McWilliams v. Griffin

• Decision Date: 14 May 1937
• Docket Number: 29931.
• Citation: 273 N.W. 209,132 Neb. 753
• Parties: MCWILLIAMS v. GRIFFIN ET AL.
• Court: Nebraska Supreme Court

273 N.W. 209

132 Neb. 753

MCWILLIAMS v. GRIFFIN ET AL.

No. 29931.

Supreme Court of Nebraska.

May 14, 1937

Syllabus by the Court.

1. Every contract is made with reference to, and subject to existing law, and every law affecting such contract is read into and becomes a part of the same.

2. The provisions of a city ordinance come within the rule above stated.

3. The contract of hiring the use of the automobile involved in this litigation is to be construed as though it read, by express agreement of parties, viz.: Car No. 10, when operated under this contract, within the corporate limits of the city of Lincoln, and over the public streets thereof, shall never be driven in excess of a maximum speed, as follows, " in the congested district fifteen (15) miles per hour; on arterial streets outside of the congested district twenty-five (25) miles per hour; on all other streets, twenty (20) miles per hour."

4. Evidence in the record examined in the light of the rights created by the contract of hiring involved and the obligations imposed thereby or flowing therefrom, and held wholly insufficient to sustain a judgment against defendant Lang.

Appeal from District Court, Lancaster County; Frost, Judge.

Action by Bessie McWilliams against William Griffin, impleaded with Sidney R. Lang. Judgment for plaintiff, and defendant Sidney R. Lang appeals.

Reversed and dismissed.

Max G Towle, of Lincoln, for Lang.

Herbert A. Stearns, of Lincoln, for Griffin.

Lee Basye, of Lincoln, for McWilliams.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

EBERLY, Justice.

Bessie McWilliams instituted this action against William Griffin and Sidney R. Lang, to recover for personal injuries received in an automobile accident occurring on May 4, 1935, in the city of Lincoln, at the bridge across Oak creek on North Tenth street. Defendants joined issue, and trial was had to a jury resulting in a judgment for plaintiff and against the defendants. From the order of the trial court overruling his motion for a new trial, Sidney R. Lang alone appeals.

The case on this appeal turns on the question whether the automobile involved in the accident in suit, let by Lang to Griffin, was defective, and whether the injuries for which plaintiff sues were received by her by reason of such defects, which the lessor might have discovered by reasonable inspection before letting. The defendant Lang's defense is a general denial, with which is coupled an allegation " that the injuries and damages sustained by the plaintiff, if any, were due to and the result of the carelessness, negligence and unlawful acts of the defendant William Griffin and the plaintiff herein, all of which were the proximate cause and contributed to the alleged damages to the plaintiff."

Defendant Lang is engaged in the business of letting automobiles for hire. Under his plan of doing business, he does not furnish a chauffeur. The party obtaining the car provides his own driver. It appears that on the evening of May 4, 1935, at about 8:10 p. m., defendant Griffin appeared at Lang's place of business and rented car No. 10, a Ford Coach. On the delivery of this car to Griffin, he signed a printed certificate, of which the following is a copy:

" Arcade Rent-A-Ford Co. Phone B-1647. Lincoln, Nebr. Date, May 4, '35. This certifies that I have this day rented from the above company, Car No. (indicated below) in good condition. I am a competent driver and operator of this make of car, and hereby agree to be responsible for said car and to return same to said company in as good condition as when received by me, the ordinary wear and tear excepted. I have deposited $4.00 as a guarantee of good faith in keeping the terms of this contract, and agree to pay said company for the use of said car. Failure to lock steering wheel makes me responsible in case of theft. W. E. Griffin (Signature of lessee) Car No. 10, Insurance ______, Meter in ______, Time in ______, Meter out, 21345, Time out 8:10, No. Miles traveled, ______, Time ______, Amount refunded for gas, oil, etc. $______, B15502. Net $______. Don't Speed--Take No Chances--Safety First. Remember you are responsible for this car."

The automobile then received by Griffin was a 1933-V-8 Ford Coach, and, as indicated above, was identified as " Car No. 10." It had been purchased by Lang in the middle of 1933, and had been used continuously since that time in his business. The record discloses that immediately prior to this transaction in suit, on April 30, 1935, Albert York had rented and driven car No. 10 five miles; on May 1, following, witness L. S. Long had rented and driven it 18 miles; on May 2, 1935, S. Seguin had rented and driven it 122 miles; on May 3d, witness M. L. Lawson had rented and driven it 11 miles; and on the same day Vern Thomas had rented car No. 10 and had driven it 23 miles. So far as disclosed by the record, none of these parties complained to defendant Lang of the working of this car. The affirmative evidence of Lawson and Long is that while they were operating this car it functioned properly. Indeed, Lawson's testimony as to an occurrence on May 3, is: " Q. Do you remember how far you drove it? A. Well, I was almost to Malcolm to a farm out there and turned around and came back in. Q. How did the car drive? A. It drove all right for me. Q. Were the brakes working? A. They absolutely was, because I remember when I came in from Abe's Tavern, when I came around the curve there I was going 55 to 60, and a car came out from the road there and I had to stop to keep from hitting him. Q. Did the car shimmy? A. It did not. Q. The brakes worked all right, did they? A. They sure did."

This car No. 10, prior to being turned over to Griffin on May 4, had been inspected by witness Guild who was an employee of Lang. He testified, with reference to car No. 10: " Q. What did you do to this particular car? A. I thoroughly inspected it, changed the oil, filled it with gas, tested the brakes up and down the aisle, inflated the tires, everything that needed to be done. Q. Was the air the same in the tires all the way around, just what it should be? A. Yes. Q. Did you know at the time that Mr. Griffin had ordered the car for the evening? A. No; I didn't know that he had ordered it. Q. Mr. Lang told you to get it ready and have it ready for the evening? A. Yes. Q. And you did that? A. Yes. Q. Was the car working all right? A. Perfect, so far as I know it was working perfect. Q. Did you take the car out and drive it around the street? A. I did, around the block."

Further, defendant Lang testified that on May 4, before it was turned over to defendant Griffin, he personally drove car No. 10 to the gas pump and filled it; that the brakes were then in good condition, and that there was nothing wrong with the accelerator, the spindles, or the steering device.

Car No. 10 was then delivered to defendant Griffin about 8:10 p m. The record further discloses that Mr. F. H. Benton, who was Griffin's companion during the events which occurred on the evening of May 4, 1935, met Griffin at a beer tavern some time after 8:10 p. m., where Griffin was then eating. This beer tavern was located at the corner of Tenth and N streets in the city of Lincoln, and the rented car was then parked outside. Griffin, after a conference with Benton, called up the plaintiff, who testifies: " He * * * said there was another couple with him or going to be with him, a Mr. Benton and his girl friend and he wanted to know if I would go along with them for the evening; and I said, no, I didn't think I would because I had worked late and was going to take an aspirin and lie down, but I said, ‘ You can call later and I will see how I feel then,' but instead of calling he (with Benton) came out at about nine" to where plaintiff was living. The plaintiff finally consented to go along, and the " girl friend" not accepting Benton's invitation, the party of three then drove about the city of Lincoln, with Griffin at the wheel. Plaintiff further testifies: " When we got on Thirteenth street the car got in a street car track and that is the first I noticed that ‘ shimmy,' it was quite bad; he came to a stop button and stopped in order to get it to quit ‘ shimmying; ' * * * I said it was awful good looking, but it doesn't seem to work so well." The party continued north to Yost's café. At this place the party drank " more than one bottle of near beer spiked with alcohol." The party then returned to the car, " rode up O street west, then started south on Tenth," and " the car did another shimmy on Tenth for almost a block before he (Griffin) could get it straightened out again." After a time the party went out on North Tenth street to " Abe's Tavern," and when they arrived at Abe's Tavern the party went in and indulged in more beer spiked with alcohol. The plaintiff testifies that after they had the beer they returned to the car and Griffin again took the wheel, the party returning to Lincoln over the same road over which they had arrived at the tavern. As to the return trip, the plaintiff says: " Well, he seemed to drive the car all right as far as I can remember; he parked all right, he got out of the parking all right; there was a lot of cars out there; he did speed up a little on the way back, but that was after we went down that small incline and, of course, there wasn't much farther to go to the turn, and Mr. Benton and I both spoke about him not speeding because the corner was close. Right then is when he tried to slow the car down, and I was watching him and he worked the brakes and foot feed and everything trying to slow the car down." Then the car struck the bridge and after that plaintiff does not remember anything. This caused the injuries plainti...