Waggoner v. General Motors Corp.

• Decision Date: 17 March 1989
• Docket Number: No. 87-209,87-209
• Citation: 771 P.2d 1195
• Parties: James WAGGONER, Appellant (Plaintiff), v. GENERAL MOTORS CORPORATION, Burman Motors, Inc., agent for General Motors Corporation and Burman Motors, Inc., d/b/a Western Rentals, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1195

771 P.2d 1195

James WAGGONER, Appellant (Plaintiff), v. GENERAL MOTORS CORPORATION, Burman Motors, Inc., agent for General Motors Corporation and Burman Motors, Inc., d/b/a Western Rentals, Appellees (Defendants).

No. 87-209.

Supreme Court of Wyoming.

March 17, 1989.

J. Dudley Butler of Skiles, Hageman & Butler, Laramie, for appellant.

Rebecca A. Lewis of Hirst & Applegate, Cheyenne, for appellee Gen. Motors Corp.

Paul D. Schierer of Pence and MacMillan, Laramie, for appellee Burman Motors, Inc.

Before BROWN ^*, C.J., and THOMAS, CARDINE ^**, URBIGKIT, and MACY JJ.

MACY, Justice.

This is a personal injury/products liability case initiated by appellant James Waggoner against appellees General Motors Corporation (General Motors) and Burman Motors, Inc. (Burman Motors) as the result of an automobile collision. The district court granted summary judgment in favor of appellees on appellant's strict liability and breach of warranty claims, and the jury reached a verdict adverse to appellant's negligence claims.

We affirm.

Appellant presents these issues for our consideration:

I. Was the District Court's refusal to give the Plaintiff's jury instructions pertaining to bailments and the degree of care related thereto prejudicial error?

II. Was the District Court's admittance of the deposition of Dr. Curnow arbitrary, capricious and an abuse of the Court's discretion?

III. Was the District Court's dismissal by Summary Judgment of the Plaintiff['s], Jim Waggoner's, action for Breach of Implied Warranty reversible error?

IV. Was the * * * District Court's dismissal by Summary Judgment of Plaintiff's tort action based on Strict Liability reversible error?

In 1982 appellant purchased, in New Mexico, a new pickup manufactured by General Motors. Appellant experienced a variety of problems with the pickup, and, as a result of Burman Motors' inability to Appellant requested Burman Motors to provide him with a four-wheel drive replacement vehicle capable of seating four to five adults, as he was expecting out-of-state guests for a scheduled hunting trip. Burman Motors, accordingly, provided appellant with a Chevrolet Suburban, with the understanding that it had to be returned by October 11, 1984, since it had been reserved as of that date by another party. Appellant returned the Suburban on October 11, although his pickup had yet to be returned from Denver. Burman Motors offered appellant a Jeep pickup as a further replacement vehicle. Appellant declined to accept it, however, due to its lack of adequate seating capacity. ¹ Burman Motors indicated that the only vehicle it had available which met appellant's demand was a 1972 Jeep Wagoneer that they had recently received in trade. After inspecting the Jeep, appellant expressed that it was not satisfactory, but the representative for Burman Motors indicated that it was the only vehicle available meeting appellant's needs, and he stated something to the effect that appellant could take it or leave it. In a deposition, appellant stated that he experienced problems with the brakes on the Jeep immediately upon leaving Burman Motors' parking lot and that, when he reached home, he called the dealership to complain about the condition of the vehicle. Appellant apparently did not request that Burman Motors repair the Jeep, and he continued to drive it over the next ten days.

satisfy appellant's continued complaints, General Motors arranged to take the vehicle to Denver for repairs during the fall of 1984. A representative of General Motors requested Burman Motors, a Laramie, Wyoming, General Motors dealership, to provide appellant with a replacement vehicle, with General Motors allegedly paying the rental cost. Appellant delivered his pickup to Burman Motors for transport to Denver on September 24, 1984.

On the morning of October 21, 1984, appellant was driving his family to church in the Jeep. A "skiff" of snow covered the roads. As appellant, who was driving east, approached a controlled intersection, a Ford Bronco approached the same intersection from the north. The Bronco ran the stop sign, and appellant collided broadside with it. The driver of the Bronco, Elizabeth Fiedler, who was not made a party to this action, was cited for failure to yield the right of way. Appellant allegedly sustained injuries from this accident.

On February 27, 1986, appellant filed a complaint initiating this action against General Motors and Burman Motors. In this original complaint, appellant alleged causes of action premised on strict liability in tort, negligence, and negligence per se. By amended complaint, filed April 13, 1987, appellant added a claim for breach of implied warranties. Appellees timely filed answers to the original and amended complaints and asserted affirmative defenses. Thereafter, General Motors and Burman Motors separately filed motions for summary judgment. The district court conducted a hearing on the motions on April 27, 1987. Apparently, as asserted by appellees in their briefs, appellant withdrew his claim of negligence per se during the motion hearing, although this fact is not verifiable on the limited record provided for review which does not include a transcript of the motion hearing. In any event, that claim is never mentioned further in the record. In a subsequent decision letter and order, the district court granted appellees' motions for summary judgment on the claims of strict liability and warranty.

The case proceeded to trial solely on the issue of negligence. A three-day trial commenced June 1, 1987, and, at its conclusion, the jury returned a verdict in favor of appellees, finding that neither appellee was negligent, that appellant was not negligent, that Elizabeth Fiedler was 100% negligent, and that the negligence of Fiedler was a direct cause of the accident. The jury also found that appellant had sustained no compensable damages. Judgment on the verdict As a preliminary matter, we note that General Motors filed a motion in this Court to dismiss this appeal or to strike the brief of appellant, citing appellant's failure to comply with the Wyoming Rules of Appellate Procedure. Pursuant to W.R.A.P. 4.02, the appellant, within ten days of filing his notice of appeal, must "file and serve on the appellee a description of the parts of the transcript which he intends to include in the record, and, unless the entire transcript is to be included, a statement of the issues he intends to present on the appeal." The rule further provides that, if the appellee determines a transcript of additional parts of the proceedings is necessary, given the appellant's statement of the issues, the appellee may arrange for these additions to the record. In the instant case, although appellant's counsel arranged for only a limited portion of the proceedings to be transcribed and transmitted to this Court, he neither designated those portions in accordance with the rule nor provided appellees with a statement of the issues within the time provided by the rule.

was entered on July 16, 1987, and this appeal followed. ²

Although the failure to comply with W.R.A.P. 4.02 is not jurisdictional, see W.R.A.P. 1.02, and although we denied General Motors' motion, we observe that, where there is no transcript or an insufficient transcript, we accept the findings of the trial court as the only basis for deciding issues pertaining to the evidence. Osborn v. Pine Mountain Ranch, 766 P.2d 1165 (Wyo.1989); Salt River Enterprises, Inc. v. Heiner, 663 P.2d 518 (Wyo.1983). Further, as pointed out by General Motors, counsel for appellant failed to include page references to the record in the statement of facts in his brief as required by W.R.A.P. 5.01(3). We recently cautioned counsel practicing before this Court regarding the importance of complying with this rule, V-1 Oil Company v. Ranck, 767 P.2d 612 (Wyo.1989), and we reiterate that admonition here. Although not dispositive in this case, the failure of counsel for appellant to comply with the provisions of the Wyoming Rules of Appellate Procedure certainly did not enhance appellant's cause before this Court.

In his first issue, appellant contends that the district court's refusal to give his jury instructions regarding bailments, and the degree of care related thereto, constituted prejudicial error. We find, however, that we do not have a sufficient record before us with which to properly evaluate appellant's contention. We thus must accept the findings of the trial court as the only basis for deciding this evidentiary issue. Osborn, 766 P.2d 1165.

Appellant's refused instructions essentially would have instructed the jury on the distinction between a gratuitous bailment and a bailment for mutual benefit, on the different duty of care applicable in each situation, and that an automobile rental contract creates a bailment for mutual benefit. The gravamen of appellant's contention is that the district court took from the jury the factual question of the type of bailment created in this case--assertedly a bailment for mutual benefit--and thereby prejudiced appellant by not allowing his claim against appellees to be tested by the higher standard of care associated with bailments for mutual benefit.

A gratuitous bailment has been defined as one in which either the bailor or the bailee is the sole beneficiary of the bailment. Rigby v. Suburban Rendco, Inc., 548 F.Supp. 202, 204 (D.Del.1982); 3 Am.Law Prod.Liab.3d, Bailments and Leases of Products § 36:5 (1987). In a gratuitous bailment the bailor has the minimal duty to warn of defects of which he has actual knowledge at the time of the lending and which are likely to cause injury. Miller v. Hand Ford Sales, Inc., 216 Or. 567, 340 P.2d 181, 183 (1959); Rigby A bailment for mutual benefit arises when both of the parties to the contract receive a benefit. Miller, 340 P.2d at 184. Generally, the bailor must receive compensation or some benefit from the loan of the...