Coleman v. Hertz Corp.
| Decision Date | 04 February 1975 |
| Docket Number | No. 2,No. 46155,46155,2 |
| Citation | 534 P.2d 940 |
| Parties | Carl COLEMAN, Appellee, v. HERTZ CORPORATION, a corporation d/b/a Hertz Truck Rental Service, Appellant, v. FIRESTONE TIRE AND RUBBER COMPANY, a corporation, Appellee |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
George Sam Caporal, Oklahoma City, and Keith R. Treadway, Oklahoma City, for appellee Carl Coleman.
J. A. O'Toole, Oklahoma City, for appellant.
On a chilly day in April 1967, a milkman, Carl Coleman, was driving his Gilt Edge milk truck along the highway at about 50 m.p.h. when all of a sudden its left rear dual wheels fell off causing the truck to lurch sideways, plaintiff's head to be slammed into the steering wheel, and then his hapless body thrown down on the steel floorboard of the cab as the faltering vehicle careened out of control into a bar ditch.
For his injuries the jury awarded plaintiff a verdict for $17,010.75 against Hertz Corporation d/b/a Hertz Truck Rental Service--the entity which leased the faulty truck to plaintiff's employer. Hertz appeals claiming the judgment entered on the verdict should be vacated and one entered for it instead or else grant it a new trial against both plaintiff and a third party defendant it impleaded--Firestone Tire and Rubber Company, a corporation, because: (1) the evidence does not support an actionable cause against it; (2) an answer to a special interrogatory is irreconcilable with the general verdict.
On the afternoon of April 17, 1967, plaintiff finished delivering milk to customers on a retail route he had serviced almost every day for two years and was returning to the plant. As he drew near his destination he became aware that a tire on the left dual of his one-ton GMC was deflated.
At the plant, after telling a Hertz mechanic about the flat tire, plaintiff removed empty containers from his truck, loaded it for the next day's run, then drove the truck down to a garage Hertz maintained on the dairy's premises. There the Hertz employee informed him he had called Firestone to have the tire fixed. Plaintiff says he checked in at the office 'messed around a little bit . . . had a cup of coffee' and as he was leaving the dairy he saw a man in a Firestone uniform there fixing the flat.
At this point we should explain that on August 13, 1949, plaintiff's employer, Gilt Edge Dairy, Inc., entered into a truck leasing contract with Hertz in which the latter agreed to furnish the former more than 50 trucks in consideration of stipulated rental. Hertz further agreed to provide, at its own expense, 'complete, suitable and adequate garage service, including . . . inspection and storage space for said vehicles' and 'to maintain' them 'in good repair, mechanical condition and running order.' This included supplying 'all necessary tires and tubes.' In order for Hertz to fulfill its obligation the contract specified that Gilt Edge drivers would deliver the leased trucks to Hertz' garage where they would receive needed repairs and a 'complete inspection.' And in addition Hertz bound itself 'to make regular inspection of each such vehicle to eliminate, in so far (sic) as possible, interruptions to' Gilt Edge's service.
To carry out its tire maintenance agreement Hertz most of the time employed Firestone Tire and Rubber Company. As will appear shortly there is some question about whether Firestone actually fixed the flat in question.
It was under these circumstances that plaintiff drove his truck in for the tire repair. Then early the next morning, April 18, 1967, plaintiff found his truck 'back on the line with the rest of the trucks' with the refrigeration plugged in like they do when a truck has been repaired, serviced and is ready to go. From his visual inspection the faulty left rear tire appeared to have been fixed. So he started the van up and drove away.
By the time plaintiff completed his deliveries that day he had driven about 40 or 50 miles and made close to 50 stops. It was while he was returning to Oklahoma City, Oklahoma, traveling along the highway at about 50 m.p.h. that the left rear wheels dropped off the truck as we mentioned earlier. There was no forewarning signs--no vibration, no jerking, no sounds, no wobbling . . . nothing. Once the disabled truck came to a stop in the ditch, plaintiff picked himself up. His mouth and shoulder were hurting. He managed to get out of the truck, look around, and try to see what had happened. First thing he noticed was that both left tires were missing, one of which he saw 'hanging in a fence on the left-hand side of the road and another one had cleared the fence on the right-hand side of the road,' and was '50 to 75 yards off in a field.' Plaintiff also noticed the nuts were gone from the lug bolts on subject wheel and that 'the lug bolts were not stripped out or anything . . . (but) were just in perfect shape like they had been left loose . . ..'
Plaintiff filed this action only against Hertz. He sought recovery for his injuries on two theories: (1) breach of an implied warranty running from Hertz to plaintiff that the truck it furnished and maintained for plaintiff's use as a retail milk delivery truck was fit for such purpose for which breach Hertz was 'strictly liable'; (2) negligence under the doctrine of res ipsa loquitur of a conditional nature in that the repair and inspection of the lost wheel was under the exclusive control of Hertz and under the circumstances involved the wreck would not have occurred had Hertz not been negligent and in any event Hertz neglected to properly secure the left rear wheel on plaintiff's truck or to inspect and make sure others had done so.
Hertz' answer denied all this, charged plaintiff with some unspecified contributory negligence, then turned around and alleged the mishap was 'an unavoidable, inevitable misfortune and casualty which occurred without any negligence . . ..' Next it denied warranting 'in any manner that the left rear dual wheels and tires had been inspected, repaired, and were fit and proper for their customary use.' Finally Hertz blamed any tire repair negligence on Firestone and that it was an independent contractor for whose negligence Hertz was not liable.
Hertz then obtained leave of court (over objection of plaintiff) to bring in Firestone as an additional party defendant against whom it filed what it called a 'cross claim' setting up its independent contractor theory and in its prayer for relief saying: '. . . defendant cross claimer prays that in the event that the plaintiff effects a recovery herein against this defendant, that this defendant have judgment over and indemnification against Firestone . . . for the amount of the verdict . . ..'
Firestone's motion for a separate trial was denied and after it denied causing the damage the case went to trial.
Plaintiff put on evidence that in general supported both of its theories. At the close of plaintiff's case in chief defendants moved 'the Court to require the plaintiff to elect upon which theory he is proceeding.' The record is silent as to the court's ruling but it does appear the court had earlier indicated he would require such an election because he asked: 'What are you going to do on that, Keith (plaintiff's attorney)?' Before counsel could answer the court went on to another issue. At the close of the case the court revived the matter and plaintiff elected to proceed on the theory of implied warranty and drop negligence. Directed verdict motions of defendants were overruled and the case was submitted to the jury on the theory of implied warranty which the court--after specifying the facts plaintiff had to prove one of which included a defective truck--said meant with 'reference to this case':
'The lessor of a truck who contracts to service, repair and maintain said vehicle for its customers impliedly warrants and represents that the truck will safely perform the function for which it was leased and intended to be used; and when such truck is being reasonably used for the purpose and in the manner intended the lessor will be liable for injuries or damages proximately caused by the failure of the truck to perform as warranted.'
With regard to Firestone the court instructed: 'Your verdict concerning the defendant, Firestone Tire & Rubber Company, will be by your answer to the Interrogatory and their (sic) rights or liabilities will be determined as a matter of law upon that answer.' 1
Hertz' first proposition--that the evidence is insufficient to establish liability against it--Centers around the absence of what it considers two 'necessary elements' of proof from both the evidence and the instructions, namely, (1) that the wheel assembly was defective; and (2) that Hertz knew or by the use of reasonable care should have known about any such defect at the time the truck was delivered to plaintiff.
We agree that it was necessary for plaintiff to prove the first mentioned element. The rationale of Hertz' argument that he did not do so is that first of all the lease agreement did not obligate it 'to insure the vehicles' but only "to maintain (them) . . . in good repair, mechanical condition and running order." Sectiondly, continues Hertz,
So the first question to resolve is whether the jury's negative answer to the interrogatory (see footnote 1) did indeed have the effect of (1) finding the truck was without a defect, or (2) 'explicitly' rejecting ...
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