McNEAL v. GREENBERG

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District Court of Appeal, Second District, Division 1, California.

McNEAL v. GREENBERG et al.*

Civ. 18795.

Decided: December 11, 1952

Chester S. Johnson, Los Angeles, Jerry Geisler and Harold C. Holland, Beverly Hills, for appellant. Parker, Stanbury, Reese & McGee, Raymond G. Stanbury, Los Angeles, for respondents.

This appeal by plaintiff from a judgment entered upon a directed verdict in favor of defendants presents an evidentiary problem involving the liability of the renter or bailor of personal property for damage sustained by the rentee or bailee caused by a defect in the particular personal property, it being the theory of the plaintiff that the defendants impliedly warranted that the property rented was fit for the purpose for which it was rented.

Appellant, a grading and paving contractor, rented from respondents, who were in the business of renting out various types of construction equipment, a machine commonly known as a ‘skip loader’, a self-propelled vehicle used for grading and leveling of land. This machine had two small front wheels and two large rear wheels, all equipped with pneumatic tires. A ‘blade’ or scraper which could be raised or lowered was affixed to the rear of the machine, while at the front there was attached a maneuverable ‘bucket’ or ‘scoop’. Appellant proceeded to use the skip loader to grade a hillside lot in West Los Angeles which had a slope of from 20 to 30 degrees. At the lower end of the lot being graded there was an almost vertical drop of from 8 to 10 feet to the level of the adjacent lot. In the course of appellant's operations the skip loader rolled backwards over the declivity to the lot below, pinning appellant against a building in course of construction on the lower lot. For the injuries so resulting appellant sought damages, charging in one cause of action that respondents failed to furnish equipment in mechanically sound condition and failed properly to inspect, test or repair the same, and by a second cause of action charged breach of warranty that the equipment was fit for the purpose for which it was hired. Specifically, it was charged that the brakes on the vehicle were defective and gave way, with the result that the equipment could not be controlled.

The defendants pleaded that they used due and proper care in inspecting, testing and maintaining the equipment; that the equipment was at all times in sound condition; that the accident was proximately caused by the negligence of plaintiff; and, further, that at the time of the hiring of the equipment the plaintiff acknowledged to the defendants that he had examined the equipment and knew of the condition thereof, and that the same was in good condition and repair.

At the close of the presentation of evidence by both sides, the trial court directed a verdict for the defendants. This situation therefore presents a problem in the application of the settled rule that a nonsuit or directed verdict may be granted only when, disregarding the fact that the evidence may be in conflict, and giving to plaintiff's evidence all the value to which it may be legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict for the plaintiff if such a verdict were given. Estate of Flood, 217 Cal. 763, 768, 21 P.2d 579.

Upon a motion for a directed verdict neither the trial court nor this court is concerned with the credibility of plaintiff's testimony that the brakes failed to hold, nor with the value of the evidence presented to contradict such testimony. It is for the jury to find not only the facts but the inferences to be drawn therefrom, Hamilton v. Pac. Electric Ry. Co., 12 Cal.2d 598, 601, 86 P.2d 829, and where different conclusions may be reasonably drawn by different minds from the same evidence, the decision must be left to the triers of fact. Martin v. Fox West Coast Theaters Corp., 41 Cal.App.2d 925, 108 P.2d 29. ‘Unless it can be said that, as a matter of law, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that an appellate court would be impelled to reverse it upon appeal the Court is not justified in taking it from the jury.’ Hunt v. United Bank & Trust Co., 210 Cal. 108, 291 P. 184, 188.

The plaintiff testified that when he appeared at defendants' yard and asked for a skip loader he was told that none was available and that he would have to wait for one ‘to come in off a job.’ After a short wait, he was told that one was available and he found it still mounted on a trailer. No inspection of the equipment was made at the time it was delivered to the plaintiff, and he had no knowledge as to whether the equipment had been inspected before he saw it, whether it had been inspected at another yard of defendants', whether it had just come off another job, or whether it had come from another yard. He ‘surmised’ that it had come off another job.

The motion for directed verdict was made upon the following grounds:

(1) There is no evidence of negligence on the part of respondents.

(2) There is no evidence of any defect in the brakes at the time of delivery and thus no evidence of breach of warranty.

(3) There is no evidence of any discoverable defect in the brakes at the time of delivery and thus no evidence of negligence or breach of warranty.

(4) There is no evidence that appellant relied upon any representation by respondents, express or implied, and thus no evidence of breach of warranty.

(5) The written contract precludes the existence of any warranty.

If, irrespective of the reasons given by the trial court for its action, the directed verdict was properly granted upon any substantial theory, the judgment should be affirmed. Hohnemann v. Pacific Gas & Electric Co., 35 Cal.App.2d 597, 601, 96 P.2d 350.

In the instant case, though the evidence be viewed in the light most unfavorable to appellant, all that could be said was that the latter could have or may have inferred from the facts that the skip-loader may not have been inspected. But the conclusion that appellant did not rely upon any inspection or upon the condition of the equipment requires that such conclusion be drawn from an inference founded upon an inference. Such a course of reasoning is not permitted by law. Code Civ.Proc. §§ 1958, 1960; Hamilton v. Pacific Electric Ry. Co., 12 Cal.2d 598, 601, 86 P.2d 829.

In considering the question of whether appellant has established a prima facie case under the theory of implied warranty, the general rule with reference thereto in connection with bailments and the responsibility of the bailor is that the latter impliedly warrants that the thing hired is of the character and in the condition to be used as contemplated by the contract. The bailor is liable for damages occasioned by faults or defects of the article hired of which he ought to have known or as a reasonable man had a duty to ascertain. That this is the rule finds support in the case of Dam v. Lake Aliso Riding School, 6 Cal.2d 395, 57 P.2d 1315, 1317, where the court said:

‘In his contract of hiring, he impliedly engages that he knows, or has exercised reasonable care to ascertain, the habits of his horses, and says to his customer that the horse which he lets is safe and suitable for the purpose for which he has hired it. His warranty is against defects or vicious habits, which he knows, or by the exercise of proper care could know; and, if he fails to exercise such care, and it occasions injury to his customer, he will not be relieved of liability, though he did not actually know the horse was unsuitable for the service. It is true a livery man is not an insurer of the suitableness of a horse or carriage let to a customer, but he is bound to exercise the care of a reasonably prudent man to furnish a horse or carriage that is fit and suitable for the purpose contemplated in the hiring.’

In the instant case we are impressed that there is evidence in the record upon which the jury might have found that the skip-loader would not have rolled backwards over the declivity to the lot below had the respondents, as owners and bailors, first caused the skip-loader to be inspected as to the mechanical condition of its brakes. Rae v. California Equipment Co., 12 Cal.2d 563, 596, 86 P.2d 352.

Concerning the duties and obligations of the appellant under the conceded facts as to what occurred at the time of the leasing of the equipment here in question, section 408 of the Restatement of the Law of Torts states: ‘One who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel, or to be in the vicinity of its probable use, for bodily harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it.’

In Comment (a) thereunder it is stated that ‘The fact that a chattel is leased for immediate use makes it unreasonable for the lessor to expect that the lessee will do more than give it the most cursory of inspections. The lessor must, therefore, realize that the safe use of the chattel can be secured only by precautions taken by him before turning it over to the lessee. * * *.’

In Comment ‘b’ it is stated, in part: ‘The rule stated in this section is peculiarly applicable to persons who make a business of leasing chattels. In such a case, in the absence of an understanding to the contrary it may be assumed that both lessor and lessee understand that the article is leased as for immediate use.’

With reference to any waiver of a defect on the part of appellant, it is established law in this state that one who relies upon a matter of waiver to sustain a defense to a cause of action must plead the same and prove it. With reference to the issue of waiver in the instant case, it cannot be said that reasonable minds might not differ upon the proof offered, if any, in support thereof. It requires no citation of authority for the statement that one may not by contract absolve himself of responsibility for his own negligence, if the latter is the proximate cause of ensuing damage. The question of whether any defect existed when the skip-loader was delivered or whether such defect developed after delivery is certainly under the facts of this case a debatable one. Being a question of fact upon which reasonable minds might differ, it should have been submitted to the triers of fact.

Although the contract under which the skip-loader was rented contained a provision that appellant acknowledged he had examined the equipment and knew the condition thereof and that the same was in good condition, it became a question of fact for the jury to determine whether such an examination would have revealed the alleged defective condition of the brakes. If under the facts of this case the jury had found that respondent had taken all reasonable precautions to determine the condition of the brakes and that the defects, if any, therein developed after delivery of the bailed article, respondents' argument might prevail. But that is not the case, and we are asked to hold that as a matter of law appellant himself was negligent or that the defective condition of the brakes developed after possession of the equipment was delivered to him. This we cannot do, because we feel that reasonable people might well differ on these questions. The motion for a directed verdict should not have been granted.

It should be understood that throughout this opinion we have followed the rule applicable to cases wherein the appeal is taken from a judgment following a directed verdict or nonsuit, which rule requires that evidence shall be taken in the light most favorable to the losing party in the court below. We are therefore expressing no opinion as to the weight of the evidence or its truth or falsity or the inferences deducible therefrom.

For the foregoing reasons, the judgment is reversed and the cause remanded for a new trial.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.