Truck Terminal, Inc. v. Nielsen, 2901

• Decision Date: 19 May 1959
• Docket Number: No. 2901,2901
• Parties: TRUCK TERMINAL, INC., d/b/a Husky Chief Terminal, Appellant (Defendant below), v. Paul NIELSEN, d/b/a Nielsen Trucking Company, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 413

339 P.2d 413

80 Wyo. 223

TRUCK TERMINAL, INC., d/b/a Husky Chief Terminal, Appellant (Defendant below), v. Paul NIELSEN, d/b/a Nielsen Trucking Company, Appellee (Plaintiff below).

No. 2901.

Supreme Court of Wyoming.

May 19, 1959.

Henderson and Godfrey, Cheyenne, for appellant.

Walter C. Urbigkit, Jr., Cheyenne, for appellee.

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

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action by plaintiff, Paul Nielsen, doing business as Nielsen Trucking Company, appellee herein, against the defendant, Truck Terminal, Inc., doing business as Husky Chief Terminal, appellant herein, for damages to a truck under circumstances hereafter mentioned. The case was tried to a jury which returned a verdict in favor of the plaintiff. Judgment was rendered upon the verdict and the defendant has appealed. The parties will be named herein as plaintiff and defendant as in the court below.

The complaint in this case alleges as follows:

I

For good and valuable consideration arising from past business and future prospect of business, defendant on March 5 and 6, 1957, undertook to store plaintiff's truck No. N70 by agreement with agents of plaintiff. Defendant failed to furnish proper storage and in fact removed the vehicle from heated storage during the night of March 5 to 6, 1957, and as a result the vehicle suffered damage from freezing resulting in the following direct and proximate damage to plaintiff:

                (a) Cost of new turbo            $1,001.64
                (b) Repairs in CHeyenne             226.81
                (c) Repairs in Salt Lake City        75.00
                (d) Driver breakdown time           160.00
                (e) Loss of use                     180.00
                (f) Telephone calls incident to
                    repair                           21.39
                                                 ---------
                                                 $1,644.84
                

II

On March 5, 1957, plaintiff's truck was delivered to defendant for storage in a heated garage. Defendant's agents were advised that the vehicle contained water and not antifreeze. Sometime during the night of March 5 to 6, 1957, the vehicle was removed from the heated building and parked outside without the knowledge or consent of plaintiff or plaintiff's agents. Neither was the water drained from said vehicle nor other action taken by defendant or defendant's agents to prevent freezing. The vehicle was placed in storage by plaintiff's agents to prevent freezing, and in reliance upon the heated storage furnished by defendant, plaintiff's agents had not drained the water from the vehicle or taken other action to prevent freezing. As a result of the negligence, carelessness and misconduct of defendant and defendant's agents, the vehicle froze, proximately resulting in damage to plaintiff in the amount heretofore itemized in I above. Wherefore plaintiff demands judgment against defendant in the amount of $1,664.84 and costs of this action.

Defendant answered, denying each and every allegation contained in plaintiff's complaint. It alleged affirmatively that it is not and was not in the business of storing vehicles of any description in the month of March 1957; that it is solely in the business of selling petroleum products and servicing vehicles and has no facilities for storage; that plaintiff's truck No. N70 was never delivered to defendant nor accepted by defendant for storage or bailment; that a contract for storage or bailment was never executed between plaintiff and defendant; that the defendant never acquired a possessory interest sufficient for bailment nor received any consideration sufficient for a contract or bailment. Defendant asserts the following affirmative defenses:

(a) Assumption of Risk--The plaintiff assumed the risk of any alleged damage that occurred.

(b) Contributory Negligence--The plaintiff was guilty of contributory negligence which contributed directly to any alleged damage.

(c) Estoppel--Plaintiff is estopped to recover because of its actions and representations upon which defendant relied.

(d) Fraud--Plaintiff's claim is based in fraud.

Defendant also filed a counterclaim but this was subsequently dismissed and need not be mentioned further. Counsel for defendant and appellant herein have made a statement of facts in their brief which we shall, with some additions, follow herein:

There is no dispute that plaintiff's diesel truck departed from Salt Lake City, Utah, on March 5, 1957, and proceeded across southern Wyoming on U. S. Highway 30. The drivers of the truck were George Bruhns, an employee of Nielsen Trucking Company, and Dean K. Christensen, an employee of Ringsby Truck Lines. The truck arrived in Cheyenne, Wyoming, sometime before midnight that evening after having proceeded through snow and cold weather all day. The truck was equipped with a sleeper cab so that one driver could sleep while the other driver operated the truck.

George Bruhns testified for the plaintiff that he arrived in Cheyenne about 9 or 10 p. m. on March 5, 1957. He stopped at the Husky Chief Terminal to purchase diesel fuel and have the truck serviced. The chains were repaired and the air breather was cleaned. He contacted the Wyoming Highway Department and learned that the roads were closed. He discussed storage with Willoughby, an employee of defendant, and asked to leave his truck in a covered station. Willoughby stated that he would store the truck since no other trucks would be coming in during the night. Bruhns offered to pay for the storage but Willoughby said that it wasn't necessary. Bruhns then left for his sister's house in Cheyenne but before leaving defendant's station he expressly called attention to the fact that the truck did not have any antifreeze but only water. He returned the next morning and found that the turbo of the truck and the compressor were frozen. Temporary repairs were made in Cheyenne and other repairs were made in Salt Lake City, Utah.

Dean K. Christensen testified for the plaintiff that he arrived in Cheyenne, Wyoming, about 10 p. m. The diesel truck was placed in the grease pit at Husky Chief Terminal. The roads were closed out of Cheyenne. Willoughby agreed to store the truck. The truck turbo was frozen when he returned the next day. The supercharger was the damaged part and it was disconnected for the return trip to Salt Lake City. A load was taken back to Salt Lake City by the damaged truck. He was paid breakdown time while in Cheyenne.

Myron Holley testified for the plaintiff that he is a mechanic in Cheyenne, Wyoming. He performed temporary repairs on the plaintiff's truck in the sum of $226.81.

Paul W. Nielsen testified that he is the owner of the plaintiff company. The truck in question was hauling a load of sugar to Chicago, Illinois. He was unable to obtain a turbo-charger for the truck for two days. He wanted to fly a turbo to Cheyenne but was unable to find one until two days later. He talked with Gus Fleischli over the phone on March 6, 1957, and Fleischli told him that everything would be taken care of.

Robert Willoughby testified for the defendant. He is presently a member of the Wyoming Highway Patrol. He was employed by Husky Chief Terminal on March 5, 1957. Plaintiff's truck pulled into the station about 9:30 p. m. The truck was placed in the grease pit to repair the tire chains. The driver of the truck said they were going downtown for a while. He refused to store the truck because other trucks would be coming in and out all night and he could not tie up a grease pit for storage. Grease pits are not designed for storage. There was no conversation about antifreeze in the truck radiator. The drivers did not tell him there was water in the truck. They had never stored trucks before and there were no facilities to store trucks at the station. Drivers sometimes store trucks at Land Air during storms. The snow during that night was light and trucks were passing through all night.

Kenneth Farrens testified for the defendant that he was assistant manager of Husky Chief Terminal on March 5, 1957. He was present when the plaintiff's drivers were talking to Willoughby. The drivers stated they were going to town for a while. There was no conversation about storing the truck in his presence and nothing was said about water in the radiator. Defendant never stored trucks because there were no facilities.

Gus Fleischli testified that he is the manager of Husky Chief Terminal. He tried to help the plaintiff obtain repairs for the truck. Plaintiff was a fair customer. There were no facilities for storing trucks at Husky Chief Terminal. The average truck remains on the grease pit about 30 minutes to an hour as there are often about 26 grease jobs a day.

A few additional facts will be mentioned hereafter

1. Counsel for defendant contend that the court submitted the case to the jury upon a wrong theory. They mean that the court assumed that there was in fact a bailment when that fact was actually in dispute. The court instructed the jury by Instruction No. 5 as follows:

'The Court instructs you that a 'bailment' may be defined as a delivery of personalty for some particular purpose, or on mere deposit, under a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.'

There is no particular fault to find with that instruction. The defendant offered an instruction to the following effect:

'You are instructed that a bailment may not be forced upon a party and it is based upon contractual principles. In other words, there must be an offer by one party, for a sufficient consideration, to do a particular thing, and there must be an acceptance by the other party. Before there can be a contract between two parties, the minds of the two parties must come together upon all the terms and conditions of the contract, or, as it is sometimes said, the...