B. & B. Building Material Co., Inc. v. Winston Bros. Co.

• Decision Date: 08 August 1930
• Docket Number: 22117.
• Citation: B. & B. Building Material Co., Inc. v. Winston Bros. Co., 158 Wash. 130, 290 P. 839 (Wash. 1930)
• Court: Washington Supreme Court
• Parties: B. & B. BUILDING MATERIAL CO., Inc., v. WINSTON BROS. CO.

290 P. 839

158 Wash. 130

B. & B. BUILDING MATERIAL CO., Inc., v. WINSTON BROS. CO.

No. 22117.

Supreme Court of Washington

August 8, 1930

Department 2.

Appeal from Superior Court, Superior County; Batchelor, Judge.

Action by the B. & B. Building Material Company, Inc., against the Winston Bros. Company. From a judgment for plaintiff defendant appeals.

Affirmed in part, and remanded for correction in part.

Peters Powell, Evans & McLaren, of Seattle, for appellant.

Nelson R. Anderson, of Seattle, for respondent.

FULLERTON J.

In the year 1928, the appellant, Winston Bros. Company, was engaged in the work of constructing a power plant on the Skagit river at a place called Diablo. A part of the work consisted of the removal of rock and other material from certain places on the banks and in the bed of the river. The material, preparatory to removal, was loosened by blasting. It was then gathered up by a steam shovel and loaded into dump trucks, from whence it was carried to a dumping ground and there deposited. The place selected as a dumping ground at the time here in question was on the top of a somewhat steep declivity. The trucks, on reaching the declivity, were turned and backed to its edge, then by means of a hoisting gear the front end of the bed of the truck was raised, causing the material to slide out of its rear end and fall over the declivity.

The respondent, B. & B. Building Material Company, Inc., owns a number of trucks, such as those above described, which it uses in connection with its business. Some time in May, 1928 the appellant approached the respondent and sought to hire two of the respondent's trucks for a period of ten days for use in its work. The respondent agreed to let the trucks to the appellant, and a verbal contract was entered into, expressing the terms and conditions of the letting. The terms of the contract in the main are not in serious dispute. The trucks were in the city of Seattle at the time, and the respondent agreed to send them on their own power to a place called Rockport, where they were to be received by the appellant and from thence transported by it to the place of work by rail. The appellant agreed to pay for the use of the trucks $3.25 per hour for the time they were actually in use on the work, and to allow for a day of eight hours for the time taken in transporting the trucks from Rockport to the place of work. The respondent agreed to pay the wages of the drivers of the trucks, and to pay for such oil and gasoline as the trucks used while in operation. It was also a part of the contract that the trucks were, at the conclusion of the term of the contract, to be returned to Rockport by the appellant and there delivered to the respondent. As to the further terms of the contract, there is a dispute between the parties. The respondent contends that the trucks were turned over to the absolute direction and control of the appellant at Rockport, and that thereafter the appellant was to be responsible for any injury to the trucks arising from accident or negligence. The appellant, on the other hand, contends that the agreement was that the respondent was to have control of the management and operation of the trucks through their drivers, and that it had no other right to control them than to direct the work they were to perform.

The trucks were sent to the work in the manner agreed upon, the one on May 12, 1928, and the other a few days later, each in charge of a driver hired by the respondent. On reaching the place of work, the trucks were put to work hauling material from the steam shovel to the dump; the trucks failing in line and taking their turn with a number of other trucks engaged in the same work. After the period of the original hiring had expired, its term was extended by mutual agreement for another period of thirty days. The appellant maintained an employee at the dump to direct the drivers of the trucks to the particular place on the dump for unloading and to keep them from backing the trucks closer to the declivity than safety permitted. At about 7 o'clock in the evening of June 18, 1928, the driver of one of the trucks received a load of material from the steam shovel and proceeded to the dump. When he reached the dump, the attendant was not there. He proceeded, however, to place the truck in a position to dump its load. He backed the truck towards the declivity, stopped it, and was reaching for the lever used to put the hoisting gear in motion, when he felt the rear wheels of the truck sink. He immediately jumped from the truck, and the truck itself rolled down the declivity and was demolished so completely as to destroy its value.

In this action the respondent seeks to recover from the appellant the value of the truck. Its complaint is in form that commonly used in an action for conversion. The appellant answered, denying the conversion alleged, and pleading affirmatively its version of the contract of hire entered into between it and the respondent. It further alleged that the damage to the truck occurred while the truck was in the direct and immediate charge of the driver employed by the respondent, and solely through the fault and negligence of the driver of the truck. The affirmative matters in the answer, in so far as they differed from the respondent's version of the contract of hire, were put in issue by a reply, and the cause was tried by the court sitting without a jury. The trial resulted in a judgment in favor of the respondent for the value of the truck, which the court found to be $3,000.

From the facts as stated, it is at once apparent that the liability of the appellant depends upon the view taken of the disputed terms of the contract. If the contract was that the respondent undertook to perform a specific work to be pointed out to it by the appellant in its own way and in its own manner, subject to no direction or control in the way and manner of performance, then it is possible that the respondent must itself bear the loss caused by the destruction of the truck. But we cannot think that such was the contract. As we read the record, the contract was a simple contract of hire, by...