
    The National Refining Co. v. Clancy.
    
      (Decided March 4, 1929.)
    
      Messrs. Tolies, Hogsett S Ginn, for plaintiff in error.
    
      Mr. Ralph Stickle, for defendant in error.
   Viokery, P. J.

This action comes into this court on a petition in error to the common pleas court of Cuyahoga county, the purpose being to reverse a judgment in favor of the defendaht in error, Thomas J. Clancy, against the plaintiff in error, in the sum of $305.49. The action grew out of the following circumstances:

It seems that the National Refining Company keeps a service station and a place where they drain the oil from the crank cases of automobiles and refill them for hire. On the day on which this occurrence took place, Clancy, in a Buick automobile, drove into the station of the National Refining Company and announced that he wanted the oil drained from his crank case and replaced with new oil, whereupon he was directed to drive his car upon a raised rack prepared for that purpose, which he did, and sat in the car while an employee of the plaintiff in error company was directed to drain the oil from the crank case and to refill it with fresh oil. In order to enable the employee to do this, the automobile to be drained is driven upon a track under which is a space, and the employee gets under the automobile and turns the plug which stops the vent of the crank case, takes out the plug, and then, while the oil in the crank case is being drained, he goes to another part of the station and gets a can of fresh oil, and when the old oil is drained out, he replaces the plug, which stops the vent, and then pours in the fresh oil. After that is done, payment is made, and the driver of the automobile backs off and drives away. It was in this manner that Clancy acted.

Clancy then drove immediately to Akron, and while in Akron took his lunch at the Portage Hotel, and then drove from Akron to Barberton, and from Barberton somewhere else, and had driven between 50 and 70 miles, perhaps about 60 miles, when on his way home, his crank case became dry, and he, not knowing it, continued to drive the car after the oil was exhausted, as a result of which the crank case was ruined and the motor injured, and it cost Clancy the amount of the judgment to have it replaced. The car was towed into Akron, and what became of it afterwards is immaterial.

Now after the plaintiff had introduced his testimony, the defendant made a motion to direct a verdiet on the ground that there was no evidence to show carelessness or negligence upon the part of the defendant company. This motion was overruled, and an exception taken, and after the defendant introduced its evidence the motion was renewed, again overruled, and the case submitted to the jury — and there is no complaint that it was not properly submitted so far as the charge was concerned — and the jury found in favor of the plaintiff.

The error upon which a right to have this case reversed is predicated is that the court erred in not directing a verdict for defendant after all the plaintiff’s testimony was in, and again erred in not directing a verdict after all the testimony was in, for the reason that there was no evidence to show negligence or carelessness on the part .of the defendant company, that nothing but an inference could be drawn, or, as is argued, an inference from an inference, and, under the ruling of the Supreme Court, unless there is more than that, the plaintiff is not entitled to recover.

Now, is that the situation in this record? Of course, it is not expected that a driver of a car should get out of his car and crawl under the rack in the service station and take a wrench to see whether the plug is properly screwed in. He must rely upon the service station, upon its employees, to see that the work is properly done. In this case there is evidence by the experts of the Buick Company to the effect that if this plug, which is hexagonal in shape, had been properly screwed in, and a wrench had been used, it would have been impossible for the plug to come out; that if it had been turned in with the hand only, and no wrench had been used, it might shake loose, and ultimately the oil would drip out, and finally the plug would come out.

It is perfectly manifest in this case that the plug was put in, but, according to the testimony of the experts, if it had been properly put in and a wrench had been properly used, it could under no circumstances have come out. So, then, the inference from this fact — not an inference from an inference — would be that the plug was not properly screwed in; that is, no wrench had been properly used on it.

Now, of course, after some refreshing of his recollection, the attendant who worked on this, car, who apparently had no knowledge of it at the time, testified that he remembered that he not only put the plug in, but that he used a wrench, and turned it in tight. This is the question of fact I did he, or did he not? If he did not turn it in with the wrench, and that was the cause of the plug coming out, that is, if he left the plug loose so that the vibration of the car on rough roads would shake it out, and cause the draining of the crank case, it would be an act of negligence, and, as he was acting within the scope of his employment for his company, it would be their act, for which there would be responsibility.

Now the two theories of this case were submitted to the jury, and the jury, having all the evidence before it, apparently did not believe this attendant when he said he used a wrench, for they had the evidence of at least two Buick experts that if the wrench had been used this plug could not have come out. The jury apparently did not believe the attendant when he said he used the wrench.

It seems to us that here was a jury question. It was fairly submitted to the jury under proper instructions, and the jury having found for the plaintiff below, we do not see how we can disturb the finding. We think thgt counsel for the plaintiff in error are wrong when they say this is only a case of an inference upon an inference. We think it is a case of an inference from the facts in this case. One thing is sure: Clancy drove his car on that rack and the defendant company undertook to refill his crank case: it did refill it, and for some reason the plug was put in so badly that during the course of a 60-mile drive it shook out of its place and the damage occurred as a result thereof. We think the jury was fairly warranted in coming to the conclusion that this plug was not properly replaced and that that was the cause of the injury.

There being nothing more involved in this case than the weight of the evidence, as we view it, the judgment of the court below will be affirmed.

Judgment affirmed.

Levine and Sullivan, JJ., concur.  