Ryder Truck Rental, Inc. v. Transportation Equipment Co., Inc.

• Decision Date: 21 October 1983
• Docket Number: No. 82-652,82-652
• Citation: Ryder Truck Rental, Inc. v. Transportation Equipment Co., Inc., 339 N.W.2d 283, 215 Neb. 458 (Neb. 1983)
• Court: Nebraska Supreme Court
• Parties: RYDER TRUCK RENTAL, INC., a corporation, Appellee, v. TRANSPORTATION EQUIPMENT CO., INC., a Nebraska corporation, Defendant and Third-Party Plaintiff, Appellant, Paul A. Heifner, Third-Party Defendant and Appellee.

Page 283

339 N.W.2d 283

215 Neb. 458

RYDER TRUCK RENTAL, INC., a corporation, Appellee, v. TRANSPORTATION EQUIPMENT CO., INC., a Nebraska corporation, Defendant and Third-Party Plaintiff, Appellant Paul A. Heifner, Third-Party Defendant and Appellee.

No. 82-652.

Supreme Court of Nebraska.

Oct. 21, 1983.

Syllabus by the Court

1. Assignments. Generally, an assignor retains only those rights which have not passed to the assignee by the assignment, and the assignor loses all right to control or enforce an assigned right against the obligor.

2. Pleadings. An allegation in a pleading upon which an action is tried is a judicial admission and a limitation of the issues which is binding upon the party making the allegation.

3. Agency. A party who has knowingly permitted others to treat one as his agent is estopped to deny the agency.

John R. Hall of Anderson, Vipperman, Hinman, Hall & Kovanda, Grand Island, for defendant and third-party plaintiff, appellant.

Stephen A. Scherr of Whelan, Foote & Scherr, P.C., Hastings, for appellee Ryder Truck.

BOSLAUGH, WHITE, and SHANAHAN, JJ., NORTON, District Judge and COLWELL, District Judge, Retired.

BOSLAUGH, Justice.

Ryder Truck Rental, Inc., commenced this action to recover the balance due it on a truck rental agreement entered into with the defendant Transportation Equipment Co., Inc., on October 10, 1977.

The agreement was for the lease of a tractor unit, No. 66058K, to the defendant in accordance with the terms of the written agreement and attached schedules. On May 22, 1978, with the approval of Ryder, the defendant assigned the agreement to Williams Transfer, Inc. The assignment provided that the defendant was not released from its obligations and liabilities under the lease.

Williams Transfer was not a party to the action, and the record is not clear as to whether further assignments were made by Williams. The record does show that Ryder understood that Transportation Equipment Co. and Williams Transfer were under the same management. The president of Transportation Equipment Co., Robert Gartner, testified that both entities operated to an extent out of the same building and that he served "in an advisory capacity" at Williams Transfer.

Trip records maintained by Ryder show that Williams Transfer was listed as "lessee" beginning in January 1978. "Paul A. Heifner, dba H & K Trucking Co. (and Transportation Equip. Co.)" are listed as "lessee" beginning in April 1978. These records indicate that a number of drivers operated the vehicle, including one named "Svoboda."

Gartner testified he was aware that Heifner was operating the vehicle during this time. However, he testified that Transportation Equipment Co. did not have a written agreement with Heifner for use of the vehicle. The district manager for Ryder testified he was under the impression that an agreement existed whereby Transportation Equipment Co. allowed Heifner use of the vehicle and whereby Heifner did remit payments to Ryder.

On November 15, 1978, vehicle No. 66058K was taken out of service due to an accident. On that trip Svoboda was the driver and "Paul A. Heifner, dba H & K Trucking Co. (and Transportation Equipment Co.)" were listed as the "lessee." The record shows that a substitute vehicle was requested by Heifner. Ryder then provided vehicle No. 23528, which was signed for by Svoboda.

Transportation Equipment Co. refused to pay the charges against the substituted vehicle in the amount of $7,901.17. Ryder then brought this suit against Transportation Equipment Co. for the balance due.

The transcript does not contain an answer filed by the defendant Transportation Equipment Co. The defendant filed a third-party petition against Heifner in which it alleged that it had assigned the rental agreement for the substituted vehicle to Heifner and that he was liable to the defendant for any judgment against the defendant for payments due under the agreements.

The trial court found generally for the plaintiff and awarded judgment in the amount of $7,901.17. The third-party petition was dismissed. The defendant has appealed and has assigned as error the finding that the defendant was liable for rental charges for the substituted vehicle, No. 23528.

The agreement contained the following provision: "Ryder will, at the request of Customer, rent Customer a replacement vehicle, if available from Ryder's rental fleet, at a rental rate equal to the charges applicable to the inoperable Vehicle."

The defendant contends that it is not liable because it did not request the substitute vehicle, was not notified that a substitute vehicle had been requested by Heifner, and Heifner was not empowered to request a substitute. None of these arguments has merit.

The assignment of the agreement to Williams Transfer provided: "Assignor does...