Hogland v. Klein, 33462

• Decision Date: 03 July 1956
• Docket Number: No. 33462,33462
• Citation: 298 P.2d 1099,49 Wn.2d 216
• Court: Washington Supreme Court
• Parties: Everett A. HOGLAND, doing business as Hogland Transfer Company, Appellant, v. John KLEIN and Jane Doe Klein, his wife, Respondents.

Page 216

49 Wn.2d 216

298 P.2d 1099

Everett A. HOGLAND, doing business as Hogland Transfer Company, Appellant, v. John KLEIN and Jane Doe Klein, his wife, Respondents.

No. 33462.

Supreme Court of Washington, Department 1.

July 3, 1956.

Clarence J. Coleman, Everett, for appellant.

Leslie R. Cooper, Everett, for respondent.

FINLEY, Justice.

This appeal involves an action by the plaintiff to recover the contract price for moving a building and a counterclaim by the defendants for damages to the building, occurring during the moving operations.

The plaintiff, Everett A. Hogland, d/b/a Hogland Transfer Company, orally agreed with defendants to move a certain building (owned by defendants) from the Arlington, Washington, airport to the defendants' farm. Plaintiff agreed to furnish the timber, dollies and other equipment necessary to be used in preparing the building for moving for the sum of $25 per day. It was agreed that, under the direction of plaintiff's supervising foreman, defendant John Klein and his employees would prepare the building for moving, and that the defendants would pay an additional $25 per day for the services of the foreman. In addition, defendants agreed to pay truck hire to plaintiff transfer company for the actual moving of the building in accordance with the rate schedule as established by the public service commission of the state of Washington. Plaintiff and his employees were experienced house movers. Defendant Klein was not.

It was necessary to divide the building into two parts in order to move it. Plaintiff's supervising foreman gave explicit directions as to the work to be done by Klein and his employees regarding the preparation of the first section of the building for moving. It was moved successfully to Klein's premises. As to the second part of the building, the foreman did not so closely supervise the actual lowering of the building onto two large 75-foot timbers placed upon dollies, but defendant followed the foreman's directions and did as he was told in that regard. After Mr. Klein and his employees completed preparation of the second part of the building for moving, the plaintiff's employees hooked the section of the building to its truck. After it was moved only a short distance, one of the large 75-foot supporting timbers (furnished by the plaintiff) broke, and the building was practically demolished. At this point plaintiff's employees apparently abandoned the project. Thereupon, the defendant, using plaintiff's house-moving dollies and certain other equipment of the plaintiff, proceeded with the project and moved the damaged building to his farm. Thereafter, the plaintiff transfer company commenced this action to recover $1,734.77, alleged to be due under the oral agreement for the use of its equipment and for the services of its supervising foreman. The defendant cross-complained for damages to the building which, allegedly, resulted from plaintiff's negligence. The trial judge, applying the doctrine of res ipsa loquitur, held that the defendant was liable and indebted to the plaintiff in the sum of $1,259.77, and disallowed plaintiff's claim for rental of his equipment for the period of several days that it was used by defendant after the accident to the building. He allowed defendant an offset of $900 damages, representing the difference in the value of the building before and after the accident. Judgment was entered for the plaintiff in the sum of $359.79. The plaintiff appealed.

We are of the opinion that the following facts as found by the trial court clearly warrant an application of the doctrine of res ipsa loquitur in the case at bar:

'V. That the plaintiff furnished the equipment, including supporting timber, which were, under the supervision of the plaintiff's foreman, installed preparatory to moving of the building by the defendant and his employees.

'VI. That after completion of the building for moving by the defendant, under the instructions of the plaintiff's supervising foreman, the plaintiff's employees hooked up the building to the plaintiff's truck and started to move the same and moved the same a short distance when one of the supporting timbers furnished by the plaintiff broke while under the management and control of the plaintiff's employees, resulting in damage to the building.

'VII. That the accident would not have happened in the ordinary course of events if the plaintiff or his employees had used reasonable care; that the plaintiff and his employees had the best opportunity to ascertain the causes of the accident and that the plaintiff has failed to come forward with evidence to explain the cause of the accident.' (Emphasis supplied.)

The appellant contends that the facts in the instant case do not warrant an application of the res ipsa loquitur rule. He argues that he was not in exclusive control of the timber which broke, causing the damage to the building; but that actually it was the respondent's crew who performed all the work of loading the building onto the timbers and thereafter letting it down on the dollies. However, the requirement, that the offending instrumentality be under the management and control of the defendant or his servants, does not mean actual physical control but refers rather to the right of control at the time of the accident. Legal control or responsibility for the proper and efficient functioning of the instrumentality which caused the injury and a superior, if...