Meredith GMC, Inc. v. Garner, 2817

• Decision Date: 22 July 1958
• Docket Number: No. 2817,2817
• Citation: 328 P.2d 371,78 Wyo. 396
• Parties: MEREDITH GMC, Inc., a Wyoming Corporation, Plaintiff and Respondent, v. Gayle A. GARNER, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 371

328 P.2d 371

78 Wyo. 396

MEREDITH GMC, Inc., a Wyoming Corporation, Plaintiff and Respondent, v. Gayle A. GARNER, Defendant and Appellant.

No. 2817.

Supreme Court of Wyoming.

July 22, 1958.

Paul Allen Barber, Casper, for appellant.

Thomas J. Fagan and James W. Fagan, Casper, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiff, Meredith GMC, a dealer, contracted to sell a truck to one Wilson and left it with defendant, Gayle A. Garner, a serviceman, to be repaired and modified for oil field use to suit the purchaser. Wilson, who made the arrangements with Garner, was to do certain of the work himself and by an exchange of labor to bear a part of the cost of modification; Meredith was to pay Garner the remainder in cash. While the truck was in the process of modification in defendant's place of business, a fire occurred, causing damage to the vehicle for which plaintiff sought $1,799.67, alleging two causes of action: One based on the negligence of defendant, and the other upon the doctrine of res ipsa loquitur. The trial court granted plaintiff judgment for $1,506.80; and defendant has appealed, insisting that the judgment is not sustained by the evidence and is contrary to law.

There was no conflicting testimony regarding the happenings immediately before the fire. Two trucks were in the Garner shop on February 17, 1952, that of Meredith's and one belonging to Dawson. Before lunch on that day, Garner, Marsh (an employee), and Wilson carried an American Safety Gas Tank into the shop and set it on the catwalk of the Dawson truck. After lunch they picked up the gas tank to set it on a transmission jack; and Marsh, who had hold of one end of the tank, lost his hold; and the tank slipped to the cement floor. In the course of the fall, the cap on the filler spout of the tank came off, and gasoline splashed onto Marsh and the floor, resulting in an immediate explosion and fire. Garner, in explaining what happened, said:

'The fill cap on the tank was somewhat loosened. Now why, I can't say, but one hand hold around it and one on this fill cap was--the man on the north end--or George Marsh on the north end--and that cap slipped, which put the tank all down at him. As soon as it slipped out of his hand, of course, we had no control.'

He said he did not test the cap when it was picked up to see whether it was tight or not and said that the type of tank was a safe one if handled properly.

Counsel are in substantial agreement that the relationship of the parties was one of bailor-bailee and that the bailee in such a relationship is not an insurer but is liable only for his negligence. The briefs and arguments deal mainly with two issues: (1) Was there adduced before the court substantial evidence of defendant's negligence; and if so, (2) was there sufficient evidence of damage upon which to base the judgment against defendant.

The parties are in agreement that in cases such as the one at bar a defendant is required to use ordinary care; the burden of proof is upon the vehicle owner and does not shift; but the burden of going forward with the evidence does shift from plaintiff to defendant at various times. Both recite the text of Annotation, 16 A.L.R.2d 799, 805, § 5, and refer to the cases therein mentioned. Plaintiff insists that the principle stated in certain of these cases governs the present situation, entitling him to recovery under the doctrine of res ipsa loquitur, while defendant urges that the accident was inevitable since 'according to the custom of the trade, [he] was performing the job of mounting a gasoline tank in a careful workmanlike manner,' and no negligence was proved. It appears to us unnecessary to discuss the doctrine of res ipsa loquitur or the obligation of either party to go forward with the evidence. Regardless of who had the burden, the evidence was adduced showing without contradiction what happened immediately preceding the fire. It was the province of the trial court to determine whether or not defendant was exercising ordinary care. Defendant urges that there was no testimony of fault or neglect on his part, but this is not for him to say. The record discloses a number of facts which we think the trial court might properly have considered as bearing upon the question of ordinary care. These include testimony regarding similar installations by defendant and by other persons, the weight of the tank, its nature, the loosened cap which was used as a 'hand hold,' the failure to check it for looseness, and the place and method by which the steps of the transference of the tank was effected as compared with the usual methods employed. Whether or not a party acts negligently or carefully is a question determinable by the trier of fact if there is any evidence which would show or tend to show the relative care or negligence which was exercised, or if intelligent minds may draw different conclusions as to the matters at issue. See Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350, 53 A.L.R. 73; Galicich v. Oregon Short Line R. Co., 54 Wyo. 123, 87 P.2d 27; 38 Am.Jur. Negligence § 345. As we view it, there was substantial uncontradicted evidence which might properly be interpreted to show the lack of ordinary care by the defendant.

For proof of the amount of damages which plaintiff claimed to have suffered, he relied in part upon the difference in the amount he had paid for the truck $4,561.94 and the amount for which he sold it in a damaged condition,...