Shell Oil Co. v. Henry

• Decision Date: 04 December 1933
• Docket Number: 24698.
• Citation: Shell Oil Co. v. Henry, 175 Wash. 298, 27 P.2d 582 (Wash. 1933)
• Parties: SHELL OIL CO. v. HENRY et al.
• Court: Washington Supreme Court

27 P.2d 582

175 Wash. 298

SHELL OIL CO. v. HENRY et al.

No. 24698.

Supreme Court of Washington

December 4, 1933

Department 2.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by the Shell Oil Company against John W. Henry and Vernon Henry, individually and doing business as a partnership under the trade-name of J. W. Henry & Son, and the Four Way Filling Station, wherein defendants filed a cross-complaint. From a judgment for defendants on the cross-complaint, plaintiff appeals.

Reversed with directions.

Hyland Elvidge & Alvord, of Seattle, for appellant.

Grady &amp Velikanje and Stanley P. Velikanje, all of Yakima, for respondents.

TOLMAN Justice.

This case was once Before in this court. Shell Oil Co. v Henry, 169 Wash. 438, 14 P.2d 32, 33.

The former appeal was prosecuted by the plaintiff (appellant here) from an order granting a new trial on motion of the defendants. The judgment was there affirmed, and this court said:

'We have examined the evidence in the case, and find that it is conflicting in important respects, and, upon considering the whole of it, we find nothing to indicate abuse of discretion on the part of the trial court in granting the new trial. Field v. North Coast Transportation Co., 168 Wash. 515, 12 P.2d 749.

'Nor was there any error in denying appellant's motions to take the counterclaims from the consideration of the jury, or the issue of payments upon accounts stated. It appears from the record that there was a conflict in the evidence in these respects sufficient to take the case to the jury.'

After the going down of the remittitur, a new trial was had to a jury, which found for the defendants upon one cause of action set up by cross-complaint and in favor of the plaintiff on the remaining two causes of action. On motion, the trial court granted judgment, n. o. v., on the two causes of action and entered judgment in favor of the defendants upon all three of the causes of action set up in their cross-complaint. Plaintiff has appealed from that judgment.

After the former decision, this court again considered similar questions in Jewell v. Shell Oil Co., 172 Wash. 603, 21 P.2d 243; Robinson v. Shell Oil Co., 172 Wash. 611, 21 P.2d 246, 249; and Searl v. Shell Oil Co., 172 Wash. 621, 21 P.2d 249.

The Robinson Case is identical in its controlling facts with the case at bar. With the exception of names, places, dates, and amounts, the facts of the Robinson Case might very well stand as a statement of facts in this case.

The same questions were presented in Shell Oil Co. v. Wright, 167 Wash. 197, 9 P.2d 106, though, perhaps, they were there a little less clearly defined; but the Robinson Case is based upon and follows the ruling of the Wright Case.

We are convinced that if, as respondent here contends, our former decision in this case that the facts in evidence were sufficient to take the case to the jury is the law of the case, then that law has been overruled by the Robinson Case.

In the concluding part...