Robinson v. Williamsen Idaho Equipment Co.

Decision Date16 May 1972
Docket NumberNo. 10903,10903
Citation94 Idaho 819,498 P.2d 1292
PartiesThomas D. ROBINSON and Robert M. Robinson, a co-partnership doing dusiness under the trade name and style of Robinson Roofing Company, Plaintiffs-Appellants, v. WILLIAMSEN IDAHO EQUIPMENT COMPANY, Inc., a corporation, Defendant-Respondent.
CourtIdaho Supreme Court

Whittier & McDougall, Pocatello, for plaintiffs-appellants.

Gee & Hargraves, Pocatello, for defendant-respondent.

McQUADE, Chief Justice.

This action in tort and warranty arises from complex facts which require comprehensive treatment. At times relevant to the case plaintiffs-appellants were partners in a roofing enterprise. On July 22, 1965, they purchased for use in their business a truck specially equipped with a Marion hydraulic scissors hoist. The purpose of the hoist was to lift roofing materials on the truck bed as high as 14 feet and to provide convenient access for workmen to roofs. Acting on appellants' behalf, the dealership selling the truck ordered the hoist through respondent, Williamsen Idaho Equipment Co., the area distributor of Marion products. The hoist was installed on the truck at the Marion factory in Ohio, and the combined unit was delivered directly to the truck dealership. Appellants initially took possession in August, 1965, but returned the unit briefly to the dealership for realignment of the truck bed. In turn, the dealership sent the unit to respondent's shop, where the realignment was completed on or about September 1.

Three weeks later, as the hoist was being used to lift gravel to a roof, the truck tipped over on its side. Appellants, who had never before owned a truck with a hydraulic hoist, were 'baffled' by the accident. They consulted with respondent's representative, who was of the opinion that the accident was caused by uneven distribution of the load in the truck bed and appellants' inexperience in operating a hoist. The representative later testified at trial that he instructed appellants to distribute the loads more evenly in the future. Appellants did not recall being so instructed on that occasion, but they testified that they were aware of the need of maintain even loads and always exercised due caution in this respect. In the meantime respondent repaired the hoist and charged appellants' insurer approximately $1,000 for the work. Upon completion, respondent's representative apparently expressed to appellants his belief that the unit 'would do a good job.'

On October 22, 1965, after return of the unit, the truck tipped on its side a second time when the hoist was extended and sacks of gravel were being transferred to a roof by an employee. Appellants again brought the unit to respondent, demanding that it be made 'good as new.' Respondent installed new scissor bars, checked and switched the dual hydraulic cylinders, and reinforced the truck's frame and springs. On June 22, 1966, the unit was returned to appellants apparently with the claim that their 'troubles were over,' and with a further instruction to distribute the loads evenly. Respondent charged nearly $1,800 for this additional work.

The day after the truck left respondent's shop, it tipped over a third time while lifting gravel. Rather than return the unit to respondent again, appellants permitted it to be repossessed without further repairs to the hoist. They brought this action against respondent for general and special damages on theories of negligence and breach of implied or express warranty. 1

At trial, several explanations for the accidents were suggested, but respondent relied primarily on uneven distribution of the load. It was also suggested that the truck may have been overloaded, causing the truck frame to sag or the rear springs to give way; but the third accident occurred the day after the frame and springs were reinforced and the unit tested by respondent with a similar load. Moreover, respondent's representative testified that the hoist had a high pressure relief valve which would have prevented it from lifting if overloaded. It was further suggested by deposition that in one instance the gravel, while spread evenly from side to side, was disproportionately loaded to the front of the bed, possibly causing one of the scissor supprots to weaken. But appellants testified without contradiction that the load was even in all respects the third time. Finally, a deposition suggested that the sides of the bed bowed under pressure of a maximum load, possibly shifting the truck's center of gravity. However, this caused no difficulty in respondent's final tests, and respondent's representative did not assert it as a causative factor in his testimony.

Appellants adduced undisputed testimony of a hydraulics expert who noted that the hoist had two hydraulic cylinders, but lacked a control device to prevent one cylinder from losing fluid relative to the other in the event of an uneven load. If the load were not balanced the cylinder losing fluid would depress, tilting the bed of the truck, shifting the center of gravity and causing the truck to tip over. That opinion was supproted by a series of photographs in evidence, taken after the second and third accidents, showing the slanted truck bed and unequal extension of the cylinders. It also drew support from the testimony of a disinterested bystander who distinctly observed one cylinder sink while the other remained stationary, causing the elevated bed to tilt, when the truck tipped over for the last time. Taken in its entirety, the substantiated testimony at trial established that the accidents resulted from the interplay of uneven loading and the loss of hydraulic fluid in one cylinder causing it to depress.

The parties stipulated that there existed flow control devices for hydraulic hoists in 1965 and 1966, but respondent's representative, whose exposure to Marion hoists dated to 1959, testified that he was unaware of them during those years. However, he also indicated at several points in his testimony that he knew the cylinders on the Marion hoist could extend at different rates, or that one could sink relative to the other. Stated simply, he revealed that he knew the effect if not the cause of the problem. He further testified that, although he did not communicate directly with appellants when dealing through the truck dealership, nevertheless, he knew they were the true buyers and was actually informed of the manner in which they intended to use the hoise.

Appellants' expert concluded without contradiction that a Marion hoist of the type sold, would be unsafe to operate when used for the kind of work contemplated by appellants. He further stated without refutation that the design characteristic which rendered it unsafe would not be common knowledge, or even known by most owners of such equipment. On this point, respondent's representative conceded that to his knowledge appellants had received no special warnings, or even qualifying instructions, on use of the hoist at the time of purchase.

When appellants concluded their case-in-chief the trial court, sitting without a jury, took under advisement respondent's motion for involuntary non-suit. At this juncture the court disclosed, without explanation, that he was limiting the issue of respondent's liability to questions of seller's misrepresentation and negligence in subsequent repairs. He then expressed the opinions that respondent had made no misrepresentations as seller, and that the case thus turned solely on the question of negligent repairs. In his subsequent memorandum opinion, and findings of fact and conclusions of law, the court held respondent not liable for any negligence in repairs to the hoist. Particularly, the ocurt found that respondent was not negligent in failing to install a flow control device of which it was unaware, and that, in any event, absence of a flow divider was not the proximate cause of the accidents. The court also specifically rejected, without further discussion, both liability in warranty and the strict liability in tort which appellants argued in a post-trial brief. 2 Judgment was entered for respondent and this appeal followed, with appellants assigning error to the rulings on each issue of negligence, warranty and strict liability in tort.

Because the legal issues share certain common elements, they are not as complex as the facts which frame them. As applied to this case, the theories of liability on implied warranty and strict liability in tort are co-extensive. Under either theory a seller may be liable for damage caused by unfitness of the product for its intended purpose. 3 Strict liability in tort has emerged as an independent theory of recovery in such a case primarily as a vehicle for imposing liability on the seller if he interporses defenses to liability on implied warranty. 4 Respondent has raised such a defense by asserting a lack of privity between itself and the appellants. However, the facts in the record do not appear to support the contention. The truck dealership's representative testified without contradiction that the dealership acted solely as appellants' agent in ordering the hoist from respondent. He stated that the dealership was 'not in the business of selling hoists.' Rather, the dealership ordered the hoist on appellants' behalf, as part of the truck sale transaction, after the appellants had decided from products literature in their possession that the Marion hoist appeared best suited to their roofing business. As noted earlier, respondent's representative testified that he knew the appellants were the actual buyers for whom the order was placed. These facts do not permit us to interpret the truck dealership's role in the purchase of the hoist as anything other than that of an agent contracting on behalf of the appellants. The facts bring the case within the rule enunciated by courts recognizing the privity doctrine, that the requirement of privity between the seller and the injured plainti...

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