System Tank Lines v. Dixon

• Citation: 47 Wn.2d 147,286 P.2d 704
• Decision Date: 11 August 1955
• Docket Number: No. 33051,33051
• Parties: SYSTEM TANK LINES, Inc., Appellant, v. Clarence G. DIXON and Harold W. Ellefson, a partnership, d/b/a Commercial Truck and Automotive Repair Service, Respondents.
• Court: United States State Supreme Court of Washington

Page 147

47 Wn.2d 147

286 P.2d 704

SYSTEM TANK LINES, Inc., Appellant, v. Clarence G. DIXON and Harold W. Ellefson, a partnership, d/b/a Commercial Truck and Automotive Repair

Service, Respondents.

No. 33051.

Supreme Court of Washington, Department 2.

Aug. 11, 1955.

Joseph E. Hurley, Spokane, for appellant.

Del Cary Smith, Del Cary Smith, Jr., Spokane, for respondents.

FINLEY, Justice.

This is an action to recover for property damage and personal injury. It is a companion case to Fink v. Dixon, Wash., 285 P.2d 557. Both cases arose out of an explosion of the trailer portion of a tank-truck rig used for the transportation of gasoline.

The plaintiff corporation (hereinafter called System) operated a fleet of tank trucks. Normally, these were maintained and repaired in a shop in Spokane. It was operated exclusively for the servicing of System equipment by a subsidiary, the System Parts & Equipment Co., under the supervision of a Mr. Charles Duncan. In July of 1953, as a result of a labor dispute involving several trucking firms in the area and the Machinists Union, several repair shops of trucking firms in Spokane other than System were on strike. System laid off its employees on July 17, 1953, and closed its automotive repair shop for the duration of the strike. At this time, the defendant partners were operating a small, independent automotive repair shop in Spokane under the trade name of Commercial Truck and Automotive Repair Service. To keep its own rolling stock in repair, System entered into an agreement with the defendant partners whereby System's tank trucks and trailers were to be repaired in defendants' shop. The shop was to be paid the fixed sum of $3.50 per man hour for any work done on System equipment. Out of this, the defendants would pay (ostensibly, at a lesser rate per hour) the wages of all mechanics who worked upon System equipment in defendants' shop. All automotive or other parts used in the repair of System equipment were to be supplied by System.

Under the above-described arrangement, one of System's tankers was repaired at the defendants' shop on July 22. The repair work thereon was done by Mr. Holinka (System's day foreman) and two other mechanics, formerly employees of System, but laid off at the time because of the strike, as mentioned above. The defendant partners did not work on the rig, did not exercise any supervision of work performed thereon, and did not even know the nature of the repairs that were made.

A second tank truck and trailer was sent over to defendants' shop on July 24. With it was a work sheet from System, and again the initial work was done by Mr. Holinka and three mechanics who previously had been laid off from their regular employment with System. Part of the repair work on the second tank truck and trailer involved a small welding job on the trailer. Mr. Holinka was not familiar with the defendants' welding equipment, and requested defendant Dixon to do the welding. The trailer, which had been used to transport gasoline, had been steam cleaned for three and one-half hours by System prior to its delivery to defendants' shop. This fact was known to Mr. Holinka. Mr. Dixon, an experienced welder, testified that he was aware of the danger in welding a gasoline tanker; furthermore, he stated that three and one-half hours of steam cleaning was inadequate preparation to render a gasoline tanker safe for welding, but that he did not know the tanker had been steamed cleaned for only three and one-half hours. In addition to the foregoing, there was evidence that the defendants did not give any instruction as to the work to be done for System on the particular tank truck and trailer; that the workmen involved brought their own tools, were summoned to work by Mr. Holinka, System's day foreman, and had their tasks assigned to them by him; furthermore, that the work cards used for the workmen and the tax withholding statements filled out by them were supplied by System and bore its firm name.

System brought this action to recover damages to the tanker and trailer. The defendants denied liability, and counterclaimed for damages to their property. Defendant Dixon further counterclaimed for his personal injuries. At the close of their opponent's case, both sides challenged the sufficiency of the other's evidence and moved for nonsuit. The motions were denied. The case was submitted to a jury and resulted in a verdict for the defendants on both causes of action. After System's motion for a new trial was denied, this appeal was instituted.

Appellant System's first assignment of error is directed to the denial by the trial court of its motion for nonsuit. This assignment of error will not be considered for the reason that System did not stand on its motion for nonsuit, but introduced evidence in rebuttal, and proceeded with the trial. Gardner v. Porter, 45 Wash. 158, 88 P. 121; Conner v. Seattle, Renton & Southern Railway Co., 56 Wash. 310, 105 P. 634, 25 L.R.A.,N.S., 930.

In a second assignment of error appellant System urges that it was error for the trial court to deny its motion for a new trial because the evidence was insufficient to support the verdict of the jury. Under the circumstances, the evidence must be interpreted most strongly against the moving party, and the ruling of ...