Dick v. Reese

• Decision Date: 01 April 1966
• Docket Number: No. 9688,9688
• Citation: 412 P.2d 815,90 Idaho 447
• Parties: Glenn DICK, d/b/a Glenn Dick Equipment Co., Plaintiff-Respondent, v. T. E. REESE, also known as Tom Reese, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 815

412 P.2d 815

90 Idaho 447

Glenn DICK, d/b/a Glenn Dick Equipment Co., Plaintiff-Respondent, v. T. E. REESE, also known as Tom Reese, Defendant-Appellant.

No. 9688.

Supreme Court of Idaho.

April 1, 1966.

Alexanderson & Davis, Caldwell, for appellant.

W. Anthony Park, Boise, for respondent.

SMITH, Justice.

This is an appeal from a judgment against appellant allowing recovery to respondent of $1,170.46 for labor and parts furnished in the repair of appellant's truck, together with interest and costs; also, from an order denying appellant's motion for a new trial.

On January 23, 1961, appellant (defendant) took his White Freightliner diesel truck to respondent (plaintiff) for the purpose of ascertaining what was wrong with the differentials. After respondent's mechanic had inspected the truck, and at appellant's instance and request, respondent caused the differentials to be completely overhauled and rebuilt, using Universal D-A 90 weight No. 000 mineral oil as the lubricant for the rebuilt units. Respondent then submitted a bill of $720.30, which appellant paid in four installments.

Immediately after completion of the repair job, appellant began using his truck in transporting cattle from Idaho to Yerrington, Nevada, an 860-mile round trip. On the first trip to Nevada the differentials overheated. Upon returning from this trip, appellant contacted respondent's mechanic, and informed him of the overheating. The mechanic advised appellant to make additional trips, which he did, and again the differentials overheated. After 3,000 miles of travel, the mechanic recommended that the oil be changed, and again Universal D-A 90 weight mineral oil No. 000 was used as the lubricant. On succeeding trips the differentials heated, which appellant reported to respondent. After 6,000 miles of travel, at the suggestion of the mechanic, respondent again disassembled and examined the differentials. The examination revealed that the bearings, the worm shaft, and all iron parts, were rusted and corroded with a scum; the bearings were also pitted.

Respondent again repaired the truck's differentials, commencing the job on June 9, 1961. This time appellant furnished the oil for the differentials. On June 10, 1961, respondent took a sample of the oil which was in the differentials at the time of the second repair job, and a sample from the barrel out of which that oil had been taken, and submitted the samples to a laboratory for analysis. The laboratory report showed that the oil taken from the truck had a high acid content; whereas the oil taken from the barrel showed a neutral or no acid content. Appellant began operating his truck and continued to do so for the next 100,000 miles before he had the differentials examined a third time. This time he had the units disassembled by a truck repairman other than respondent. Examination showed the absence of bushings on the spider in the front differential; again the differentials were in need of repair.

Respondent, from time to time, demanded of appellant that he pay for the second repair job, which amounted to $1,170.46. Appellant refused, contending that respondent did not perform a reasonably good repair job in the first instance, and that his faulty performance of that job rendered necessary the second overhauling of the truck's differentials. Respondent thereupon commenced action for recovery of the sum of $1,170.46, the cost of the second repair job.

The cause was tried to the court sitting without a jury. The court found that, at appellant's request, respondent had provided services and materials amounting to $1,170.46 in the repair of appellant's truck, which appellant had refused to pay; that respondent performed an earlier job on the same truck about January 23, 1961, and although the differentials of the truck did not perform properly after that repair job, appellant paid for the same, knowing that the truck's differentials were not performing in a proper manner. The court further found that respondent had performed the earlier repair job in a proper manner according to the evidence presented. The court also found that the second repair job of about June 9, 1961, was performed properly and without fault on respondent's part.

The trial court then concluded that appellant had not proved by a preponderance of the evidence that respondent was negligent in performing the repair services. The court entered judgment accordingly in respondent's favor for $1,170.46 with interest and costs. This appeal resulted.

Appellant assigns as error the trial court's ruling that appellant had the burden of proving negligence on the part of the respondent with respect to the January 23, 1961, repair job.

In his complaint respondent alleged that on or about June 9, 1961, he furnished parts and performed services on the appellant's truck. Appellant, in his answer, admits that respondent performed such services and that appellant experienced no difficulty thereafter. Appellant then alleges that in the first overhaul respondent used the wrong kind of oil and 'did not exercise his common law duty to do a reasonably good job and that the difficulty arising out of the repair on or about June 9, 1961, was caused solely by plaintiff.'

The defense of respondent's improper performance of the first contract in avoidance of liability for payment of the second repair job, constituted an affirmative defense (I.R.C.P. 8(c)); therefore, the burden of proof was upon appellant to show that the first repair job was performed in an improper manner. Paurley v. Harris, 77 Idaho 336, 292 P.2d 765 (1956). Moreover, the general rule is that the burden of proving a garageman's breach of duty in the repair of a motor vehicle rests upon one who claims that the repairs were defectively made. Sam White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834 (Tex.1960); Kettle v. R. J. Loock & Co., 199 Md. 95, 85 A.2d 459 (1952); Carley v. Allen, 31 Wash.2d 730, 198 P.2d 827 (1948); Pugh v. Mackie Motors Co., 189 N.W. 674 (Iowa 1922). Appellant's aforesaid assignment is without merit.

Appellant, by assignment of error, next asserts that the evidence is insufficient to support the finding and judgment of the trial court.

The relationship between an automobile owner, leaving an automobile at a garage for storage or repairs, and the garageman, is that of bailor and bailee. D. A. Schulte, Inc. v. North Terminal Garage Co., 291 Mass. 251, 197 N.E. 16 (1935); Smith v. Cohen, 116 Pa.Super. 395, 176 A. 869 (1935); Carty v. Lemmon Auto Co., 72 S.D. 559, 37 N.W.2d 454 (1949); Vollmer v. Stoneleigh-Maple Terrace, 226 S.W.2d 926 (Tex.Civ.App.1950); Farrell-Calhoun Co. v. Union Chevrolet Co., 21 Tenn.App. 554, 113 S.W.2d 419 (1937).

'* * * the law implies a contract (between bailor and bailee) that the work shall be done with due care and competent skill, and that the article, when the work is completed, shall be reasonably fit for the purpose or use intended, in contemplation of which the parties entered upon the bailment.' 8 Am.Jur.2d Bailments, § 220; Aronette Mfg. Co. v. Capital Piece Dye Works, Inc., 6 N.Y.2d 465, 190 N.Y.S.2d 361, 160 N.E.2d 842 (1959); Stevens v. Moore, 24 Tenn.App. 61, 139 S.W.2d 710 (1940); Douglass v. Hart, 103 Conn. 685, 131 A. 401, 44 A.L.R. 820 (1925).

In automobile repair cases, the garageman must exercise ordinary care and skill in making the repairs. Morgan v. Mixon Motor Company, 10 Ill.App.2d 323, 137 N.E.2d 504 (1956); Frantz v. General Motors Corporation, 176 F.2d 80 (3rd Cir. 1949); Carley v. Allen, supra; Thomson Motor Co. v. Story, 59 Ga.App. 433, 1 S.E.2d 213 (1939); Burrichter v. Bell, 196 Iowa 529, 194 N.W. 947 (1923); Russell's Express v. Bray's Garage, 94 Conn. 520, 109 A. 722 (1920).

The owner of a motor vehicle may establish negligence of a garageman in the performance of the work and labor on the vehicle, by circumstantial, as well as by direct evidence. This is but a statement of the rule that facts may be proven by circumstantial, as well as by direct, evidence. Coe v. Esau, 377 P.2d 815 (Okl.1963); Hepp v. Quicked Auto & Supply Co., 37 N.M. 525, 25 P.2d 197 (1933); Greenwood v. Jack, 175 Minn. 216, 220 N.W. 565 (1928). But, where circumstantial evidence is relied upon, the circumstances must be proved, and not themselves be left to presumption and inference. Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215 (1953); Dent v. Hardware Mutual Casualty Co., 86 Idaho 427, 388 P.2d 89 (1963).

A prima facie case of negligence is established by the bailor if his evidence 'has shown to the satisfaction of the court that the damage could not ordinarily occur without negligence.' Jones v. Warner, 57 Wash.2d 647, 359 P.2d 160, 92 A.L.R.2d 1404 (1961). The bailee, garageman, then has the burden of going forward with the evidence and showing the exercise of ordinary care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence. Such burden is met by proof of freedom from negligence. The burden is then upon the bailore to show that negligence of the bailee resulted in the damage to the bailed property. Jones v. Warner, supra; Aronette Mfg. Co. v. Capital Piece Dye Works, Inc., supra; Bielunski v. Tousignant, 17 Ill.App.2d 359, 149 N.E.2d 801 (1958); Prettyman v. Hopkins Motor Co., 139 W.Va. 711, 81 S.E.2d 78 (19...