Miller v. Hand Ford Sales, Inc.

• Decision Date: 03 June 1959
• Parties: Florence MILLER, Respondent, v. HAND FORD SALES, INC., Appellant.
• Court: Oregon Supreme Court

Page 181

340 P.2d 181

216 Or. 567

Florence MILLER, Respondent, v. HAND FORD SALES, INC., Appellant.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 4, 1959.

Decided June 3, 1959.

Carl G. Helm, Jr., La Grande, for appellant.

Charles R. Cater, La Grande, for respondent. With him on the brief was Ross E. Hearing, La Grande.

Before McALLISTER, C. J., and ROSSMAN, LUSK, WARNER, PERRY, CRAWFORD and MILLARD, JJ.

PERRY, Justice.

The plaintiff brought this action against the defendant to recover damages for personal injuries.

It is conceded by the parties that plaintiff's cause of action is based upon the theory of the defendant's breach of warranty arising out of a bailment.

The cause was tried before a jury and the result was a verdict for the defendant. On motion of plaintiff, the trial court set aside the verdict and granted a new trial. From this ruling the defendant appeals.

Defendant's principal assignment of error is that the trial court should have allowed its motion for a directed verdict. If this contention is sound, it is not necessary for us to consider whether the trial court erred in granting plaintiff's motion for a new trial, based upon erroneous instructions to the jury.

The evidence, which under this assignment of error must be construed in its most favorable aspect to support the contentions of the plaintiff, is as follows:

The plaintiff and her husband were the joint owners of a Studebaker automobile. On May 28, 1955, Mr. Miller, husband of plaintiff, took the automobile to the defendant's garage for some repair work. He testified that at the garage the following occurred:

'A. Well, as I recall, it was a clutch deal, one of them things that drop out unexpectedly, and this was the 28th which was Saturday. This happened about 3 o'clock in the afternoon so Mrs. Miller's brother and his wife were coming up that night and I went--drove down to Mr. Hand's garage to see if I could get it fixed and they said no, it was a three-day holiday and most of their men had already left and they wouldn't even touch it, so I left it there.

'Q. Now, what was done about a substitute car? A. I asked him if he could furnish me some kind of transportation--that I didn't want to take any trips.

* * *

* * *

'A. Well, Mr. Hand said, 'Sure, we can get something.' 'Well,' I said, 'I am willing to pay for it.' He says, 'No, we can't charge you.' They have to have a special license or something, I don't know, but I told him that the brother-in-law and sister-in-law would be here and we would like to have a car to run downtown and get the groceries, and so forth, at least, and he says, 'Well, we'll pick you out something.' He and Mr. _____ the big heavy fellow, I can't think of his name--anyhow, he is one of their top salesmen, the head salesman--they sparred around a little bit and says--finally come to the conclusion they would let me use this Chevrolet, and I said, 'Well, that's fine."

Mr. Miller then drove the Chevrolet to his home. The plaintiff received her injuries on the 28th day of May, 1955, while attempting to alight from the front seat of the Chevrolet automobile. She slid across the front seat from the left side to the right side and in the process a cut was sustained on her left knee and leg, apparently from a sharp-edged strip of metal which encased the radio and could not be readily seen by a driver or passenger in the front seat of the automobile as it was beneath the dashboard.

There is no evidence that the defendant had knowledge of this condition prior to the plaintiff suffering injury. There is evidence that defendant had on some prior occasions made loans of the use of automobiles under similar circumstances.

Since the plaintiff's right of recovery is grounded on the contractual relationship arising out of the bailment, we must first determine the nature of the bailment to determine the contractual obligation of the defendant.

The duties of bailor are generally to be determined according to the character of the bailment; that is, whether the bailment is one for mutual benefit, or gratuitous. 4 Williston on Contracts, Rev. Ed., 2889, § 1033; 8 C.J.S. Bailments § 7, p. 242.

It is the general rule of law, well-established in both England and this country, that, if the bailment of a chattel is gratuitous, the bailor has but a minimum duty toward the bailee and that is to warn him of any defects in the chattel of which he is aware that are likely to cause injury to the person or property of the borrower. 4 Williston on Contracts, Rev. Ed., 2902, § 1039; Johnson v. H. M. Bullard Co., 95 Conn. 251, 111 A. 70, 12 A.L.R. 766; Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333; Moore v. City of Ardmore, 188 Okl. 74, 106 P.2d 515, 131 A.L.R. 841; Runnels v. Dixie Drive-It-Yourself System Jackson Co., 220 Miss. 678, 71 So.2d 453, 46 A.L.R.2d 397, 439.

If the bailment is for the mutual benefit of both the bailor and the bailee, such as a let for hire agreement, then a higher duty arises on the part of the bailor, the general rule being that, while the bailor is not an absolute insurer against injuries from a defective chattel, he is charged with the duty of inspection to determine whether or not the chattel is fit for the purposes intended. Thus, if the defect was discoverable, he became liable for injuries to the bailee, arising from this unsafe condition, under the theory of an implied warranty of fitness. Eklof v. Waterston, 132 Or. 479, 489, 285 P. 201, 68 A.L.R. 1002; 6 Am.Jur. 309, Bailments § 194.

While it is contended by the plaintiff, and contested by the defendant, that the bailment was for her benefit which created a privity relationship with defendant, and this fact was known and agreed to by defendant, we will consider this case in the light contended for by the plaintiff. This question is of importance to the plaintiff, because her cause of action is based upon the theory of the breach of an implied warranty which arises only out of the privity of contract. Under this view of the facts, the plaintiff's rights are to be considered as though she had arranged with the defendant for the use of the Chevrolet automobile.

It seems clear from these statements of law that the sole question then is whether the facts disclose a bailment for mutual benefit. A bailment for mutual benefit arises whenever it appears that both of the parties to the contract receive a benefit from the transaction.

4 Williston on Contracts, Rev. Ed., 2904, § 1040, divides bailments for mutual benefit into these several classes:

'(1) Where the bailee hires the use of the property.

'(2) Where the bailor employs the bailee to do some work upon the property.

'(3) Where the bailor hires the bailee to store the property.

'(4) Where the property is bailed as a pledge or security for a debt or other obligation.

'(5) Where the bailor employs the bailee to carry the property.

'(6) Where the bailee is to act as factor or agent for the bailor in the sale of the property.

'(7) Where the custody or use of the property is incidental to some other business transaction between the parties.'

The plaintiff contends that the benefit to the defendant was the good will which he created with his customers by loaning them a car while the customer's car was being repaired, thus bringing the plaintiff within the 7th classification above set out. She relies upon the following cited cases: Bogart v. Cohen-Anderson Motor Co., 164 Or. 233, 236, 98 P.2d 720; Woodruff v. Painter & Eldridge, 150 Pa. 91, 24 A. 621, 16 L.R.A. 451, 30 Am.St.Rep. 786; Kleckner v. Hotel Strand, 60 Pa.Super. 617; L.R.A.1918C, 674-675; Colburn v. Washington State Art Association, 80 Wash. 662, 141 P. 1153, L.R.A.1915A, 594; White v. Burke, 31 Wash.2d 573, 197 P.2d 1008.

The first case cited, Bogart...