Sproul v. Cuddy

THE COURT.

Plaintiff has filed a notice stating that she appeals “from that certain judgment rendered on the 7th day of August, 1952, in favor of the defendants and against the plaintiff above named, and the whole thereof.” We have examined the clerk’s transcript on appeal and find in it no such judgment although the said transcript has been certified by the trial court as including all of the papers used or considered in the determination of the matter appealed from. We have also examined the original file in this case, No. 591959 in the trial court, and find in it no such judgment. There is included in the clerk’s transcript a minute order of August 7, 1952, which includes, “Motion by attorney for defendant to dismiss 1st and 3rd causes of action is by the court granted. Cause dismissed.”

Plaintiff had filed a first amended complaint containing three causes of action, the first two alleging negligence and the third alleging breach of warranty. They set out that plaintiff had undergone an operation and was unable to bear weight on her right leg; that she rented an “invalid walker” device from defendant; that because of negligence on the part of defendant the “invalid walker” was in a condition not fit for -the use for which it was rented and that as. a proximate result of defendant’s negligence and breach, of

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warranty she fell and sustained further injury, and sought damages to compensate her therefor.

Defendant denied negligence and denied any breach of warranty. The second cause of action was dismissed by the court as being substantially the same as the first cause of action. Defendant interposed a seventh special defense, pleading a document which recited that the device was delivered to Mr. Chester H. Sproul and contained the following:

“Licensee—Take Notice—Licensor uses great care to have all of its equipment in good order and repair, gives no warranty expressed or implied, as to condition, quality or any other matter of any equipment sent out, and will in no way be responsible for damages resulting from use thereof. Licensee acknowledges that the above merchandise and/or equipment has been inspected and received in good condition and accepted as is, and the Licensee agrees to save and hold harmless the Licensor, for any damage sustained in the use of said merchandise and/or equipment.”