For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Hall and Haneman. The opinion of the court was delivered by Francis, J. Proctor, J. (concurring). Hall, J. (dissenting). Haneman, J., joins in this dissent. Proctor, J., concurring in result.
Plaintiff Francisco Cintrone was injured while a passenger in a truck leased by his employer from the defendant. In his complaint in this action he charged that the accident in which he was injured resulted from defendant's negligent inspection or maintenance of the leased vehicle or from a breach of defendant's warranty that the vehicle was fit and safe for use. (Whether the alleged warranty was express or implied was not specified.) The trial court dismissed the warranty claim, and submitted the issues of defendant's negligence and plaintiff's contributory negligence to the jury, which found in favor of the defendant. Plaintiff's appeal from the adverse judgment was certified on our own motion before the Appellate Division acted upon it.
Plaintiff presents two grounds of appeal: the trial court erred (1) in dismissing the warranty count of the complaint and in refusing to submit that issue to the jury, and (2) in allowing the jury to consider the defense of contributory negligence. Study of the record has led us to the conclusion the judgment should be reversed because, on the facts proved, the contract for the leasing and use of the truck gave rise to an implied warranty that it was fit for the use contemplated by plaintiff's employer. Furthermore we hold that the evidence adduced with respect to the circumstances surrounding the happening of the accident created a jury question as to whether a breach of the warranty had been shown and whether if shown, it was the producing cause of the accident. In our judgment, however, it was not error to submit the issue of plaintiff's contributory negligence to the jury.
It has been suggested that the warranty or strict liability problem should not be considered by this Court because the issue was not raised seriously in the trial court. The record is to the contrary. The second count of the complaint is clearly grounded on breach of warranty that the "vehicle was fit and safe for use." Moreover, the pretrial order specifically contains the contention that defendant "in supplying said truck to plaintiff's employer warranted that it was fit for the purpose
for which it was being used * * *." The quoted allegation continued "and by the contract of rental undertook to keep said vehicle in good order and repair and that said defendant breached said warranty because it was unsafe and unfit for use because of the faulty brake system of which the defendant knew or should have known." (Emphasis added) Although the language may not be crystal clear, it cannot be concluded as a matter of law that the alleged warranty was expressly tied or limited to a claim of breach of defendant's undertaking to keep the vehicle in good order and repair. In setting forth its contentions defendant twice denied breach of warranty, and, in addition, asserted that if the warranty theory did apply, "it did not run in plaintiff's favor or behalf." The section of the pretrial order reciting the issues to be tried specified, among other things: "Was there a breach of warranty by defendant?"
At the close of the case, but before summations, the trial judge expressly dealt with the warranty issue. He said:
"Gentlemen, I still have under reservation a motion addressed to the dismissal of the second count with reference to warranty."
Then he advised counsel of his intention to limit his charge to the jury to the question of negligence. Plaintiff's attorney duly noted an objection. Thus the matter of warranty was clearly in the case and is justifiably presented to this Court for determination.
The intimation is made also that the warranty or strict liability issue should not be decided by us because (1) the case is a trivial one as to plaintiff's injury and monetary losses, (2) the presentation at the trial level was superficial on both sides, and (3) the evidence was sparse upon which to consider and determine an important legal principle. As we have said, the warranty question is raised properly on the record before us. Once that fact appears, a litigant is entitled to have his day in court. If the evidence adduced here created a factual issue as to whether a warranty of fitness which
extends to him was breached, or if the evidence created a factual issue as to whether defendant violated a duty which gives a cause of action based on strict liability in tort, it is the obligation of the judiciary to provide appropriate redress. Our duty to hear and decide an appeal does not depend on whether the quantum of damages suffered was great or little. (It may be noted that the case was not transferred to the district court. See R.R. 4:3-4.) Nor is it an appellate court function to weigh evidence. If the proof established a factual issue as to whether plaintiff's right was violated, we cannot refuse to hear him because we have doubts as to his credibility, or even if we think a jury would probably decide against him.
Defendant Hertz Truck Leasing & Rental Service is in the business of leasing and renting various types of motor vehicles to the public. Plaintiff's employer, Contract Packers, Inc., had leased nine trucks from defendant for use in its business. One of them was a 1959 Ford, 22 feet long and 11 feet high. The leasing of the trucks was on a long-term basis. Neither party put the lease in evidence but oral testimony was introduced as to its terms.
Contract Packers' place of business is on Warren Street, Jersey City, New Jersey. Hertz' garage and place of service of the trucks leased to Contract Packers is at 15th and Provost Streets in the same city. Under the lease the trucks were kept at Contract Packers' premises but Hertz agreed to service, repair and maintain them. The arrangement was that once a year or every 18,000 miles, whichever came first, Hertz was to provide "preventive maintenance." This meant that the vehicle was taken from the lessee (who was given a replacement) and brought to Hertz' garage. There the entire vehicle was examined and serviced; body, motor, brakes, springs, steering mechanism, lights, etc., after which it was returned to the lessee. In addition, every 14 days a Hertz mechanic was sent to Contract Packers' premises to inspect the trucks. He would go over them, checking the brake pedal reserve, the clutch, hand brake, lights, horn, steering and signal lights, etc. If repairs or adjustments were needed and could be made on the
spot, they were taken care of immediately. If not, the truck would be removed to the Hertz garage and if necessary a replacement vehicle provided.
Moreover, under the arrangement between the parties, at the end of each day's use the Contract Packers driver who had driven one of the trucks that day brought it to the Hertz garage where it would be "gassed up" for the next day. While this was being done, the procedure was for each driver to report any trouble he had or complaint he wished to make in connection with the operation of his truck. He would fill out an A.V.D. (alleged vehicle defect) form specifying the problem. If a complaint related to some minor difficulty that could be corrected quickly, it would be taken care of immediately and after the gassing operation was completed, the driver would be allowed to drive the vehicle back to his employer's place of business. (The impression gained from the record is that Contract Packers loaded the trucks during the night so as to have them ready to start on the delivery route in the morning.) If the difficulty required more attention but still was of a minor nature, the driver would be allowed to drive it back to his employer's yard. Then when Hertz' night shift mechanics came on duty (the garage operated 24 hours a day, seven days a week), they would pick up the truck, drive it to the garage, make the repairs or adjustments and return it to Contract Packers so as to have it available for morning use. There is some indication in the evidence that a simple repair or adjustment might be taken care of at the lessee's location without removal to the Hertz garage.
Whenever a needed repair which a driver had brought to Hertz' attention could not be made during gassing up, or on the lessee's lot at night, the truck would be removed from service and replaced by another. Then on completion of the work, the vehicle would be returned to the lessee and the substitute recalled. If a complaint related to allegedly defective brakes, the truck would be replaced. In such a situation the brake pedal reserve would be checked, and the master cylinder examined for fluid level. Thereafter the truck would be tried
out in the yard, and taken out on the road for a testing of the brakes at higher speeds. Following the remedial operation, the vehicle would be returned to the lessee.
The plaintiff Cintrone had been in the employ of Contract Packers as a driver-helper for three years before the accident in question which occurred on Monday, April 3, 1961. On Wednesday, Thursday and Friday of the previous week he had driven the leased 1959 Ford truck described above. He testified that at the end of the run on each of those days he reported the brakes were not working and needed adjustment. The three complaints were made at the Hertz garage while refueling by filling out two A.V.D. slips each day. One remained with Hertz, the other went to his employer. Hertz apparently had no record of the three slips allegedly left with it by Cintrone. Nor did plaintiff produce at the trial the copies which he said went to his employer. In any event, so far as Cintrone knew no repairs or adjustments were made to the brakes. The truck may have been used the next day, Saturday, but if so, it was driven by someone else. On two of the three days Cintrone referred to he had a helper with him. He said the helper left the employment shortly thereafter, but he made no effort to locate him for use as a witness at the trial.
On April 3, 1961 the Ford truck was scheduled for a delivery trip. Cintrone was to be the helper that day and one Robert Sottilare, another Contract Packers employee, the driver. The men reported for work at about 7:00 A.M. At the trial Sottilare testified that before they left the employer's lot Cintrone spoke to him about the brakes. Cintrone made no mention of this in his testimony. Sottilare said he tested the brakes before driving away and they seemed to be all right.
Sottilare drove from Jersey City to Dover, New Jersey where they had the first delivery. On the way the truck had to be stopped at red lights and sometimes in traffic. Cintrone testified he did not know whether this occurred once or twenty or fifty times. But he did not say he noticed anything unusual about the brakes or that they were not functioning. Sottilare testified that up until the time of the accident he had
no difficulty with the brakes; they were in operating condition; they did not fail in any way; "they wasn't perfect"; "they were a little low but they held."
After leaving Dover the men headed for Suffern, New York. About noontime, as Sottilare was going along Route 202, apparently within the limits of Suffern, he came around a bend in the road and saw an overhead bridge or trestle a hundred feet or so ahead of him. It was a low bridge, the clearance only 9 feet, 6 inches. Sottilare applied his brakes; they failed. The truck "just kept going" forward until the peak of its body hit the overhead structure. As Cintrone put it, he saw "the driver pumping the brakes. And he never stopped the truck because the brakes didn't work."
Both men were injured. They were removed to a hospital in Suffern, Sottilare by ambulance, Cintrone by police car. Cintrone was examined, given some pills and released; Sottilare remained there.
Cintrone drove the truck back to Contract Packers in Jersey City. He said he drove slowly, in first or second gear, using the hand brake and the low gear for slowing and stopping. On arrival in Jersey City he did not drive the truck to the Hertz garage and report the accident or any trouble with the brakes. He left the vehicle at his employer's lot. In fact, when testifying, he did not say he reported the accident to Contract Packers. The record is barren of any statement by him that he ever told Hertz or his employer about the accident or its details.
Sottilare signed a report of the accident on the evening of April 3. In it he said: "My truck hit a low railroad bridge." There was no note about the alleged failure of the brakes. He testified, however, that he told the person to whom he gave the report about the failure of the brakes.
The record is silent as to when the truck was used next after the accident. On April 11, eight days after the accident, presumably at the end of the day, the truck came to Hertz' garage. The testimony does not show who drove it there. An
A.V.D. form was made out to record a complaint that the brakes were faulty. The night foreman noticed that the "peak" of the truck body was damaged. At one point in his testimony he said he and one of the mechanics inspected and tested the brakes and found nothing wrong. The form dated April 11 and entitled "Foreman's Investigation of A.V.D." was produced at the trial. It contained a notation: "Brakes checked. Found to be in working order." The next two lines on the form after that comment were:
"Is A.V.D. confirmed: No:
If yes, probable cause: None."
The night foreman's signature and date and time appear at the bottom. The time noted was 7:00 P.M.
The notation on the form is contrary to the foreman's statement in another part of his testimony. He was asked what he did with the truck after the complaint was received that the brakes were faulty. He answered:
"We held the vehicle and repaired the defect in the braking mechanism."
The damage to the roof of the truck was repaired, although when it was done was not shown. Except for whatever time was required to do the body work, there is nothing to show where the truck was between April 3 and April ...