Knowlton v. Sandaker
| Decision Date | 10 January 1968 |
| Docket Number | No. 11175,11175 |
| Citation | 150 Mont. 438,436 P.2d 98 |
| Parties | Billie L. KNOWLTON, Administratrix of the Estate of Charles Dwight Knowlton, Plaintiff and Appellant, v. Maurice SANDAKER, Fruehauf Corporation, a Corporation, Rice Truck Lines, a Corporation, Defendants and Respondents. |
| Court | Montana Supreme Court |
McDonough & Cox, Dale Cox (argued), Glendive, for appellant.
Anderson, Symmes, Forbes, Peete & Brown, Weymouth D. Symmes (argued), Crowley, Kilbourne, Haughey, Hanson & Gallagher, Bruce Toole (argued), Billings, for respondents.
Billie L. Knowlton, wife of Charles Dwight Knowlton, deceased, and administratrix of his estate, sued Maurice Sandaker, Fruehauf Corporation, and Rice Truck Lines, a corporation, to recover damages for the wrongful death of the deceased. At the close of plaintiff's case, Rice Truck Line's motion for a summary judgment, made pursuant to Rule 56, M.R.Civ.P., was granted.
The motion of respondent Sandaker and Fruehauf Corporation for an involuntary dismissal made pursuant to Rule 41(b), M.R.Civ.P., was also granted. Plaintiff, hereinafter referred to as the appellant, was denied her motion for a new trial made under Rule 59, M.R.Civ.P. Appellant specifies to this court as issues for review the rulings on these motions.
The facts of this case are as follows. Respondent Sandaker was the owner of a Mack truck with a tank mounted on the chassis, and a tank trailer which was used in conjunction with the truck.
Sandaker leased the rig to respondent Rice Truck Lines, which Company then employed Sandaker to drive the rig and carry petroleum products for Rice.
The second provisions of the lease agreement between Rice and Sandaker required the lessor to keep the rig in good condition and to bear the costs of repairs necessary to keep the rig in that condition.
A minor leak had developed in the truck tank and also in the trailer tank. Sandaker, in accordance with the lease agreement, decided to have these leaks welded.
In view of the fact that the tanks had hauled combustible petroleum products, it was necessary to have them cleaned before they could safely be welded.
With the intention of having the tanks cleaned, Sandaker on June 8, 1964, drove the rig from his place of business in Glendive, Montana, to Fruehauf Corporation in Billings, Montana. Fruehauf has the facilities to clean tanks.
The process used to clean tanks which have held petroleum products is known as degassing. The usual degassing process consists of flushing the inside of the tank with steam, while closing all the valves on the tank to allow a water buildup. This vaporizes the petroleum products within the tank. The tank is then ventilated to remove the vapors. Often this is accomplished through the use of a blower, which is basically a fan. The process is completed through the use of a testing device known as an explosimeter or 'snifter.' This device measures the concentration of combustible petroleum vapors within the tank. If the concentration is too high to allow safe welding, the tank is steamed again.
The record indicates that on the morning of the 8th, the tank truck was steamed, but not ventilated, by Fruehauf. It was then taken to Billings Tank, which used a blower on it and welded it without incident.
During the afternoon of the 8th, the trailer tank was steamed until approximately 4:30 p. m. It was then tested with a snifter, which registered zero or safe for welding. Sandaker picked up the trailer tank around 5:00 o'clock, and drove the rig back to Glendive with the intention of fixing the trailer tank himself.
The importance of the above transaction is that without blowing, the vapors within the trailer tank were allowed to recondense and the tank was unsafe for welding. Appellant argues that Fruehauf should have known, when Sandaker did not pick up the trailer tank until very late in the day, that he could not have it welded that day, and thus should have used its own blower or warned Sandaker about this dangerous condition.
Fruehauf contends that the only directions given it were to steam the tank. Fruehauf's service manager testified that he knew the two tanks were to be welded upon, but assumed that the trailer tank would, as was the truck tank, be taken to Billings Tank for welding. Fruehauf knew Billings Tank had, and regularly used, their own blowing device. Fruehauf contends that even though the trailer tank was picked up late in the day, the welding job to be done on it was slight and could have been done in the remaining part of the day. It had no reason to assume that Sandaker would not take the tank to Billings Tank. Therefore it was not negligent, they contend, in failing to ventilate the tank or to warn Sandaker of the condition of the tank if it was not ventilated.
Sandaker, upon his return to Glendive, intended to weld the trailer tank himself. His testimony indicates that when he climbed into the tank, he observed a greasy residue on the bottom. The residue had a strong oily odor. He decided not to weld himself and instead called B & H Welding Shop in Glendive to see if they could do it.
Deceased Knowlton, an employee of B & H, was assigned the job of welding the tank. He tested the tank with an explosimeter for about ten minutes. Shortly after he had gotten into the tank, the explosion which killed him occurred.
Sandaker testified that he had told the manager of B & H that he was skeptical of the tank and asked whether they had a snifter to test it. The manager testified that Sandaker told him that it would be easy to weld and could be done within five minutes.
The record is clear, though, that neither the manager nor Knowlton placed any reliance on assurances that the tank was clean. The manager warned Knowlton twice not to do the job if he had any doubts. Another welder employed by B & H testified that each welder employed by that firm was responsible for making sure that the tanks were clean. Knowlton himself tested the tank in question for approximately ten minutes before entering it. Sandaker's testimony indicates that Knowlton tested only one of the three compartments into which the trailer tank was divided. Sandaker's testimony, uncorroborated by any other source, further indicated that the dial reading during this testing was in the 'danger' range.
Appellant contends that on the basis of the facts presented, she made a prima facie case of negligence on the part of the respondents. This negligence is based upon the failure of the respondents to adhere to the standard of care required of a supplier of a dangerous chattel, or on the basis of res ipsa loquitur. She further contends that Rice Truck Lines should be held liable because Sandaker was operating as at least its ostensible agent. She also contends that the deceased could not have been found to be guilty of contributory negligence or of having assumed the risk as a matter of law. We cannot agree with these contentions.
The issue that the trial court should not have granted the motion for involuntary dismissal is without merit. Rule 41(b), M.R.Civ.P., provides that: 'After the plaintiff has completed the presentation of evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.'
Appellant has correctly pointed out that in reviewing a ruling on a motion for dismissal this court must view the evidence Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 357 P.2d 4; Mellon v. Kelly, 99 Mont. 10, 20, 41 P.2d 49, 52.
' Nonsuit should never be granted unless it follows as a matter of law that recovery cannot be had upon any view of the evidence, including inferences to be drawn from it.' Welch v. Nepstad, 135 Nont. 65, 337 P.2d 14.
We hold that appellant has failed to establish a prima facie case of negligence on the part of the respondents Fruehauf and Sandaker, and it therefore follows that as a matter of law she cannot recover.
To sustain an action for personal injuries based on negligence, the appellant must establish not only that the respondents were negligent in that they breached a legal duty imposed upon them, but also that this negligence was the proximate cause of the injury suffered. See Jackson v. William Dingwall Co., 145 Mont. 127, 399 P.2d 236. In the present case, the appellant failed to establish either of these two elements, and the involuntary dismissal was proper.
As to the issue of whether the respondents were negligent, appellant suggests two grounds upon which the conduct of the respondents could be found to be negligent. Appellant first contends that Fruehauf and Sandaker breached the legal duty placed upon the suppliers of a dangerous chattel.
' One who supplies to another, directly or through a third person, a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied, or those whom he should expect to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied (a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied, or (b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.' 2 Restatement of Torts 2d, § 392.
As to respondent Fruehauf, there is clearly no negligence under this standard of care. Fruehauf was directed to steam the tank. This it did. Even if it was aware that the tank was to be welded upon, it is...
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