(dissenting). The majority holds in terms of strict liability in tort, Santor v. A & M Karagheusian, Inc., 44 N. J. 52, 63-67 (1965), that “the leasing agreement gave rise to a continuing implied promissory warranty [by the lessor] that the leased trucks would be fit for plaintiff’s employer’s use for the duration of the lease.” Fitness for use is stated to mean “that the car will not fail mechanically during the rental period.” The failure giving rise to liability may come from any cause whatever — a defect in manufacture or design, some condition developing independently and subsequently, whether or not discoverable by ordinary care in inspection or testing, and even from fatigue or wearing out. It is made plain that whether the lease is for one day or a period of jTars, whether the rented vehicle is new or used or whether the lessor undertakes to service and maintain it during the lease makes no difference as far as the nature and extent of liability is concerned. I assume also that any attempt to limit responsibility by the leasing contract would be found unavailing. It therefore seems to me it has to be said that the effect of the majority opinion is to make the supplier of a vehicle for hire practically an insuror, on policy grounds, at least as far as the lessee, his employees and passengers are concerned, *462for the consequences of any mechanical failure during the lease, assuming, of course, that the failure was the proximate cause of the injury or damage and that the plaintiff was not guilty of contributory fault. (I may say at the outset that I have no quarrel with extending strict liability to commercial transactions other than outright sales, in this day when many articles are rented for use rather than purchased, or including among the beneficiaries of the doctrine those beyond the lessee himself in the categories mentioned.)
Up to this point in the development of the law in this field, both in this State and elsewhere as far as I have been able to determine, strict liability in tort has been imposed only in case of a damage-causing defect in manufacture or design existing at the time it left the hands of the manufacturer or the supplier sought to be charged. The so-called warranty is not a promissory one. Henningsen v. Bloomfield Motors. Inc., 32 N. J. 358 (1960); Courtois v. General Motors Corp., 37 N. J. 525 (1962); Jakubowski v. Minnesota Mining and Manufacturing, 42 N. J. 177 (1964); Santor v. A & M Karagheusian, Inc., supra (44 N. J. 52); Schipper v. Levitt & Sons, Inc., 44 N. J. 70 (1965). For leading cases elsewhere, see, e. g., Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P. 2d 897 (Sup. Ct. 1962); Putman v. Erie City Manufacturing Company, 338 F. 2d 911 (5 Cir. 1964). This was also the basis of liability in the bailment case of Delaney v. Towmotor Corporation, 339 F. 2d 4 (2 Cir. 1964), relied on by the majority.
The “defect” criterion does offer difficulties which have become apparent in the practical application of the strict liability doctrine. What is a “defect” ? How is it related to the usual or expected life of the article and its quality and price? We have earlier had occasion at least to mention and make some comment on these ramifications. See Courtois, supra (37 N. J., at p. 543), Jakubowski, supra (42 N. J., at p. 185) and Santor, supra (44 N. J., at p. 67). And courts are still grappling with the difficult problem of the basis- and extent of strict liability against the seller of a used chattel. Granted *463also that in the case of a lease of a motor vehicle for hire, not only are the problems just mentioned frequently present in complicated measure, but in addition we have particularly great reliance by the lessee on the lessor as well as the important factor of placing a potentially dangerous mechanism in the stream of highway traffic. While the responsibility of such a lessor should be a commensurately heavy one, and the matter of how to define and limit it is certainly not an easy question, it ought to be approached, as a policy matter, from the standpoint of balancing all the interests involved. Not to be overlooked is the obvious economic impact on this particular service industry in the light of the important function it has come to serve in today’s society. In my view, the majority goes too far in imposing strict liability for all leased vehicle failures irrespective of cause — a much greater burden than has been so far imposed on any analogous entrepreneur.
I would think that it would be both fair and adequate to say that a vehicle renter ought to be subject to strict liability in tort for the consequences of “defects,” in the Henningsen sense of that word, existing at the time of each particular rental and should only be liable for happenings during the lease occasioned other than by such “defects” on a negligence basis, i. e.j lack of reasonable care in inspection, repair or replacement and preventive maintenance prior to the particular lease (or during the course of it when the rental is an extended one and the lessor undertakes the obligation of periodic service and maintenance during the period). Indeed, an undertaking by the lessor to service and maintain the trucks during the lease period might be thought of as negating any complete warranty. A rented motor vehicle is hardly comparable to the absolute liability situations of explosives or packaged food or bottled drugs. Many things happen to an automobile during use, including sudden and spontaneous brake failure, which can neither be connected with defective manufacture nor prevented by the most careful prior servicing, and such happenings seem even more likely to occur when the driver is not the owner but merely hiring transportation. If *464the lessee of a car were to ride on a public bus or railroad train instead, the transportation company would not be under absolute liability to him if he were injured, no matter what the cause, but would be subject only to the duty of exercising a high degree of care. It seems to me unjustified to impose a so much greater obligation in the rented car situation.
Dealing specifically with the case at hand, the circumstances are such that I do not think that this Court ought to consider the warranty theory. The presentation of plaintiff’s case indicates to me that he had abandoned it. While the complaint contained a second count alleging only that the “vehicle was fit and safe for use” and a breach thereof, and the pretrial order repeated the contention but expressly tied it to the undertaking by “the contract of rental * * * to keep said vehicle in good order and repair,” plaintiff’s counsel made no mention at all of it in his opening (as the trial judge pointed out) and dealt only with negligence — breach of duty of ordinary care in maintenance and repair.
Nothing but that duty appears to have been thought of during the plaintiff’s case until defendant moved to strike the warranty count at the conclusion of plaintiff’s evidence (decision on which was reserved by the trial judge and granted after the proofs on both sides had been concluded). Plaintiff’s proofs were not directed to a warranty theory and I doubt that they make out a case thereon. (Indeed the presentation at the trial level on both sides was superficial and the evidence sparse on which to consider and determine a landmark legal principle. Perhaps this was because the ease appears to be quite a trivial one, the plaintiff having only a $3.00 hospital bill and but small other out-of-pocket expenses, with the suit started on the day before the statute of limitations would have barred it.) The terms of the lease upon which to ground a thesis of strict liability were not introduced. Although the majority says they were testified to, the only real proofs along this line came on defendant’s case from the night foreman of defendant’s Jersey City garage who spoke solely of the servicing practices with respect to the Hertz trucks used by plaintiff’s employees. The majority finds it necessary to bring in a book*465let circulated by defendant about its truck leasing service which is not in evidence, as well as a magazine article and advertisement, all published long after this lease and accident. Moreover, it seems to me, that plaintiff offered no sufficient evidence of what the alleged mechanical failure or defect was, although such proofs should have been available through defendant’s records if the failure had actually occurred. I had thought that under our decision in Jakubowski, supra (42 N. J., at pp. 183-184), at least this minimum quantum of direct or inferential proof is required of a plaintiff in any strict liability case. All in all, the warranty theory projected on this appeal is at best only a fortuitous circumstance.
Nor would plaintiff be prejudiced, in my opinion, if this Court declined to consider it. The primary issue in the case, which the trial court charged the jury to determine first, was what brought the accident about, i. e., the fact question of whether the driver was trying to take an eleven-foot-high truck through an overpass having a clearance of only nine and one-half feet and that any brake failure had nothing to do with the accident. The nature of the jury request for further instructions is as well open to the interpretation that an affirmative answer to this question was the basis of its general verdict of no cause of action — a result which the jury could very properly reach under the proofs. While I fully appreciate that an appellate court may not ordinarily weigh the evidence, it does not reverse and order a second trial unless a trial error has been prejudicial, R. R. 1:5-3 (b), and in deciding that question, it looks at the realities of a situation. Not only do I see no error in the circumstances here, but, even if there were, plaintiff was not harmed.
I would affirm the judgment of the trial court.
Haneman, J., joins in this dissent. Proctor, J., concurring in result. For reversal — Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino — 5. For affirmance — Justices Hall and Haneman — 2.