedal there were down on the brake brakes; pedal clear pressed that he This is an Baylie action E. Katz brakes; that he the floor and still had no against Slade, of Kansas Jack yelled it was too “No brakes” late. City and Toro Equipment Company for Cooper that when the brakes were testified $20,000 damages personal injuries al- effect; “very limited” there was leged to have been prepar- sustained while there some deceleration but not ing play golf on the Minor Park Golf extent; dragging.” After the “it was like Course, a facility operat- owned and cart to the accident he drove the back ed the city. By stipulation the case was swung he into the parking area. When as to dismissed defendants Slade and Toro. speed” parking he “didn’t have much area Following an judgment adverse after a —was 3 m. when 4 or h. going jury trial of against city, his case pressed He the brakes feet the wall. has appealed. “normal, They hard manner.” did slowing effect but did lock. had a was invited to use golf cart, stop bumped into the upon payment course greens fees. The policeman was called to the A wall. city pro conducted a shop premises on the cart 4 after the scene took a ride in No. and owned and rented golf electric carts trip that in a He over accident. testified general for use public in playing the golf pro, driving the the same terrain the game. The fees for use of the cart, golf stepped There was def- on the brake. comparable carts were to fees charged golf various other go initely clubs a did not (the pedal area. brake improperly floor). heard the brake en- cart with maintained or The officer of, ground, grinding faulty dangerous a gage. “It a sort breaks is instrumentali- ty. Paragraph you could and then all of a sudden was based hear stop”; abrupt we came to an wheels maintained nuisance locked, wrongfully permitting a considera- cart to but the cart “traveled defective *3 operated premises. than it have.” be its ble distance further should * on “ * * report that the His the jury theory Katz went to the had stop only brakes after it would strict tort Instruction No. with them a considerable distance traveled patterned adapted after from MAI 25.- testified that applied.” The officer further city’s gave request 03. At the the the feet after cart went more than 10-15 Instruction No. follows: “Your ver- it grabbed the brakes were before you dict must be for unless be- defendant brakes, mak- all of the time locked the lieve the brakes failed on cart No. Testimony ing braking. a noise and as a direct result this defendant’s fail- city’s indicated elicited from the witnesses ordinary ure to exercise care.” purchased that 4 had new cart No. been appeal is that point Katz’ sole July and had been in use from 1966to the it giving the 7 because court erred No. February, date of the occurrence in the im erroneously imposed upon Katz person responsible for the mainte- the establishing failure ex proper burden of nance of the carts a Mr. Biddle was case submitted ordinary ercise care mechanic; not a that the had was club liability, and that No. 7 the of strict basis ability responsible for one with mechanical This instruction. is not a true converse carts; testing adjustments the that no had Austin v. be sustained under point must linkage been on the the foot made between Co., Mo.Sup., 421 S. Supply Auto Western pedal pad calipers; and the brake pur No. 7 these reasons: there had been no the acci- occasion before elements not converse ports to but does the linkage; linkage adjust dent to use caus intended for the unfitness adjustment, get during out of but that foreign new and injects a ation. Instead 4 no check the time the had cart No. club e., city ex element, i. the failure made; linkage that “the had been That element ordinary care. ercise morning in the inspection the man liabili on strict to a submission extraneous inspection to make sure makes is a visual by engrafting the issue ty. It confused (on out up are and he drives it tires liability in tort strict submission on onto stops level place) and it.” negli any theory of is unrelated (which city exer question gence) petition charged Paragraph 3 of Katz’ been en If ordinary Katz cised care. to maintain negligent failure city with theory chosen on the to submit titled cart; check proper failure care of have im complained of would instruction brakes; proper to maintain its failure his, for in a burden upon him posed cart; renting the service records on the plaintiff need all that knowledge that cart to Slade with negli (not and causation is defect show stop unable faulty brakes preju misdirection This was gence). distance, reasonable, ordinary, cart in an jury it enabled nature because dicial totally inoperative. partially or and were a false on the basis the case determine warranty of Paragraph alleged breach of issue. city part fitness of use on suggestion city’s is no merit Paragraph 5 There question. renting the cart of2 In- paragraph language by the use city permitted Slade’s that the introduced 21 Katz No. hire, that a struction cart, knowledge known “Second, by using defendant ordinary knew or care of shouldhave for which [*] [*] » [*] said golf cart #4 rented, aof is the owner-lessor poration therefore ordinary standard of care and when injuries in fail- sustained actually negligence golf cart submitted being operated the vehicle ordinary care to eliminate struck while ing to exercise a de- a result of party-lessee, as Obviously paragraph by a third brakes. defective in- its unfit for knowledge rendering the vehicle fect only to the element referred the use to which tended use. part of the on the not serve to to be and did the cart was determining we look postulate negligence. de- policy underlying the basic reasons however, city, urges that under require- abrogating the cisions in State Katz was not entitled law and evidence implied war- privity of contract ment of lia- on the submit liability in imposing strict ranty cases and
bility in tort. is ab- in that element tort in cases which assigned: have been reasons sent. Various writing of the To this the beneficiaries the re- reshape the to conform to law to liability of strict in tort in this State rule interest quirements of modern life pur- ultimate have been restricted to the modify re- the harsh justice; of social chasers, and users these consumers of emp- of caveat flowing from the rule sults products.2 purchaser, Katz was not a con- tor; majority to the justice to afford product. He was a sumer or user well-being, citizenry whose the consumer bystander. Although golf cart he rented a great in de- dependent and lives are health carrying did not rent two foursome he manufac- gree upon processed food and liability the cart which struck him. Strict articles, safety of or the fitness tured in imposed in tort to this date has been- little ordinary consumer knows which manufacturers, this State food processor or manufac- than that the other retailers, bottlers, packagers beverage and as fit to the holds them out turer operators— and wholesalers restaurant use; placing their by so and safe for engaged manufacturing, preparing, in those con- under modern products on market distributing, selling products supplying and merchandising, with the retail ditions of endanger safety property or advertising, manufacturers widespread public. It has never been in encouraging purchase suppliers are and involving State situations mutual to the con- products representing their bailments, benefit or rentals of the leases products are suita- suming public that their products industry. Katz calls Now use; that the burden ble and safe for upon enlarge this Court the class of upon the use of defective consequent losses may beneficiaries avail themselves borne those who articles should be the rule includ- equitable distri- danger or make control the ing bystanders, enlarge and to the class losses; losses such bution parties liable thereunder include others by manufacturers and sell- should be borne manufacturers, sellers, specif- than etc. and industry products of marketing the ers ically question include be- lessors. by injured persons powerless rather than us, therefore, fore under the whether Dayton protect themselves. Keener v. bystander may case a circumstances Co., Mo.Sup. 445 Mfg. (1969) Electric S. damages under the doctrine of recover Appliance municipal 362 Morrow v. Caloric tort from a cor- W.2d 402A, Torts, 2d, adjudicated bystander 2 2. the case of a Restatement Law of § We Hays Co., Supply v. Western Auto follows: Liability Special 877, Mo.Sup., 405 tacit 402A. Seller “§ S.W.2d Physical implied agreement Harm Product of defendant plaintiff. warranty to User Consumer extended to that (1) product de- One sells unreasonably danger- expressly adopted fective condition In which this Court consumer to his ous to user or rule of strict 612 protecting the the cost recover 41; Worley v. Corp., Mo.Sup., 372 S.W.2d through it in their business Co., Mo.App. charging Mfg. 241 Proctor & Gamble rental. adjustment an
1114, Kan- Madouros v. 253 S.W.2d Co., expose the others said to bailee Bottling sas Coca-Cola than defective vehicles 275, greater risk from Comments App. 445. See A., sales the manufac- usually arises out of following Restatement f. c. and Price, found supra, 2d, résumé In condensed turer. Law of Torts for a the doctrine difficulty applying underlying policy reasons. today’s society “In of motor vehicles lessor jurisdictions in other Several courts renting growth ‘the of the business of upon passed vehicles, cars’ pleasure trucks motor extended should adver- persistent (Cintrone, supra) manufacturers, suppliers, In beyond etc. one ‘in the driver’s tising efforts to Leasing, Hertz Truck Cintrone v. ” * * 85 Cal. 777) at *. seat’ {id. 434, Mc 212 A.2d (1965) N.J. Rptr., 1 1.c. 466 P.2d c. Rental Co. Bayshore Equipment Claflin Lechuga, Montgomery Cal.Rptr. Inc. v. Cal.App.2d Ariz.App. majority 467 P.2d Price v. Shell Oil unnecessary pass found Cal.Rptr. Cal.3d *5 in the question, judge concurring the but a ex- the in tort was expansion favoring stated views result tended to include bailors and lessors. courts, lessors, policy seeing eight rule to listing Jersey and California New reasons, of reasoning of and the nature sellers no essential difference between personal the defect and not the nature the trans- property and personal lessors is, importance; action is the matter of employed policy the consid- property, same the is the of either imposition defect result justify erations used to sellers, manufacturers, design or manufacture. upon in the leases involved New Jer- instance has found which No been sey and made in the California cases were this extension of the rule has been active, as a marketing course full-time noncommercial, municipally-owned, to a part going of a not on a cas- business and nonprofit facility maintained amusement basis. ual The lessors those cases were public. for the use the commercial-type typical engaged lessors distributing goods the the business to In two cases courts refused other public. They placed other the leased articles the include parties to extend rule to and, the Jersey market the Speyer, New court than sellers. Humble Inc. v. expressed W.D.Pa., the Refining leased vehicles “in the Oil (1967) & Cir., stream of F.2d F.Supp. commerce not unlike a manufac- 3d (1968) aff’d company turer or They integral plaintiffs retailer.” were “an the oil sued * * * fire part marketing arising the property damages overall out enterprise in- by pump that should bear the cost of gasoline caused a defective products,” plaintiffs juries resulting company purchased from defective McClaflin, held supra, position and to and back them. The leased to
property is The rule Subsection to physical thereby applies although harm caused pos- (a) consumer, all ultimate user or the seller has exercised or to his preparation property, and sale care in if sible (a) product, engaged the seller is in the of his busi- (b) selling product, has ness consumer user or such a (b) product expected bought in- from or entered is and does reach any relation user contractual or consumer without substan- change tial in the seller.” condition it is sold. strictly not in the business incidental and collateral that Humble was conven- a “seller” within are selling pumps solely and was not ience. rented for use course, time, meaning periods 402A the Restatement. short Coop for small In Freitas v. Twin Fisherman’s fees. There is no indication that Tex.Civ.App., patrons 452 S. Ass’n are stimulated or erative induced rent lad fell when a widespread advertising. a truck driver There is el- top of leading an platform ement patron, der of forced reliance or suddenly filling anything prevent pro- oil tank which he that there is by an constructed spective The ladder was inspecting trying moved. user from or out employed by independent contractor Gulf hiring may carts before It not in one. City. it to Twin Company, which leased Oil realistic sense be said that is an strict liabil- operation The court held that the rule of essentially commercial in charac- apply persons merely ter, ity does not or that “marketing” of these engaged carts, construct items but are not leasing a mass part of them as a them; selling Gulf business marketing enterprise, over-all aor tanks, selling ladders the business of commercial distribution profit-making platforms; that there must be a sale be- concern to a forced depend imposed; fore strict representation that the carts indicated that the transaction which the are suitable and safe for use. The trans- product is transmitted into the stream action closely more resembles a license essentially commerce must be commercial lease; than a the “renter” is more like the in character. patron buys a ticket to ride aon mer-
ry-go-round than he who leases a Hertz Drive-Ur-Self automobile for a weekend background In this we find no or a week of travel high- compelling impose reasons to absolute lia ways. Traditionally imposed the law has bility upon city. Under the circum *6 upon proprietors places amuse- pre stances of case we adhere to the ment duty of exercising degree holdings restricting application vious care reasonably commensurate with the liability in rule of strict mass character game amusement or producers products and distributors presented played place, within the industry. jurisdictions In other where they have not been held insurers of they the rule has been extended lessors the safety invitees, Thompson v. Sunset placing been mass lessors4 their Country Club, Mo.App., 227 S.W.2d products in the stream of as an commerce 525; page numerous cases cited on integral part marketing of the over-all en Shows, 26A Mo.Dig. <®=56(2), Theaters and terprise. They have been commercial dis and we see no reason this salu to disturb large engaging prof tributors on a scale in tary injured rights persons The rule. it-making organized businesses for eco by golf carts in the circumstances of gain. widely, nomic have advertised fully affording protected by case will be holding out offerings their as suitable and them relief rules of under the established safe for use members of the negligence have hereto are relatively powerless protect them governed fore transactions. Gifford such selves. municipally contrast this is a Club, Country Bogey v. Hills Golf operated, nonprofit, recreational 98; Inc., v. Mo.Sup., 426 Schamel S.W.2d facility amusement course. Golf —a Corp., Mo.App., 324 S.W. Arena St. Louis supplied carts are patrons those de them, sire operation, to use as a casual 2d 375. produc- Conroy supra, applies 10 to the “mass v. Brewster Ave. N.J.Super. 234 A.2d er” or “mass lessor.” holds Leasing, Cintrone Hertz Truck v. city is not PER CURIAM: in this case
Since tort we do C., HOUSER, foregoing opinion by The by- question whether the further not decide adopted opinion the court. as the rule. may avail themselves standers v. Elmore curious are referred to HOLMAN, SEILER, J., con- J., and P. Corp. Cal.2d American Motors cur. 618, 623-624, Cal.Rptr. 578, 615, Motor Darryl Ford v. P.2d Elmore Tex.Sup., BARDGETT, in result J., concurs Corp. (1969) Motors 75 Cal.
v. American separate opinion filed. Rptr. 652, Products “Strict Liability Bystander,” and the BARDGETT, part Judge (concurring Columbia Law Review and Comment dissenting part). Law following on Caveat 2 Restatement o. 402A, Torts 2d I result of reversal concur final case because error
and remand in this as remains dissent respectfully I in instruction No. 7. proper disposition appeal. of this portion majority assignments primary negli made several one of is not holds that this cause gence petition tort, in addition to the my liability in it is view strict charge warranty. of breach of The evi to this apply in tort does pri dence discloses a submissible case of case.
mary negligence. Katz’ counsel evidently misconceived the law and jury
submitted the the mis
taken belief that the rule of strict applicable. appears This
have been misadventure based a mis legal
taken theory in a situation akin to Coleman, ruled on in Blaser v. of Missouri, Respondent, STATE and East v. S.W.2d McMenamy, Mo.Sup., 266 S.W.2d *7 primary rather than an abandonment of his SWEAZEA, Appellant. Milburn John negligence assignments secure a strate No. 54833. gic advantage, as found in Smith v. St. Missouri, Supreme Court Co., Louis Pub. Serv. 364 Mo. 259 S. No. 1. Division M., Chicago, Hunt & St. P. 14, 1970. Dec. Co., R. P. Farmington Stone v. Aviation 363 Mo. S.W.2d 810. the exer
cise of our discretion we remand the case
for trial of primary negli the issues on
gence, notwithstanding Katz abandoned for being charges neg time of primary
ligence. (en banc), Blaser v. Coleman su
pra.
Judgment reversed and cause remanded
for a new trial. HIGGINS, CC., concur.
WELBORN