Berhow v. Kroack

• Decision Date: 25 February 1972
• Docket Number: No. 54469,54469
• Parties: Donald W. BERHOW, Appellant, v. Kalman J. KROACK and Jensvold, Inc., Appellees.
• Court: Iowa Supreme Court

Page 379

195 N.W.2d 379

Donald W. BERHOW, Appellant, v. Kalman J. KROACK and Jensvold, Inc., Appellees.

No. 54469.

Supreme Court of Iowa.

Feb. 25, 1972.

Laird, Burington, Bovard & Heiny, Mason City, and Erwin L. Buck and J. Ramsey McKey, Britt, for appellant.

Weible & Stipp, Forest City, and Wm. Pappas, Mason City, for appellee Jensvold, Inc.

Linnan & Lynch, Algona, for appellee Kalman J. Kroack.

RAWLINGS, Justice.

Action at law by bailee plaintiff, Donald Berhow (Berhow), seeking recovery against defendants, Kalman J. Kroack (Kroack) and bailor Jensvold, Inc. (Jensvold), for injuries sustained as the result of a nighttime highway collision of Kroack's automobile with the rear of a Jensvold owned and Berhow operated tractor. Kroack is not here involved. The case was submitted on special verdict in the form of written interrogatories. Jury found for Berhow. Thereafter trial court found answers to interrogatories submitted were irreconcilably inconsistent, and pursuant to Jensvold's motion entered judgment notwithstanding the verdict. Berhow appeals. We affirm.

The afternoon of November 17, 1966, Berhow went to Jensvold's place of business in Buffalo Center to get his tractor, which was there being repaired. Finding the repairs uncompleted Berhow entered into an oral agreement with Melvin Wirtjes, Jensvold's manager, under which Berhow rented a temporary replacement tractor. At approximately 5:30 P.M., Berhow and Wirtjes drove to Jensvold's equipment storage lot. Arrangements were there made for Berhow to take a used 560 International 'Farmall'. Difficulty was encountered in starting it. Resultantly Berhow did not leave the lot until 6:00 P.M., by which time it was completely dark. Neither Wirtjes nor Berhow then inspected the tractor with regard to a red rear warning light. Additionally, no explanation as to operation of the tractor's lighting system was either sought or given. When Berhow left the lot only the headlights and a small white 'working' light located on the rear of the tractor were lit.

After going east on Highway 9 for one mile, Berhow turned north onto State Highway 322, a busy blacktop road. He had traveled approximately two miles when the aforementioned collision occurred. Defendant Kroack testified he was traveling north at 55 m.p.h., did not see the tractor, and was uncertain even after the accident as to what had been hit. He admitted seeing a white light ahead of him prior to the impact, but thought it was either an approaching motorcycle or car with one headlight. A postaccident inspection of the tractor revealed the statutorily required rear red warning light was inoperable.

To the extent here relevant Berhow's petition alleges, (1) Jensvold was negligent in renting him a tractor without an operable rear warning light, and failing to apprise him of such defect; (2) these acts of negligence were proximate causes of the collision. Jensvold asserts Berhow was contributorially negligent in operating the vehicle on a public highway after dark without displaying a red warning light as required by law.

Trial jury found Berhow entitled to damages from Jensvold. Judgment was accordingly entered. Subsequently Jensvold moved for judgment notwithstanding the verdict which was sustained.

On appeal from this adjudication Berhow contends trial court erroneously (1) entered judgment notwithstanding the verdict, (2) overruled his objections to specified jury instructions given.

I. Prefatorily it is essential we determine the nature of Berhow's action against Jensvold.

It is to us evident the oral rental agreement entered into by Jensvold and Berhow created a bailment for mutual benefit, which in effect makes it one for hire, Jensvold being bailor, Berhow Bailee. See 8 Am.Jur.2d, Bailments, §§ 6, 10; 8 C.J.S. Bailments § 8a.

II. Under such a bailment there is imposed on the bailor, by operation of law, an obligation similar to an implied warranty of fitness in the sale of personal property, i.e., the thing or property hired shall be reasonably suitable for the use known to be intended. See Meester v. Roose, 259 Iowa 357, 359--360, 144 N.W.2d 274; Frumer & Friedman, Products Liability, § 19.02(2); 8 C.J.S. Bailments § 25a; Annot. 68 A.L.R.2d 850. See also Ekco Products Company v. United States, 312 F.2d 768, 771--772, 160 Ct.Cl. 75; Penton v. Favors, 262 Ala. 262, 78 So.2d 278, 281--282.

III. Additionally, the bailor is under a separate duty to use reasonable care to the end that the chattel supplied be reasonably safe for the use to which it is to be put. See Brandon v. Roy, 259 Iowa 1271, 1274--1275, 147 N.W.2d 810; Restatement, Second, Torts, § 408; 8 C.J.S. Bailments § 25a.

IV. Consequently, a 'for hire' bailee's action to recover for injuries caused by an allegedly unsuitable bailed chattel may be (1) in contract for breach of the implied warranty of fitness or (2) in tort for negligence in failing to use reasonable care to ascertain it was in fact suitable. See Chrischilles v. Griswold, 260 Iowa 453, 459, 150 N.W.2d 94; Giarratano v. Weitz Company, 259 Iowa 1292, 1305, 147 N.W.2d 824; Russell & Co. v. Polk County Abstract Co., 87 Iowa 233, 238--239, 54 N.W. 212; Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388, 391; 8 Am.Jur.2d, Bailments §§ 150, 285; 8 C.J.S. Bailments § 25; Annot. 46 A.L.R.2d 404, 408; cf. Blakeley v. Estate of Shortal, 236 Iowa 787, 790--791, 20 N.W.2d 28.

It therefore follows Berhow could have asserted against Jensvold an action either Ex contractu or Ex delicto, or both. See Iowa R.Civ.P. 22; Nelson v. Iowa-Illinois Gas & Elec. Co., 259 Iowa 101, 106--107, 143 N.W.2d 289; Presthus v. Western Mutual Insurance Company, 257 Iowa 1035, 1039--1040, 135 N.W.2d 549; Connell v. Hays, 255 Iowa 261, 271, 122 N.W.2d 341; Kunzman v. Cherokee Silo Co., 253 Iowa 885, 891, 114 N.W.2d 534; Eklof v. Waterston, 132 Or. 479, 285 P. 201, 203.

V. The question now to be resolved is whether Berhow, by his action against Jensvold, seeks relief premised on breach of contract or negligence, or both. In that regard Berhow's one count petition as against Jensvold alleges, in relevant part:

'The defendant, Jensvold, Inc., was Negligent in the following particulars which Negligence was a proximate cause of said accident and the resulting injuries:

'a. In leasing to this plaintiff a tractor that was not equipped with a workable rear red light.

'b. In failing to apprise this plaintiff that the tractor leased to him was not equipped with a workable red rear light.

'c. In permitting this plaintiff to drive said tractor upon a public highway when lights were required without apprising him that said tractor was not equipped with a workable rear red light.' (Emphasis supplied).

This allegation, and attendant theory upon which the case was tried, clearly discloses Berhow's action against Jensvold was predicated on negligence alone, i.e., failure to exercise reasonable care to the end that the tractor entrusted was reasonably safe for the use to which put. See Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388, 391--392; 8 C.J.S. Bailments § 49 at 508.

By the same token it is equally evident Berhow neither directly nor by implication declared a breach of implied fitness warranty, i.e., the tractor was reasonably suitable for the use known to be intended. See A.A.A. Parking, Inc. v. Bigger, 113 Ga.App. 578, 149 S.E.2d 255, 258; 41 Am.Jur., Pleading, §§ 95--99; 71 C.J.S. Pleading §§ 17--18.

Despite some hold-mending arguments to the contrary, Berhow here candidly concedes the foregoing by this statement in his reply brief:

'The plaintiff could sue for the breach of the contract or for the tort created by the breach. The former would be a suit ex contractu and the latter would be a suit ex delicto. This was a suit ex delicto claiming negligence growing out of the breach of the bailment contract. That was the plaintiff's position at the inception of the suit and his position remains the same at this time.'

Additionally, the case was unquestionably tried and jury instructed on the Ex delicto theory. We are thus restricted to an action premised on negligence alone. See Smith v. Newell, 254 Iowa 496, 499--500, 117 N.W.2d 883, and citations; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1095--1096, 104 N.W.2d 562.

In light of the foregoing it is apparent negligence, contributory negligence, and proximate cause instantly come into play. See The Code 1966, Section 619.17; Andrews v. Struble, 178 N.W.2d 391, 398 (Iowa); Bauman v. City of Waverly, 164 N.W.2d 840, 844--845 (Iowa); Schultz v. Gosselink, 260 Iowa 115, 120--121, 148 N.W.2d 434.

VI. Our review is on errors assigned. Iowa R.Civ.P. 334. Also, since this is an appeal from a judgment notwithstanding the verdict, the evidence must be viewed in that light most favorable to plaintiff. Dobson v. Jewell, 189 N.W.2d 547, 550 (Iowa).

VII. Inceptionally it is understood the neghttime operation of a tractor on a public highway without a lighted rear red light affixed thereto constitutes negligence Per se, absent legal excuse. See The Code 1966, Sections 321.384, 321.387, 321.398; Kohler v. Sheffert, 250 Iowa 899, 906, 96 N.W.2d 911; Reed v. Willison, 245 Iowa 1066, 1071--1072, 65 N.W.2d 440; Semler v. Oertwig, 234 Iowa 233, 256, 12 N.W.2d 265. Furthermore, this standard is made statutorily applicable to the conduct of both Jensvold and Berhow by Code § 321.381. Cf. Restatement, Second, Torts, § 469. Absent any sufficiently specific or effective objections the jury was accordingly instructed. See Iowa R.Civ.P. 196; Andrews v. Struble, 178 N.W.2d 391, 399 (Iowa).

Moreover, an examination of the record fails to disclose any showing of legal excuse on Berhow's part. See Florke v. Peterson, 245 Iowa 1031, 1035--1036, 1037--1038, 65 N.W.2d 372.

VIII. Berhow argues, however, his negligence could not inure to Jensvold's benefit since the purpose of Code §§ 321.381, 321.384 and 321.387 is to protect other motorists, not...