Clarke v. Bohemian Breweries, Inc.

• Decision Date: 17 February 1941
• Docket Number: 28112.
• Citation: 7 Wn.2d 487,110 P.2d 197
• Parties: CLARKE v. BOHEMIAN BREWERIES, Inc.
• Court: Washington Supreme Court

110 P.2d 197

7 Wn.2d 487

CLARKE v. BOHEMIAN BREWERIES, Inc.

No. 28112.

Supreme Court of Washington

February 17, 1941

Department 2.

Action by James Clarke against the Bohemian Breweries, Inc., to recover damages for injuries consisting of burns sustained in an explosion. Judgment for plaintiff and defendant appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Chas W. Greenough, judge.

Witherspoon Witherspoon & Kelley, of Spokane, for appellant.

Clyde H. Belknap and Tustin & Chandler, all of Spokane, for respondent.

BEALS Justice.

James Clarke, the plaintiff in this action, was an experienced automobile body and fender repairman. He had also worked in and around a service station, and had also for some time operated a garage of his own. During the month of March 1939, plaintiff and one Clarence Glass formed a partnership for the purpose of engaging in the business of repairing and painting automobile bodies and fenders. Mr. Glass had had considerable experience in working with automobiles, most of his time, however, having been devoted to painting them.

Defendant, Bohemain Breweries, Inc., has for a long time been engaged in the brewery business, also in Spokane. One L. W. Warner, of Yakima, was employed by defendant as an independent hauler in the delivery of its beer. He owned a Kenworth semi-trailer, 1931 model, and suggested to defendant that a sign which had been painted on his truck, referring to a brand of beer brewed by another than defendant, should be changed, and defendant agreed to pay for the changing of the sign, which involved a considerable paint job on the truck.

About two months after the formation of the partnership between plaintiff and Glass, the firm orally contracted with the defendant to paint several of its trucks. The partnership was to take the trucks at defendant's place of business, and return them thereto after the completion of the paint job. The work was to be performed at the partnership's establishment, at an agreed price for each truck. In making the deal, Mr. Glass represented the partnership, and Mr. R. B. Muzatko represented the defendant. Mr. Glass submitted a written proposition, which was accepted by defendant, and which reads as follows:

'The undersigned hereby agrees to paint three (3) trucks for the Bohemian Breweries, Inc., for Twenty-five Dollars ($25.00) per truck.

'The undersigned further agrees that he will paint these trucks as directed and will complete the paint job taking not more than two (2) days per truck, and further agrees to do a first class job which shall be acceptable to the Bohemian Breweries, Inc.

'Signed C. Glass

'Dated at Spokane, Washington, this 11th day of May, 1939.'

It was also agreed between the parties that the partnership would take possession of its trucks at defendant's plant, and return them after completion of the job.

At the time the arrangement was made, Muzatko informed Glass that at some later date there would be work to do on the Kenworth truck, which Glass knew belonged to Warner. The work on two of the three trucks referred to in the agreement had been completed according to plan, and the third truck was being painted, when Glass was informed that the Kenworth truck was in Spokane, ready for the painting which had theretofore been discussed. Glass called at defendant's place of business, estimated the cost of the paint job, and told Mr. Muzatko that the work desired would cost ninety-five dollars, whereupon Mr. Muzatko said, 'All right, paint it,' it being understood that the work on the third truck belonging to defendant, which was then being done, would be interrupted so that the work on the Kenworth truck could be completed spcedily, and the truck made ready to resume operations as soon as possible.

At this time the Kenworth truck was under the control of one Kelly, a driver employed by Mr. Warner. The price agreed upon for the paint job was to cover all labor and material. Glass then interviewed Kelly, informing him that Before the Kenworth truck could be painted, it would have to be steam cleaned, this operation not having been referred to in the conversation with Muzatko. Kelly then drove the truck to a steam cleaning establishment selected by Glass, who was to pay for the cleaning out of his contract price of ninety-five dollars. After Kelly drove the truck to the cleaning establishment, he instructed Glass concerning the method of operating the truck, showing Glass the ignition switch and the choke.

Meanwhile, plaintiff went to the cleaning establishment to get the truck, but Glass drove the truck to the partnership's place of business, followed by plaintiff in another car.

The Kenworth truck was very large, the top of the hood being between five and six feet from the floor level, the hood being approximately six feet in length, the entire length of the truck amounting to from thirty-eight to forty feet. The crank at the front of the hood was approximately thirty inches from the floor level. The spark, ignition switch, choke and headlight switch were operated from the dashboard by buttons, which the operator pulled out or pushed in, as desired. To turn on the ignition, the operator would pull a button toward him, the spark being retarded or advanced by a similar operation. When the spark was advanced, the spark lever was pushed in to a position flush with the dashboard.

At the partnership's shop the truck was placed in an appropriate position for painting, the work being completed by the following Monday. It then being desired to send the Kenworth truck to defendant's brewery, Glass endeavored to start the motor, but after trying for some time to start it, concluded that the battery was low. At this time Glass knew that Kelly, the driver of the truck, had left for Yakima, and Glass, after his unsuccessful attempt to start the truck's motor, went to defendant's brewery, where he asked one of the foremen if anyone who could drive a Kenworth truck was available. The foreman then told an employee of defendant named Dickson to go with Glass and assist in moving the Kenworth truck. In defendant's amended answer, referring to the matter of the sending of Dickson to assist Glass, defendant in its second affirmative defense alleged that it 'loaned for this particular service Wiley C. Dickson, one of its servants.' When Dickson and Glass arrived at the paint shop, they had some conversation about the mechanics of the truck and the location of the ignition switch. The truck being an old model, its appliances differed from most trucks in current use. Glass indicated the ignition switch, and Dickson endeavored to start the truck, but was unsuccessful. After some discussion, Glass mounted the cab, taking control of the different switches, while Dickson attempted, without success, to start the engine by cranking. From twenty to thirty minutes were consumed in making these attempts to start the truck.

During this time, plaintiff was standing nearby, but taking no part in the operation. The advisability of starting the truck by priming the carburetor was discussed, and Glass provured some gasoline in an open can, handing the same to Dickson, who poured some of the gas into the carburetor, then attempting, again unsuccessfully, to start the motor by cranking, Glass having again assumed his position in the cab. Plaintiff then picked up the open can containing the gasoline, and in plain sight from the position occupied by Glass in the cab of the truck, undertook to pour more gas into the carburetor, the ignition switch being turned on and the spark advanced. Dickson was then at the end of the hood in a position to crank the truck, his vision being obscured by the hood of the truck.

Plaintiff testified that he told Dickson to delay any further effort to crank the truck while plaintiff primed the carburetor. Dickson testified that he did not hear this request or any other warning by plaintiff. Plaintiff testified that when he told Dickson to delay action, Dickson did not answer him. Glass testified to the same effect. The ignition switch being turned on and the spark not having been retarded, and plaintiff pouring gas into the carburetor, when another attempt was made by Dickson to crank the truck, an explosion occurred, with the result that plaintiff was severly burned.

Thereafter plaintiff instituted this action for the purpose of recovering damages from defendant on account of his injuries. The case was tried to the court, resulting in a judgment in plaintiff's favor for $7,050, six thousand dollars of which represented general damages. From this judgment defendant has appealed.

Error is assigned upon the sustaining of objections interposed by respondent to certain questions propounded to Mr. Glass on cross-examination; upon the rejection of certain evidence offered by appellant; upon the refusal of the court to sign certain findings of fact and conclusions of law proposed by appellant; upon the denial of appellant's motion for judgment in its favor notwithstanding the decision, or in the alternative for a new trial; and upon the entry of judgment in favor of respondent, appellant contending not only that respondent was entitled to no judgment at all, but that the amount awarded by the trial court was excessive.

The record shows some disputed questions of fact. Respondent and Glass testified that after Dickson had primed the carburetor, and while Dickson was still standing at the head of the hood, he turned to respondent and said, 'Give it another prime,' to which respondent replied, 'O. K., wait a minute,' then took up the can containing the gasoline and poured some gas into the carburetor, whereupon Dickson reached down and turned the crank.

Dickson testified that he did not request respondent to...