Sloboden v. Time Oil Co.

DRAPER, J. pro tem.* Plaintiff had judgment, following verdict of a jury, in this personal injury action. Defendant appeals, assigning as error the giving of an instruction upon res ipsa loquitur. This is the second appeal in this case, an order granting plaintiff’s motion for new trial having been previously affirmed. (Sloboden v. Time Oil Co., 131 Cal.App.2d 557 [281 P.2d 85].)

Defendant-appellant is a motor carrier of petroleum products. Welding repairs upon its tank trucks and trailers were performed from time to time by Richmond Tank Car Company, which employed respondent as a welder. Welding of the tanks carried by these vehicles could be safely performed only after the containers had been cleaned, so as to remove explosive gases and any residue of fuel.

Until 1949, appellant’s tanks were cleaned by Richmond before it did the welding jobs. In that year, appellant acquired a steamer and made an oral agreement with Richmond under which appellant was to clean its own tanks before sending them to Richmond for welding.

The testimony is in conflict as to the terms of this oral [199]agreement. There was testimony that appellant desired to do the cleaning itself to save money, and advised Richmond that appellant would steam clean each tank and prepare it for welding. Appellant, on the contrary, offered evidence that it had undertaken the steaming only to accommodate Richmond, and that the latter still was to insure that the tanks were prepared for welding. There was testimony that a proper test would require removal of the dome of the tank and inspection of the interior by a man entering the tank for that purpose. Only this method would reveal possible patches of rust and scale, behind which pockets of fuel, sufficient to cause explosion, could remain. Richmond contended that since the agreement was designed to reduce the amount of work to be paid for by appellant, this type of testing was not to be performed by Richmond. Appellant contends that Richmond, by the agreement, assumed full responsibility for complete testing, if required by good welding practice.

It is undisputed that Richmond did, before welding, test each tank of appellant with a “snifter.” This device is inserted into the tank, extending but a short distance from the opening thereof. Richmond contends that the “snifter” test is superficial, and was conducted only to assure that the tank delivered was not, through error, one which had not been subjected to any cleaning process at all.