Berhow v. Kroack

195 N.W.2d 379, 1972 Iowa Sup. LEXIS 774

• Court: Supreme Court of Iowa
• Decided: February 25, 1972
• Docket: 54469
• Status: Published

Opinions

RAWLINGS, Justice.

Action at law by bailee plaintiff, Donald Berhow (Berhow), seeking recovery against defendants, Kalman J. Kroack (Kroack) and bailor Jensvold, Inc. (Jens-vold), for injuries sustained as the result of a nighttime highway collision of Kroack’s automobile with the rear of a Jensvold owned and Berhow operated tractor. Kro-ack is not here involved. The case was submitted on special verdict in the form of written interrogatories. Jury found for Berhow. Thereafter trial court found answers to interrogatories submitted were irreconcilably inconsistent, and pursuant to Jensvold’s motion entered judgment notwithstanding the verdict. Berhow appeals. We affirm.

The afternoon of November 17, 1966, Berhow went to Jensvold’s place of business in Buffalo Center to get his tractor, which was there being repaired. Finding the repairs uncompleted Berhow entered into an oral agreement with Melvin Wirt jes, Jens-vold’s manager, under which Berhow rented a temporary replacement tractor. At approximately 5:30 P.M., Berhow and Wirt-jes drove to Jensvold’s equipment storage lot. Arrangements were there made for Berhow to take a used 560 International “Farmall”. Difficulty was encountered in starting it. Resultantly Berhow did not leave the lot until 6:00 P.M., by which time it was completely dark. Neither Wirtjes nor Berhow then inspected the tractor with regard to a red rear warning light. Additionally, no explanation as to operation of the tractor’s lighting system was either sought or given. When Berhow left the lot only the headlights and a small white “working” light located on the rear of the tractor were lit.

After going east on Highway 9 for one mile, Berhow turned north onto State Highway 322, a busy blacktop road. He had traveled approximately two miles when the aforementioned collision occurred. Defendant Kroack testified he was traveling north at 55 m. p. h., did not see the tractor, and was uncertain even after the accident as to what had been hit. He admitted seeing a white light ahead of him prior to the impact, but thought it was either an approaching motorcycle or car with one headlight. A postaccident inspection of the tractor revealed the statutorily required rear red warning light was inoperable.

To the extent here relevant Berhow’s petition alleges, (1) Jensvold was negligent in renting him a tractor without an operable rear warning light, and failing to apprise him of such defect; (2) these acts of negligence were proximate causes of the collision. Jensvold asserts Berhow was con-tributorially negligent in operating the vehicle on a public highway after dark without displaying a red warning light as required by law.

Trial jury found Berhow entitled to damages from Jensvold. Judgment was accordingly entered. Subsequently Jensvold moved for judgment notwithstanding the verdict which was sustained.

On appeal from this adjudication Berhow contends trial court erroneously (1) entered judgment notwithstanding the verdict, (2) overruled his objections to specified jury instructions given.

I. Prefatorily it is essential we determine the nature of Berhow’s action against Jensvold.

It is to us evident the oral rental agreement entered into by Jensvold and Berhow created a bailment for mutual benefit, which in effect makes it one for hire, Jensvold being bailor, Berhow bailee. See 8 Am.Jur.2d, Bailments, §§ 6, 10; 8 C.J.S. Bailments § 8a.

II. Under such a bailment there is imposed on the bailor, by operation of law, an obligation similar to an implied warranty of fitness in the sale of personal property, i. e., the thing or property hired shall be reasonably suitable for the use known to be intended. See Meester v. Roose, 259 Iowa 357, 359-360, 144 N.W.2d 274; Frumer & Friedman, Products Liability, § 19.02 (2); 8 C.J.S. Bailments § 25a; Annot. 68 A.L.R.2d 850. See also Ekco Products Company v. United States, 312 F.2d 768, 771-772, 160 Ct.Cl. 75; Penton v. Favors, 262 Ala. 262, 78 So.2d 278, 281-282.

III. Additionally, the bailor is under a separate duty to use reasonable care to the end that the chattel supplied be reasonably safe for the use to which it is to be put. See Brandon v. Roy, 259 Iowa 1271, 1274-1275, 147 N.W.2d 810; Restatement, Second, Torts, § 408; 8 C.J.S. Bailments § 25a.

IV. Consequently, a “for hire” bailee’s action to recover for injuries caused by an allegedly unsuitable bailed chattel may be (1) in contract for breach of the implied warranty of fitness or (2) in tort for negligence in failing to use reasonable care to ascertain it was in fact suitable. See Chrischilles v. Griswold, 260 Iowa 453, 459, 150 N.W.2d 94; Giarratano v. Weitz Company, 259 Iowa 1292, 1305, 147 N.W.2d 824; Russell & Co. v. Polk County Abstract Co., 87 Iowa 233, 238-239, 54 N.W. 212; Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388, 391; 8 Am.Jur.2d, Bail-ments, §§ 150, 285; 8 C.J.S. Bailments § 25; Annot. 46 A.L.R.2d 404, 408; cf. Blakeley v. Estate of Shortal, 236 Iowa 787, 790-791, 20 N.W.2d 28.

It therefore follows Berhow could have asserted against Jensvold an action either ex contractu or ex delicto, or both. See Iowa R.Civ.P. 22; Nelson v. Iowa-Illinois Gas & Elec. Co., 259 Iowa 101, 106-107, 143 N.W.2d 289; Presthus v. Western Mutual Insurance Company, 257 Iowa 1035, 1039-1040, 135 N.W.2d 549; Connell v. Hays, 255 Iowa 261, 271, 122 N.W.2d 341; Kunzman v. Cherokee Silo Co., 253 Iowa 885, 891, 114 N.W.2d 534; Eklof v. Waterston, 132 Or. 479, 285 P. 201, 203.

V. The question now to be resolved is whether Berhow, by his action against Jens-vold, seeks relief premised on breach of contract or negligence, or both. In that regard Berhow’s one count petition as against Jensvold alleges, in relevant part:

“The defendant, Jensvold, Inc., was negligent in the following particulars which negligence was a proximate cause of said accident and the resulting injuries :

“a. In leasing to this plaintiff a tractor that was not equipped with a workable rear red light.

“b. In failing to apprise this plaintiff that the tractor leased to him was not equipped with a workable red rear light.

“c. In permitting this plaintiff to drive said tractor upon a public highway when lights were required without apprising him that said tractor was not equipped with a workable rear red light.” (Emphasis supplied).

This allegation, and attendant theory upon which the case was tried, clearly discloses Berhow’s action against Jensvold was predicated on negligence alone, i. e., failure to exercise reasonable care to the end that the tractor entrusted was reasonably safe for the use to which put. See Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388, 391-392; 8 C.J.S. Bailments § 49 at 508.

By the same token it is equally evident Berhow neither directly nor by implication declared a breach of implied fitness warranty, i. e., the tractor was reasonably suitable for the use known to be intended. See A.A.A. Parking, Inc. v. Bigger, 113 Ga.App. 578, 149 S.E.2d 255, 258; 41 Am.Jur., Pleading, §§ 95-99; 71 C.J.S. Pleading §§ 17-18.

Despite some hold-mending arguments to the contrary, Berhow here candidly concedes the foregoing by this statement in his reply brief:

“The plaintiff could sue for the breach of the contract or for the tort created by the breach. The former would be a suit ex contractu and the latter would be a suit ex delicto. This was a suit ex de-licto claiming negligence growing out of the breach of the bailment contract. That was the plaintiff’s position at the inception of the suit and his position remains the same at this time.”

Additionally, the case was unquestionably tried and jury instructed on the ex delicto theory. We are thus restricted to an action premised on negligence alone. See Smith v. Newell, 254 Iowa 496, 499-500, 117 N.W.2d 883, and citations; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1095-1096, 104 N.W.2d 562.

In light of the foregoing it is apparent negligence, contributory negligence, and proximate cause instantly come into play. See The Code 1966, Section 619.17; Andrews v. Struble, 178 N.W.2d 391, 398 (Iowa); Bauman v. City of Waverly, 164 N.W.2d 840, 844-845 (Iowa); Schultz v. Gosselink, 260 Iowa 115, 120-121, 148 N.W.2d 434.

VI. Our review is on errors assigned. Iowa R.Civ.P. 334. Also, since this is an appeal from a judgment notwithstanding the verdict, the evidence must be viewed in that light most favorable to plaintiff. Dobson v. Jewell, 189 N.W.2d 547, 550 (Iowa).

VII. Inceptionally it is understood the nighttime operation of a tractor on a public highway without a lighted rear red light affixed thereto constitutes negligence per se, absent legal excuse. See The Code 1966, Sections 321.384, 321.387, 321.398; Kohler v. Sheffert, 250 Iowa 899, 906, 96 N.W.2d 911; Reed v. Willison, 245 Iowa 1066, 1071-1072, 65 N.W.2d 440; Semler v. Oertwig, 234 Iowa 233, 256, 12 N.W.2d 265. Furthermore, this standard is made statutorily applicable to the conduct of both Jensvold and Berhow by Code § 321.381. Cf. Restatement, Second, Torts, § 469. Absent any sufficiently specific or effective objections the jury was accordingly instructed. See Iowa R.Civ.P. 196; Andrews v. Struble, 178 N.W.2d 391, 399 (Iowa).

Moreover, an examination of the record fails to disclose any showing of legal excuse on Berhow’s part. See Florke v. Peterson, 245 Iowa 1031, 1035-1036, 1037-1038, 65 N.W.2d 372.

VIII. Berhow argues, however, his negligence could not inure to Jensvold’s benefit since the purpose of Code §§ 321.381, 321.-384 and 321.387 is to protect other motorists, not the bailors of vehicles operated on a public highway.

It is doubtful that issue was even sufficiently raised or the court adequately alerted thereto in course of trial. Furthermore, it is here only argumentatively suggested, for the first time, in Berhow’s opening brief. See e. g., Galvin v. Suchomel, 186 N.W.2d 662, 665 (Iowa).

In any event it is not timely raised on appeal, being here first asserted by Ber-how in his reply brief. For that reason alone this belatedly assigned error cannot now be considered. See Iowa R.Civ.P. 344(a) (4) (Third); Wolfswinkel v. Gesink, 180 N.W.2d 452, 457 (Iowa).

IX. By instruction 22 the jury was, in material part, told:

“Because of the numerous claims and defenses involved in this case, the court will require you to return a special verdict. A special verdict consists of findings on the issues of fact involved in the case. Your verdict will be in the form of answers to interrogatories propounded to you by the court and findings as to amount of damages. From your answers and findings the court will enter the appropriate judgment.”

See generally Iowa R.Civ.P. 205, 206; Dezsi v. Mutual Benefit Health & Accident Ass’n, 255 Iowa 1027, 1037, 125 N.W.2d 219; Johnson v. Mutual Life Ins. Co., 253 Iowa 1218, 1231-1232, 115 N.W.2d 825; Hiller v. Lenz, 253 Iowa 64, 66, 111 N.W.2d 278; Ipsen v. Ruess, 241 Iowa 730, 737, 41 N.W.2d 658; Sparks v. Long, 234 Iowa 21, 26, 11 N.W.2d 716; 38 F.R.D. 199-301; 53 Am.Jur., Trial, §§ 1063-1093; 89 C.J.S. Trial §§ 526-573; 52 Kentucky L.J. 852; 35 Yale L.J. 296; Annots. 6 A.L.R.3d 438, 91 A.L.R.2d 776; 90 A.L.R.2d 1040.

Then over Berhow’s generalized objections, neither raised nor argued as a basis for reversal on this appeal, these instantly relevant interrogatories were submitted and answered by the jury as shown:

“(C) Was Berhow negligent in any of the particulars as alleged in Instructions 1, 2 and 3 and as explained in these Instructions ? Answer: YES

“(D) If your answer to (C) is ‘yes’, then, was Berhow’s negligence either the sole or a concurring proximate cause of the collision? Answer: NO

“(E) Was Jensvold negligent in any of the particulars as alleged in Instruction 2? Answer: YES

“(F) If your answer to (E) is ‘yes’, then, was Jensvold’s negligence either the sole or concurring proximate cause of the collision? Answer: YES”

As heretofore stated the jury found Berhow entitled to damages from Jensvold. Judgment was accordingly entered. Thereafter Jensvold, absent any objection by Berhow, moved for judgment N.O. V. In sustaining same trial court held:

“The jury found that the plaintiff Ber-how was negligent in operating the tractor without a rear red light in violation of statute. This was the only specification of negligence submitted against Ber-how. The finding is fully supported by uncontradicted evidence. There was no evidence or claim of legal excuse for the violation of statute.

“The jury found that Jensvold, Inc. was negligent either (1) in leasing the tractor without a workable rear red light, or (2) in permitting Berhow to drive upon a public highway when lights were required without apprising him that the tractor was not equipped with a workable rear red light. These were the only specifications submitted against Jensvold, Inc. There was sufficient evidence to support a finding of negligence on the part of Jensvold, Inc. as to either or both of these specifications.

“The lack or absence of a proper rear red light is essential to and inherent in a finding of negligence against Berhow and a finding of negligence against Jens-vold, Inc. under either specification.

“The jury found that the negligence of Berhow was not a proximate cause of the collision, but that the negligence of Jens-vold, Inc. was a proximate cause. Since the basic element of the negligence of both Berhow and Jensvold, Inc. was the lack of a proper rear red light, the findings on proximate cause are inconsistent. The court is aware that the question of proximate cause is generally for the jury, but this rule is not applicable here.

“The jury could have found under the evidence that the negligence of both was a proximate cause or that the negligence of neither was a proximate cause, but findings that one was and the other was not are inconsistent and irrational.

“While the court did not so instruct, it is the opinion of the court that Berhow’s negligence in violation of statute was established as a matter of law in the absence of any claim or evidence of legal excuse. In effect, Berhow acknowledged operating without a rear red light in order to establish his claim of negligence against Jensvold, Inc.

“With Berhow’s negligence established as a matter of law and the jury’s findings on causation limited to findings either that the negligence of both was a proximate cause or the negligence of neither was a proximate cause, it appears that as a matter of law plaintiff could not recover either because of failure of his case against Jensvold, Inc. or because of his own contributory negligence. If Berhow established a case against Jensvold, Inc., it necessarily involved establishing his own contributory negligence.”

There is to us no alternative but to here adopt trial court’s reasoning, supra.

X. Berhow has at no time challenged the propriety of a judgment N.O.V., or trial court’s power and authority, under existing circumstances, to grant same. See Iowa R. Civ.P. 206. Rather he here contends entry of that judgment was instantly erroneous for two other separate and distinct reasons.

His initial claim is trial court erred in substituting its finding as to proximate cause for that of the jury by answer to special interrogatories. In this regard he maintains proximate cause is a question of fact for jury determination, not one of law for the court. Mindful of our holdings, supra, we find this contention instantly unconvincing.

While generally the question of proximate cause is for the jury, in exceptional cases it becomes one of law to be determined by the court. Iowa R.Civ.P. 344 (f) (10); e. g., Andrews v. Struble, 178 N.W.2d 391, 398 (Iowa). In this respect we have held, where the facts are so clear and undisputed, and relation of cause and effect so apparent to every candid mind that but one conclusion may be fairly drawn therefrom, the question of proximate cause becomes one of law. E. g., Boegel v. Morse, 251 Iowa 1253, 1256, 104 N.W.2d 826; Noble v. Edberg, 250 Iowa 1331, 1335, 98 N.W.2d 741; Dunham v. Des Moines Railway Co., 240 Iowa 421, 427, 35 N.W.2d 578.

Alternatively Berhow asserts, even though negligent himself, and such was a proximate cause of the collision, he is still entitled to recovery. His argument in this regard is, in essence, while contributory negligence concededly bars recovery in a tort action, such rule of law does not apply to an action predicated on breach of contract. See 17A C.J.S. Contracts § 525 (1), at 1018; Annot. 68 A.L.R.2d 850, at 867.

Having already determined Berhow’s action stands éntirely in tort there is no need to again discuss this issue.

XI. Also assigned as error is trial court’s overruling of Berhow’s exceptions to instructions 8 and 15. There is no need to extend this opinion by here repeating them.

Berhow objected to both of these instructions on the ground they failed to instruct regarding his right to assume the tractor would be equipped with an adequate and operable rear red light until he either knew or should have known to the contrary. We find no reversible error in that purported omission.

This court has consistently held instructions given must be construed as a whole. E. g., Leaders v. Dreher, 169 N.W.2d 570, 577 (Iowa). And if the point raised by objection is substantially covered in other instructions there is no basis for complaint. See City of Des Moines v. Peterson, 261 Iowa 736, 737-738, 156 N.W.2d 126; State v. Shipley, 259 Iowa 952, 957-958, 146 N.W.2d 266.

Instantly the alleged omission was substantially covered by instruction 14 to which Berhow offered no objection. More specifically trial court, by instruction 14, set forth at length the duty owed by Jens-vold to provide Berhow with a vehicle reasonably fit for the purpose known to be intended. This instruction clearly incorporates the material element which Berhow now alleges was omitted in instructions 8 and 15.

Furthermore, if instruction 14 was not as complete or specific as Berhow may have desired he now has no cause for complaint. This court has consistently held a party cannot assert, on appeal, the insufficiency of an instruction as to which he has not timely requested a more complete or specific statement. See State v. Kaster, 160 N.W.2d 856, 859 (Iowa); LaSell v. Tri-States Theatre Corp., 235 Iowa 492, 503, 17 N.W.2d 89; Hansen v. Nelson, 240 Iowa 1298, 1311, 39 N.W.2d 292; Buskol v. VanEman, not contained in Iowa Reports, 6 N.W.2d 147, 148.

XII. Finally, for reasons stated above, any attempt to review the instant case as one standing in contract between bailor and bailee would be contrary to established principles of law. Harsh as the result may be, it still remains this action stands in law, and cannot be evaluated as one in equity.

We have reviewed all errors properly assigned by plaintiff on appeal and find therein no basis for reversal.

Affirmed.

All Justices concur, except REYNOLD-SON and BECKER, JJ., who dissent, and HARRIS, J., who takes no part.