Carley v. Allen

• Decision Date: 01 November 1948
• Docket Number: 30692.
• Citation: 198 P.2d 827,31 Wn.2d 730
• Parties: CARLEY et ux. v. ALLEN et al.
• Court: Washington Supreme Court

198 P.2d 827

31 Wn.2d 730

CARLEY et ux. v. ALLEN et al.

No. 30692.

Supreme Court of Washington

November 1, 1948

Department 2

Action by Ira Carley and Josephine Carley, his wife, against Preston Allen and Mildred Allen, his wife, George Desmond and Jane Doe Desmond, his wife, and Lou Ziegler and Jane Doe Ziegler his wife, to recover damages for negligently repairing an automobile belonging to plaintiffs. From a judgment for the plaintiffs, defendants appeal.

Reversed with instructions.

Appeal from Superior Court, Kitsap County; H. G. Sutton, judge.

Ray R. Greenwood and Roy A. Holland, both of Port Orchard, for appellants.

Merrill Wallace, of Bremerton, for respondents.

SIMPSON Justice.

This appeal involves a charge of negligently repairing an automobile belonging to plaintiffs. The court entered judgment against defendants and they have appealed.

The assignments of error challenge (1) the correctness of the trial court's findings, conclusions, and judgment; (2) its failure to find contributory negligence on the part of respondents; (3) its refusal to grant the foreclosure of a lien as against respondents; and (4) its rejection of a motion to dismiss the action against appellants Desmond and Ziegler.

The controversy was brought about in the following manner Respondents owned a 1941 Chrysler automobile which was in need of repairs, and took it to appellants Allen who were conducting a general repair garage near Burley. Respondents were told by Allen that some work on the motor would have to be done in Tacoma. Allen then removed the motor from the car and delivered it to appellants Desmond and Ziegler, co-partners who were operating a machine and repair shop in Tacoma under the name of Desmond Motor Parts. At Desmond Motor Parts the block of the engine was rebored, new pistons were installed, and additional work was done on the motor block. W. H. Lawrence, a mechanic working at the Tacoma repair shop, installed in the motor block round ground pistons manufactured by the Tsungani Piston Company of Tacoma, which company specified that their pistons could be either cam, or round ground. The car was redelivered to respondents late in February, 1947. March 4, 1947, they started on a motor trip to Ohio. Prior to starting on the trip, Carley had drived the car seven hundred fifty or a thousand miles on short trips. On one occasion he operated it at a speed of fifty miles per hour. After crossing the Lake Washington bridge, he drove the car at about sixty miles per hour until he approached Moses Lake, at which place the car became sluggish and he gave it more gas to maintain his speed. A piston then broke and forced a connecting rod through the block of the motor. Respondents had the car towed to Port Orchard, at which place they had a new motor installed at a cost of five hundred seventy-five dollars.

The car had an overdrive mechanism which reduced the motor speed to that which would equal an ordinary car driven at forty-five or forty miles per hour. However, motors work harder when the overdrive is used.

Because of the fact that the charge of negligence is grounded upon the manner in which the pistons in respondents' engine were ground, we deem it necessary to refer to the evidence relating to the repair.

William D. Loudon, service engineer of the Chrysler sales division of Chrysler Corporation, testified that, the shape of the finished piston shipped from the Chrysler parts division was elliptical, and the semifinished pistons were round; the semi-finished pistons should be 'cam ground elliptical'; the effect of finishing a semi-finished piston circular would be that 'The piston would be likely to stick when the motor became heated.'

James M. Gwin, an automobile mechanic of twenty years' experience who had general supervision of the Richardson-Jensen's Motors, explained that when a motor is rebored 'you rebore the motor to fit the pistons.' Chrysler pistons are cam ground. Asked the meaning of 'cam ground' he stated:

'They are smaller on one side than the other. Q. That makes an elliptical shaped piston? A. That is right. Q. That elliptical shape--does that have to be determined by a micrometer? A. It is so close, you can't hardly see it--it is done with a machine. Q. And the measurements are taken by micrometer? A. Yes.'

George Kress, operator of the South Kitsap Motors for a period of ten years, testified that he received the Carley car when it was towed back from Moses Lake and supervised the task of installing a new motor in it. He said that the cost of rebuilding the old motor would exceed that of a new one because seven of the cylinders were scored very deeply, and the eighth one had broken the cylinder sleeve and thrown an arm into the water jacket. He said that the Chrysler specifications stated that their pistons should be cam ground. He gave the following testimony:

'Q. Now, from your experience, can you say, Mr. Kress, what caused this piston to bind in the cylinder wall? A. Well, a number of things could cause it. The real reason why that piston would bind would be from it not having enough clearance, and naturally it expanded to a size as great or greater than the cylinder it travelled in. When it became greater than the cylinder it travelled in, naturally it had to break, the piston would swell to beyond its size and would become larger than the cylinder it travels in.'

Mervin L. Hall, the mechanic at South Kitsap Motors who installed the new motor in respondents' car, testified that he had made an examination of the Carley motor when it was brought in from Moses Lake.

Another witness, W. H. Lawrence, had been engaged for twenty-five years as an automotive mechanic. His principal work was that of reboring motors and fitting pistons. He did the work on respondents' motor at Desmond Motor Parts and testified that:

'Q. In connection with this work, do you receive from the manufacturer of the pistons you install, a chart telling what lee-way or allowance to allow,--[Interpolation]

'Q. Do you receive such a chart with the pistons? A. Yes, always.

'Q. And these particular pistons that were installed in this car--this one, for instance, and the others in the same car? Do you know what factory they came from? A. Yes.

'Q. Where? A. Tsengani Piston factory in Tacoma.

'Q. Have you been installing their pistons for some time? A. I think the first Tsengani piston I installed was 1929.

'Q. And have you been using those pistons continuously, ever since? A. Yes.

'Q. State whether or not you have installed Tsengani pistons in other Chrysler automobiles on previous occasions? A. Yes, I have.

'Q. In models as late as '41? A. '41-'42, yes, I have.

'Q. Have you any idea how often you have installed them----

'The Court: In Chryslers. A. I put the first one in in 1929,----

'The Court: Would you say, one or a hundred? The Witness: Oh, I would say several hundreds.

'Q. Several hundreds? A. Yes.

'Q. And to your knowledge, have you had any trouble, subsequently, about it? A. No, Sir.

'Q. And have any of these pistons been round ground? A. Round ground, yes.

'Q. Not all of them? You cam grind them, too? A. Yes.

'Q. I'll ask you whether or not in your opinion, round ground pistons can be used as well as cam ground pistons? A. Oh, yes, definitely. You can use either one.

'Q. Is there anything un-workmanlike, to your knowledge, in using a round ground piston product in a Chrysler car? A. Not a bit. Not a bit.

'Q. What clearance did you allow, if you remember, between the piston wall and the side wall of the cylinder in this job? A. 2-1/2 to 3 thousandths.

'Q. What is that? 2-1/2 to 3 thousandths of an inch? A. Yes, on this particular type of piston. * * *

'Q. Mr. Lawrence, when you finished this job, in your opinion was it done as carefully as you do any other job? A. Yes.

'Q. Is there any way in grinding, a mistake could be made, so they wouldn't fit right or work right? A. Well, it would be possible, but that is double-checked.

'Q. How is it double-checked? A. Well, the first thing you do, is rebore the block and then you start to fit your piston. You measure up the block and then fit the piston. And then you leave them in the hole and check the thickness,----

'Q. And did you do that in this case? A. Yes.

'Q. Do you have any independent recollection of this job? A. Yes.

'Q. And you did a good workmanlike job? A. Yes.

'Q. And used good material? A. Yes.

'Q. Showing you this exhibit, marked, Defendant's Exhibit #1 [unused piston], you notice the slot down at the side? Will you explain to the court what that is for? A. That is to take care of the expansion of the piston. These pistons come in what we call, 'semi-finished' condition. They are just roughly turned. This slot is not completed--not completed in this piece, here, (indicating on exhibit) or not completed here. We place this piston, first, in the lathe, and rough cut off the extra part to get it down to grinding size, leaving ten thousandths of an inch to be taken off in grinding,--in grinding it down to fit the particular cylinder. Then we fit the pistons. Then we come to the slot on this particular piston. We saw it all through.

'Q. In the cam ground pistons, do you cut that on through? A. Definitely not, because the pistons will not stand up, but will break, because there is no support.

'Q. No outer wall support from the block, you mean? A. None, whatever.

'Q. This distance is the same distance from the block all around? A. All around, that is right.

'Q. What is the purpose of the cam grinding, if you know? A. Well, the purpose,[31 Wn.2d 735] --the theory on cam grinding--is the theory that the pistons get hot and she rounds up of her own accord. This fits tight on the two trusses on these two sides. As she...