Gillis v. Farmers Union Oil Company of Rhame

• Decision Date: 24 August 1960
• Docket Number: Civ. No. 233.
• Citation: 186 F. Supp. 331
• Parties: Kenneth W. GILLIS, Plaintiff, v. FARMERS UNION OIL COMPANY OF RHAME, a corporation, and Edgar Weisz, Defendants.
• Court: U.S. District Court — District of South Dakota

186 F. Supp. 331

Kenneth W. GILLIS, Plaintiff, v. FARMERS UNION OIL COMPANY OF RHAME, a corporation, and Edgar Weisz, Defendants.

Civ. No. 233.

United States District Court D. North Dakota, Southwestern Division.

August 24, 1960.

Theodore Kellogg and Norbert J. Muggli, of Mackoff, Kellogg, Muggli & Kirby, Dickinson, N. D., for plaintiff.

Michael R. McIntee and Edwin O. Sjaastad, Williston, N. D., for defendant, Farmers Union Oil Co. of Rhame.

Myron H. Atkinson, Jr., of Cox, Pearce & Engebretson, Bismarck, N. D., for defendant Edgar Weisz.

REGISTER, Chief Judge.

This case was tried to the Court, without a jury, in Bismarck, North Dakota, commencing on July 27, 1960.

Federal jurisdiction results from diversity of citizenship and amount involved. Plaintiff is a citizen of the State of Minnesota. Defendant Edgar Weisz is a citizen of the State of North Dakota. Defendant Farmers Union Oil Company of Rhame, a corporation, is a corporation incorporated under the laws of the State of North Dakota, has its principal place of business in the State of North Dakota, and is a citizen of North Dakota.

Plaintiff's action is against both defendants. However, prior to trial, plaintiff made settlement with defendant Weisz as to the cause of action against him. Defendant Weisz cross-claimed against defendant corporation for damages for personal injuries and property damage he sustained as a result of the accident here involved. Defendant corporation, to such cross-complaint, denied negligence and alleged contributory negligence on the part of the plaintiff and cross-complainant. To plaintiff's complaint, defendant corporation also pleaded general denial, and contributory negligence on the part of plaintiff.

The case was, therefore, tried on the issues of the liability of defendant corporation to plaintiff and to defendant Weisz, and the amount of damages.

At all times here involved, Robert Shuck was the agent and servant and co-manager of the defendant corporation, acting in the course of his employment, and it is conceded that his actions and omissions, if any, were those of the defendant corporation.

On December 8, 1958, Sergeant Weisz (defendant Edgar Weisz) was at his paternal home, to which he had been called due to the death of his father. This was a farm home about five miles west and one mile south of Rhame, North Dakota. He had a 1956 Ford convertible automobile, with power steering and power brakes. December 8th was a very cold day. That morning he had gone to Rhame and purchased a battery from the defendant corporation. In the afternoon he attempted to start his automobile, without success. He requested his brother, who was going to Rhame in the afternoon, to stop into the place of business of defendant corporation and ask that a tow truck be sent out to tow his automobile into Rhame. He understood defendant corporation rendered such services as a part of its business. Defendant did, in fact, do so in the community, for a distance as far as twenty to thirty miles from Rhame, to build up good relations. Such services were regularly, and as a part of its business, furnished by defendant corporation to its customers in this area. The equipment used for such purpose was an International truck (oil tank truck). Mr. Shuck drove out to the Weisz home, in response to the request, and attempted, without success, to start defendant Weisz's automobile. Mr. Shuck carried with him in the truck that afternoon a heavy log chain for towing purposes. While defendant Weisz watched him, but without assistance or instruction on the part of Weisz, Mr. Shuck attached one end of the chain to the left rear spring shackle of the truck, and the other end near to the right bumper brace on the front end of the automobile. Shuck had done towing before. After hooking the automobile to the chain attached to the truck, Shuck pulled the automobile around the farmyard for some minutes, and over a distance of some 400 to 500 yards, in an effort to get the automobile started. During this time, Weisz was in the driver's seat of the automobile, trying to steer it and trying to get it started. When this effort failed, it was decided to tow the automobile into the corporation's heated garage in Rhame, and without further change as to the towing apparatus, and without further attention to the chain by Shuck or Weisz, Shuck proceeded to pull or tow the automobile on a county road from the Weisz home, northward, for a distance of about a mile, to United States Highway No. 12. The latter is a through highway with blacktop surface, which carries a substantial amount of traffic—which fact was known to both Shuck and Weisz.

The right bumper brace of the Ford automobile was offset approximately 19½ inches to the right, and the left spring shackle of the truck was offset approximately 21½ inches to the left. Shuck had had previous experience in towing vehicles (this was a part of the regular operations of the corporation) and knew that such manner of hookup would cause the towed vehicle naturally to trail in a position to the left of the towing truck. Shuck also knew that it was a necessary precaution in towing operations to have the tow chain properly fastened and to have the vehicles so that the towed vehicle would "track" directly behind the towing truck. Defendant Weisz was also possessed of such knowledge, and while he was in the automobile while it was being towed around the farmyard and on the county road, he had to exert considerable pressure to try to keep the automobile substantially behind the truck. Weisz had informed Shuck, prior to the towing, that his automobile had power steering and an automatic transmission. Shuck knew that an automobile with power steering, and no power, is difficult to manage—and that such difficulty is the greater during extremely cold weather.

During the towing operations in the farmyard, Shuck could and did see the towed automobile several times to the left of the truck through the rear-view mirror on the truck. On the county road, Shuck also saw through said mirror the automobile "weave" to the left of the truck and then back behind the truck, at times. According to Shuck's testimony, the tow chain was about 14 feet long, the spring shackle on the truck, to which one end of the chain was fastened, was about three to four feet from the back end of the truck, and the distance from the back end of the truck and front end of the automobile (as the latter was being towed) was approximately ten to eleven feet.

Shuck had arrived at the Weisz home at about four o'clock p. m.; he and Weisz started from said home for Rhame at about 4:30 or 5:00, just prior to dusk. At that time, no lights were lighted on either vehicle. Shuck stopped his truck on said county road, just prior to entering U. S. Highway No. 12—at that time he turned on the truck lights, full, but on dim. No further attention was paid to the chain being used. At that stop, it was decided that if Weisz's automobile started, he would turn on the automobile lights as an indication of that fact, for Shuck's attention. Prior to such stop, and during the towing operations, both in the farmyard and on the county road, Weisz had attempted to start the automobile, but without success.

After entering U. S. Highway No. 12, and after traveling a short distance thereon easterly, Shuck stopped atop a small knoll—this was due to the fact, according to his testimony, that Weisz had turned on the lights of the automobile. Weisz did not attempt to start his automobile while it was traveling on U. S. Highway No. 12.

Shuck also observed the Weisz automobile "weave" to the left of the truck, and then back behind the truck, at times, while they were traveling on U. S. Highway No. 12.

While stopped atop said knoll, Shuck observed plaintiff's automobile approaching from the east on said U. S. Highway No. 12, approximately three-quarters of a mile away. Plaintiff approached at a reasonable rate of speed (about 40 miles per hour) on his own right side of the highway (where he remained at all times here involved). Plaintiff, upon approaching the said truck, dimmed the lights of his automobile. During the time Shuck watched plaintiff's automobile approaching, he did not look in the rear-view mirror to see whether the towed vehicle was "weaving".

Just as the front end of plaintiff's automobile and the front end of said truck were approximately parallel, the Weisz automobile "nosed out" or "swung out" into the north lane of traffic, and a head-on collision occurred in said north lane of the said two automobiles. Shuck heard a "bang", felt a jerk, coasted the truck a short distance on the highway and stopped.

The two automobiles were both badly damaged and remained facing each other in said north lane of the highway until removed. Plaintiff and Weisz were severely injured, were removed to the hospital at Bowman, North Dakota, and later were taken to Dickinson, North Dakota, and transferred by air to Fitzsimons Army Hospital at Denver, Colorado, where they continued to receive care and treatment. Both plaintiff and defendant Weisz are, and were at the time of the accident, first sergeants in the United States Army.

At the place of the accident the highway was straight and fairly level—there being but a slight rise to the west. Short centerline strips of paint could be seen at intervals. In this general area at the time here involved, driving was rather hazardous, except at restricted speeds, due to the presence of small spots of ice at various places on the road—the conditions at the scene of the accident were those of the general area. There was some "glare-ice"; there was some "packed snow" in the vicinity of the accident, and a small amount of "blowing snow" on the surface. At the time of the accident the weather was cold—about 20 degrees below zero.

Failure on the part of the defendant corporation to produce the tow chain involved in the accident, though demanded by counse...