Transportation Equipment Co. v. Younger Bros.

• Decision Date: 15 March 1948
• Docket Number: 18684.
• Citation: 34 So.2d 347
• Court: Court of Appeal of Louisiana — District of US
• Parties: TRANSPORTATION EQUIPMENT CO. v. YOUNGER BROS., lnc.

34 So.2d 347

TRANSPORTATION EQUIPMENT CO. v. YOUNGER BROS., lnc.

No. 18684.

Court of Appeal of Louisiana, Orleans.

March 15, 1948

Titche & Titche, Bernard Titche, Jr., and Samuel I. Rosenberg all of New Orleans, for plaintiff and appellant.

Matthew A. Grace, of New Orleans, for defendant and appellee.

JANVIER Judge.

Transportation Equipment Company, plaintiff, a partnership composed of Charles R. Robertson and Richard E. St. Pe, is engaged in the business of repairing automotive equipment, especially large trailers and trucks. Younger Bros., Inc., defendant, is a corporation engaged in the business of transporting petroleum products by tank trucks. Plaintiff partnership brought this suit against Younger Bros., Inc., alleging an indebtedness of $1689.06 as the balance due for the altering of one large trailer and the complete rebuilding of another tank trailer which had been badly damaged previously in a fire. Plaintiff alleges that the amount to which it is entitled for altering the axle on one trailer and rebuilding the other was $3,472.08; that Younger Bros., Inc., has paid on account $1783.02, and that, therefore, there is a balance due amounting to $1689.06, for which judgment is sought.

Defendant corporation admits that the partnership was employed to do the work on the two pieces of equipment, but maintains that in doing the alteration work on one of them there was an overcharge of $544, and that after the other piece of equipment--the tank trailer--had been rebuilt by plaintiff, a leak was discovered, and that in welding the trailer in an effort to repair the leak, it exploded through the carelessness of the employees of plaintiff and was a total loss. Defendant charges that plaintiff is responsible for the value of this tank trailer, $3500, and that, therefore instead of being indebted to plaintiff, plaintiff is indebted to it in the sum of $2354.94 for which, as plaintiff in reconvention, it prays for judgment against the said partnership, Transportation Equipment Company. In other words, instead of admitting an indebtedness of $1689.06 defendant corporation claims that it owes a balance only of $1145.06 and that as a result of the destruction of its tank trailer, plaintiff owes it $3500, and that, therefore deducting from this $3500 the balance of $1145.06, there is due to it $2354.94.

In the District Court there was judgment in favor of plaintiff in reconvention for $1704.94, which is $650 less than the amount claimed by plaintiff in reconvention, the $650 representing the salvage value of certain parts of the destroyed tank trailer.

From this judgment plaintiff partnership has appealed.

Though the suit is based on what at first glance seems to be a rather complicated accounting between the defendant corporation and the plaintiff partnership, the entire controversy grows out of two transactions--the altering of an axle on one trailer and the attempt to repair the leak in another, and the only questions in dispute are, first, whether there was an overcharge of $544 for the altering of the axle of the one trailer, and second, whether the plaintiff partnership is liable for the value of the tank trailer which exploded while in its shop undergoing repairs.

When the defendant, as plaintiff in reconvention, claimed that the plaintiff partnership should be held liable for the value of the trailer which was destroyed as the result of the explosion, plaintiff partnership filed a plea of prescription of one year. We shall not discuss that plea of prescription at this time for the reason that it is necessary to a complete understanding of the ground on which it is based that there be set forth all of the facts which preceded the explosion. We have decided that the plea should not be sustained and, therefore, will first discuss the facts which resulted in the explosion and then set forth our reasons for the overruling of the plea of prescription.

We shall refer to the two jobs which the plaintiff partnership was employed to perform as the 'axle' job and the 'tank' job.

The tank job was undertaken first. The defendant owned a large tank trailer which had been damaged in a fire and which was taken to plaintiff to be completely rebuilt. The job was commenced during the middle of October, 1942. There is an irreconcilable dispute (which, under the conclusion we have reached, is unimportant) as to whether the work was completed on or about November 26, 1942, as plaintiff partnership maintains, or about December 20, 1942, as defendant corporation contends. At any rate, on the morning of December 24th, this trailer was sent back to the shop of plaintiff in order that a leak, which had been discovered, might be repaired.

The trailer had been used for the transporting of gasoline, and since, in repairing the leak, it was necessary to use a welding torch, it was important that proper precautions be taken to make certain that there remained in the tank neither gasoline nor explosive or combustible vapor. All parties agree that the proper method to be employed to make certain that such an operation is safe is to steam the tank, and the principal dispute arises over the question of whose duty it was to have this steaming done and whether the steaming was properly done, and whether, in spite of the steaming, the true cause of the explosion was carelessness on the part of employees of plaintiff partnership in not making certain that the operation could be undertaken.

Though there is a heated controversy over the time at which plaintiff was notified that the leak had been discovered and that defendant wished to have it repaired, we think that the record justifies the conclusion that on the morning of December 24th a representative of Younger Bros., Inc., defendant corporation, called plaintiff partnership and asked that the leak be fixed at once. We think, too, that during that or those conversations--for there may have been two of them--Younger Bros., Inc., were advised that the work could not be done on that day since it was Christmas Eve and all work in its shop would cease at noon. It appears, however, that since so small a welding job could have been done in a very short time, Younger Bros., Inc., were told that the only thing that would prevent the job being done on that morning was the absolute necessity that the tank be steamed before the welding could be attempted.

While there is a dispute over this question also, it seems to us that the record shows that the representative of Younger Bros., Inc., advised plaintiff that the steaming had been done. It may be that the fact is that the first conversation took place on the evening of the 23d and that it was at that time that Younger Bros., Inc., was advised that the work could be done on the next day if, in the meantime, the necessary steaming could be done.

It seems clear that if such a tank is steamed from eight to ten hours, there is no danger of such an explosion. That it was the intention of Younger Bros., Inc., that this trailer should be steamed for a sufficient time is shown by the fact that defendant knew that steaming costs about a dollar an hour and that the driver of the trailer, who was told to take it to the Cloverland Dairy Products Company for steaming, was given Ten Dollars in cash to be used in payment for that work. The steaming was done by the Cloverland Company, but the tank was steamed for only 1 1/2 hours, or probably for only 1 1/4 hours, as one of the witnesses says. The trailer reached the plant of plaintiff at about 10:30 o'clock or 11:00 o'clock on that morning, and the employees who were to do the welding were told by the driver that the steaming had been done. No tests were made by those employees, and a welding torch was applied to the outside of the tank and almost immediately the explosion occurred and the trailer was completely destroyed, except for the tires and certain parts, which were salvaged, and which had a value of $650.

The record shows that there are in existence and available now explosion meters which may be used to determine whether there remains in such a tank a sufficient accumulation of gasoline or gases to explode. But we think that the record also shows that at the time of this explosion such meters were not available, or at any rate, were not in general use.

Younger Bros., Inc., insists that the tank had been sent to the Cloverland Dairy Products Company for steaming at the suggestion of plaintiff and that, therefore, if the steaming was improperly done, plaintiff should be held responsible, regardless of whether additional tests should have been made by plaintiff or not.

We do not think that the record justifies the conclusion that the Cloverland Dairy Products Company was selected by the plaintiff. We are convinced that the record shows that when plaintiff partnership stated, whether on the evening of December 23d, or on the morning of December 24th, that the work could not be done unless the steaming could be first completed, it merely suggested the names of two concerns which could do such steaming and one of these was the Cloverland Dairy Products Company. That company had steamed out innumerable tanks of various kinds, and it is shown that it would have applied the steam to this trailer for as long a time as the owners might have requested. It is shown, too, that Younger Bros., Inc., probably in New Orleans and certainly at other places, on many occasions had had trucks steamed out and were thoroughly familiar with the process and with the necessity therefor. This is further made evident by the fact that the driver, as we have stated, was given Ten Dollars to pay for the steaming at the rate of One Dollar an hour.

One very important fact is that although the driver in charge of the truck left...