Conkling v. Standard Oil Co.
| Decision Date | 09 June 1908 |
| Citation | 116 N.W. 822,138 Iowa 596 |
| Parties | WILBUR S. CONKLING, Appellee, v. THE STANDARD OIL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.-- HON. HUGH BRENNAN, Judge.
ACTION at law to recover damages. The opinion states the case. Plaintiff had a verdict and judgment in the court below, and therefrom defendant appeals.-- Affirmed.
Affirmed.
Clinton L. Nourse, for appellant.
McHenry & Jones, for appellee.
Necessary to some of the questions presented is the state of the pleadings. As originally filed, the petition was in one count. Therein it was recited that defendant is a corporation doing business in the city of Des Moines; that on a day named defendant sold to plaintiff a quantity of oil to be used as a cooling agent for the cylinder and engine in an automobile owned and operated by him; that defendant by its agent guaranteed that said oil was not inflammable or capable of combustion, and was absolutely safe to be used as a cooling medium; that, believing in the truth of said statements and representations, and relying thereon, plaintiff purchased the oil, and the same was placed in his automobile; that, in truth, said oil was of an inflammable character, and was capable of ignition, and was not safe for use as a cooling medium; that on the day following his purchase, while plaintiff was using his automobile, the said oil in some manner unknown to him, and without fault on his part, became ignited, and with the result that his machine was burned and wholly destroyed; "that the representations and guarantees made by defendant were knowingly false and untrue that he has been damaged by reason of the false representations," on which he relied in a sum named. Defendant answered, admitting the sale of oil by it to plaintiff, but denying the other allegations of the petition. Before trial plaintiff amended his petition. Therein some additional facts were stated, and an implied warranty respecting the character and quality of the oil was contended for. On the amendment being filed, defendant moved that the petition be divided into counts, and, as grounds therefor, it was pointed out that in the petition as originally filed an express warranty was declared upon, while in the amendment an implied warranty was set up. Complying with the motion, plaintiff filed "an amendment to his petition as count 2 thereof." Therein was alleged the sale of oil to plaintiff, and the use for which purchased; that plaintiff had no knowledge as to the qualities of said oil; "that defendant was engaged in the business of preparing and testing different oils for different mercantile purposes, and held the same out to the general public for use for certain specific purposes;" that defendant knew the purpose for which the oil purchased by plaintiff was intended, and, by its agent, placed the same in the automobile of plaintiff to be used as a cooling agent for the engine and cylinder thereof; that plaintiff, in purchasing said oil, relied upon the representations of defendant as to its character and quality. The circumstances of the fire and destruction of the automobile are then alleged as in the first count; so, also, that the oil was inflammable and unsafe for use for the purpose purchased. It is then said that the intention of the petition is to plead but one cause of action, stated in different counts to meet the evidence as it may arise on the trial. The defendant answered the amendment, admitting the sale of the oil and denying all other allegations. The answer then continues: "That at the commencement of the action plaintiff elected to sue upon an express warranty, and issue was joined thereon and so remained until the amendment was filed alleging an implied warranty." That in this situation "plaintiff waived any claim upon an implied warranty, and is now estopped from claiming thereon."
I. In stating the case to the jury, and in the body of the charge, the court proceeded on the theory that the first count of the petition amounted to an allegation of express warranty, and of a breach of such warranty. Appellant contends that there was error, and for three reasons: (a) No such warranty was pleaded; (b) no competent evidence that such a warranty was made; (c) no evidence that the agents of appellant had any authority to make such a warranty. These matters we shall dispose of in their order. It is the gist of the argument against the pleading that, conceding a cause of action to be stated, it is of one sounding in tort. It is quite true that there is some confusion in the pleading. Some language quite inappropriate to the statement of a contract breach and the rights arising therefrom is used; but we think that the pleading as stating a cause of action founded on contract should not be condemned as fatally deficient. It is the averment that the oil was "guaranteed" to be noninflammable and safe, and this was the equivalent of saying that there was a warranty of the character and quality thereof. 4 Words & Phrases 3183. So, also, the allegation that the oil purchased proved to be inflammable, and that it did ignite in use, may fairly be accepted as a substantial averment that the warranty failed; and it is said that an injury involving damage resulted. These were all the matters necessary to be proven, and it cannot, therefore, be material that the pleader in drawing his conclusions conceived the idea that the culpability of defendant consisted in making a representation which proved to be false.
Moreover, the case must be considered in this court following the line of the theory on which it was tried in the court below; and this we feel constrained to say, although the point is not made by counsel for appellee. In justice to the trial court, if on no other ground, we will not permit a party to mend his hold after coming into this court, and seek to advantage himself on grounds not suggested on the trial below. Defendant did not question the pleading by motion, demurrer, or otherwise. On the contrary, throughout the trial the count was regarded as one presenting a demand based on breach of contract right. It was so recognized by defendant in its motion to divide into counts, in its motion to instruct a verdict after the evidence was all in, and in request for instructions to the jury. And in the motion for new trial it was not suggested, in terms, that the case had been tried and submitted for a verdict on a theory not warranted by the pleadings. Such being the course pursued, it does not remain for appellant to come into this court and contend that the issue of express warranty was not before the trial court. Bull v. Keenan, 100 Iowa 144, 69 N.W. 433; Weis v. Morris, 102 Iowa 327, 71 N.W. 208; Battles v. Roberts, 120 Iowa 747, 95 N.W. 247.
Was there competent evidence on the subject of express warranty sufficient to take the case to the jury? Plaintiff called as a witness one Campbell, an automobile salesman, and, over the objection of defendant, he was allowed to testify that on a day previous to the transaction in question, at the request of and in the presence of plaintiff, he called up the office of defendant by telephone, when a conversation occurred, as follows: To other questions the witness answered that he did not know who was talking at the other end of the line, but that he had frequently telephoned orders to the office of defendant; and, referring to the person who answered at the time in question: "I would say it was the same person." The objection made to this testimony was that any statement made to Campbell was incompetent and immaterial under the issues; that it did not appear with whom the conversation was had, nor that such person was an employe of defendant authorized to make representations. And for these reasons counsel insist that the evidence was improperly admitted into the record, and should not, therefore, be considered in determining whether or not a case had been made for the jury. We are not disposed to concede merit in the objection. The fact that the conversation was carried on by Campbell is not material. To all intents and purposes plaintiff was talking through Campbell. 30 Am. & Eng. Ency., 150. As the case stood at the time the evidence was offered, plaintiff was claiming that defendant was holding out the particular brand of oils as suitable and safe for cooling purposes, and clearly enough the evidence was addressed to proof thereof.
Nor is the fact that the witness could not positively identify the person with whom he was talking necessarily fatal to the admissibility of the evidence. It is well settled that, where otherwise admissible, telephone conversation may be repeated in evidence. "Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on." Wolfe v Railway, 97 Mo. 473 (11 S.W. 49, 3 L. R. A. 539, 10 Am. St. Rep. 331); 27 Am. & Eng. Ency., 1091. The weight to be...
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