Putt v. Edwards Equipment Co.

• Decision Date: 19 April 1966
• Docket Number: No. 41189,41189
• Citation: 413 P.2d 559
• Parties: Clark PUTT, Plaintiff in Error, v. EDWARDS EQUIPMENT COMPANY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 559

413 P.2d 559

1966 OK 78

Clark PUTT, Plaintiff in Error, v. EDWARDS EQUIPMENT COMPANY, Defendant in Error.

No. 41189.

Supreme Court of Oklahoma.

April 19, 1966.

Syllabus by the Court

In actions of legal cognizance a demurrer to plaintiff's evidence should be overruled unless there is an entire absence of proof tending to show a right to recover; and, in passing upon a demurrer to the evidence, the trial court must consider true all of the evidence favorable to the party against whom the demurrer is directed together with all inferences that may be reasonably drawn therefrom and disregard all conflicting evidence favorable to the demurrant.

Appeal from District Court of Kay County; C. L. Armstrong, Judge.

Tort action brought by plaintiff seeking damages for personal injuries. The trial court sustained defendant's demurrer to the plaintiff's evidence, and plaintiff appeals. Reversed and remanded with directions.

Raymond A. Trapp, Ponca City, for plaintiff in error.

C. D. Northcutt, Northcutt & Northcutt, Ponca City, for defendant in error.

BERRY, Justice.

Plaintiff in error brought an action against the corporate defendant seeking damages for personal injuries. The trial court sustained defendant's demurrer to plaintiff's evidence and entered judgment for defendant. Motion for new trial was overruled and plaintiff appealed to this Court upon the original record, upon the ground that the trial court erred in sustaining a demurrer to the evidence.

The petition alleged the corporate defendant was engaged in selling farm machinery and equipment. Plaintiff operated a small farm near Ponca City, Oklahoma, and inquired at defendant's for a used tractor equipped with a front end loader, to be used in leveling ground on his farm. Subsequently defendant showed plaintiff a used International tractor so equipped, and with dual wheels on rear. Thereafter defendant delivered the machine to the farm in order that plaintiff might try same with a view to purchase if satisfactory for the use intended. When delivered the tractor had only single rear wheels, and plaintiff drove the tractor but noticed nothing unusual. The following day plaintiff drove the tractor to a place on the farm and attempted to use the front loader. While attempting to lift a load of dirt the tractor overturned, pinning plaintiff underneath and inflicting serious injuries.

Plaintiff alleged his own unfamiliarity with this particular make and model tractor equipped with the front loader, which was not standard equipment for this machine, and the loader was extra heavy and of greater capacity than those regularly installed on such tractor; that to counterbalance the extra weight this tractor was equipped with dual wheels and also had a counterbalance at the rear; before delivering this machine to plaintiff the defendant removed two of the rear wheels and failed to place the counterbalance on the rear of the tractor; defendant then failed to warn plaintiff of the dangerous condition of the machine and the danger attendant upon using the loader without the dual wheels and counterbalance; that plaintiff noticed nothing unusual when driving the tractor, and there was nothing to warn him of danger involved in attempting to use the device for loading dirt. Plaintiff charged defendant's violation of duty to warn of dangerous nature of instrumentality when used for loading dirt, although defendant knew of use plaintiff intended to make of the machine; defendant also failed and neglected to warn plaintiff for danger in using the loader when tractor was not equipped with dual tires or counterbalance on the rear; plaintiff had no knowledge this loader was not standard equipment and that a counterbalance was necessary if loader was to be used.

Defendant's answer denied violation of any duty owed plaintiff, or that there was anything unusual when the machine was delivered, or any reason for warning against improper use. Further, there were no hidden defects in the machine and plaintiff was experienced in operation of such machinery, and the accident resulted from plaintiff's own negligence in attempting to load dirt when tractor was upon uneven ground, which caused machine to tip over. The answer also alleged contributory negligence and that any dangers were open and apparent, as to which plaintiff assumed the risk.

This appeal involves the single question whether plaintiff's evidence was sufficient to present a question of fact requiring determination of the jury. Plaintiff urges applicability of the settled rule relative to a trial court's duty in passing upon a demurrer to the evidence. This rule requires the court to consider all evidence favorable to the demurrant as withdrawn and to measure plaintiff's case by treating as admitted every fact which the evidence tends in the slightest degree to prove, and all reasonable and logical inferences and conclusions to be drawn therefrom. Spiller v. Massey & Moore, etc., Okl., 406 P.2d 467.

Plaintiff approaches the problem from the premise that delivery of the tractor for trial as a preview to possible purchase constituted a bailment for mututal benefit of the parties. This rule is that when a chattel is delivered for trial to determine the suitability for the bailee's requirements, with the understanding that if satisfactory the bailee has the option of purchase, this arrangement constitutes a bailment for mutual benefit of the parties. 8 Am.Jur. (2), Bailments § 15; annotations in 31 A.L.R. 1364; Western Rope & Mfg. Co. v. Overland Pet. Co., 98 Okl. 5, 224 P. 659, recognizing the principle of the rule mentioned. The conclusion is that the issue herein is determinable under the law of bailments, and particularly in view of our statute, 15 O.S.1961, § 453, which provides (in pertinent part):

'A bailor must indemnify the bailee:

'First. For all damage caused to him by the defects or vices of the thing bailed;

'* * *'

The defendant's position, derived from text law relative to sales as expressed in 46 Am.Jur., Sales § 802, et seq., is that to establish actionable negligence arising from the seller's breach of duty toward an injured party the defective condition of the article sold must be proved. Defendant urges a seller may be liable to a buyer for injury if the article sold has a latent defect which renders it dangerous, and the seller knew, or by inspection could be expected to know, of a danger but failed to disclose such defect to the buyer. But no liability can attach if the buyer is familiar with the risk involved. And, although there is a duty to warn against latent defects, no such duty exists as to defects discoverable by ordinary examination, or which are open and capable of being observed by a person of ordinary intelligence.

Much of defendant's argument concerns the asserted negligence of plaintiff in attempting to use the loader over uneven ground, thereby creating a dangerous condition which caused the accident. Such matters necessarily present the defense of contributory negligence, which has no part in consideration of the issue herein, and does not require further attention. Under the rule governing consideration of the evidence in passing upon a demurrer thereto, review of the evidence favorable to the plaintiff becomes necessary to the present inquiry.

The plaintiff's evidence included testimony of the corporate defendant's president (Edwards), which confirmed the matters relative to plaintiff's inquiry and negotiations for a cheap tractor equipped with a front loader. By trade defendant acquired a 1940 model light industrial tractor equipped with a loader, rear dual wheels and a bracket for a counterbalance (weight box) extending from the rear. There was no counterbalance on the machine when acquired by defendant. The front loader was not original equipment but was 'comparable' to factory equipment, and was on the tractor when acquired by trade from a Kansas company, which used the machine for 'stockpile loading.'

Defendant's cross-examination was that the tractor had no hidden defect. Two of the rear dual wheels were removed because the tires were bad, leaving single wheels, although defendant 'did put back two sets of wheel weights which we felt was adequate.' Removal of the dual wheels made it the same as an agricultural tractor, except the 'front end is made a little heavier' to handle more weight. Defendant repaired the hydraulic ram and removed the rear tires so the tractor could be used either for farming, or light industrial work. Unless dual tires had been removed the tractor could not have been used for plowing, or to pull a hay baler or mower.

A prior owner (Auterson) had used the tractor in his dirt business before trading it to defendant. It was equipped with a bracket for a sand box when traded to defendant; this was to hold weight down on the wheels to make it load. The dual wheels and sand box still were on the tractor when traded to defendant. This witness, who was experienced in operation of such equipment, testified removal of the outside dual wheels would make the tractor turn over easier when using the front loader. On cross-examination the witness stated the tractor wouldn't overturn on level ground but would on a slope; that it was necessary to watch when the bucket was in the air or 'it would keel over on you.' The witness had reacquired the machine and at the time of trial was using it every day. There still were only single...