Hendricks v. Wilder Const. Co., 34930
| Decision Date | 30 April 1959 |
| Docket Number | No. 34930,34930 |
| Citation | 338 P.2d 754,54 Wn.2d 170 |
| Court | Washington Supreme Court |
| Parties | L. A. HENDRICKS, Respondent, v. WILDER CONSTRUCTION CO., Inc., a corporation, and United Pacific Insurance Company, a corporation, Appellants. The State Department of Highways, Defendant. |
Livesey, Kingsbury & Livesey, by George Livesey, Jr., Bellingham, for appellants.
Williams & Morris, by James M. Morris, Seattle, for respondent.
This suit cencerns the rental of certain dump trucks used in the performance of a state highway contract; and the principal issue in the trial court was whether the appellant was to pay the respondent, a common carrier, a dump-truck rental based upon a six-cubic-yard rate, or a seven-cubic-yard rate.
The appellant Wilder Construction Co., Inc., hereafter referred to as the appellant, is a corporation engaged in the contracting business in the state of Washington. In the spring of 1956, it secured a contract from the state to construct a roadbed on state highway No. 1, in Skagit county.
In order to construct the roadbed, it was necessary for the appellant to haul to the job site a material known as 'borrow,' which was obtained from a pit located a short distance east of the site on secondary highway 1-H.
Double axle ('six wheeler') trucks traveling over secondary highway 1-H were subject to a weight limitation of 36,000 pounds including the weight of the truck. All of the trucks used on this job for hauling borrow were double-axle trucks subject to the 36,000-pound limitation.
Shortly after work began the respondent, who owned several double-axle dump trucks, contacted Gordon Hayes, treasurer of the appellant corporation, among whose duties was the contacting of truck owners for the purpose of renting trucks, and offered to rent his trucks to the appellant. The respondent was informed by Mr. Hayes that appellant had sufficient trucks but that if more trucks were needed, he would be contacted.
Several days later, Mr. Hayes, on behalf of the appellant, called the respondent and asked for either six- or seven-yard-capacity six wheel dump trucks with 'ten hundred rubber.' The only six-wheel dump trucks which respondent owned were eight-yard trucks. Because of their weight, no more than six yards of 'borrow' could be hauled legally over secondary highway 1-H, and, according to the testimony of Mr. Hayes, it was agreed that only six-yard loads would be hauled. Respondent put his trucks to work about March 19, 1956.
Prior to this time, some trucks hired by the appellant had been hauling seven yards of borrow, while others had been hauling six. The appellant received notice that the state highway patrol proposed to weigh all trucks hauling on secondary highway 1-H, as it appeared that the trucks hauling seven yards were overweight. During the next few days, the appellant had all of the trucks weighed and as a result, decided to limit all loads to six yards. Thereafter, all trucks hauling borrow for the appellant along state highway 1-H hauled six cubic yards and were paid at the six-cubic-yard rate. Two trucks left the job at this time because their owners did not want to furnish their trucks as six-yard trucks. The respondent was never paid a seven-yard rate except when his trucks were used on another road where the weight limit was higher.
For the hauls made over secondary highway 1-H, the respondent was paid on the basis of six-yard hauls. He cashed the checks which he received monthly, with vouchers attached showing the basis on which the amounts were calculated, and made no complaint until after the work was completed on August 3, 1956, although on July 17, he had written to the public service commission and asked whether a contractor could rent an eight-yard capacity truck and pay for only the number of yards actually hauled. In a reply to this...
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