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Indexed as:

Weber v. Moro Machine Co.

Between
Cecil Weber, plaintiff, and
Moro Machine Co. Ltd., defendant
[1976] A.J. No. 322
Alberta District Court
Judicial District of Peace River
Miller D.C.J.
February 24, 1976.
(18 paras.)
Counsel:
D.C. Norheim, for the plaintiff.
H.C. Sisson, for the defendant.

REASONS FOR JUDGMENT

1 MILLER D.C.J.:-- The plaintiff, Cecil Weber, a resident of High Level in the Province of
Alberta, sometime prior to May of 1965 became the owner of a boat described as a "jet boat" which
was powered by an Oldsmobile 455 cubic inch motor. Apparently in 1974 when the boat was last
operated by the plaintiff he noticed the motor was overheating. Also, apparently sometime during
the winter season of 1974 - 1975 the plaintiff thought that some water that had been left in the
motor had frozen and may have caused some damage to parts of the motor. Accordingly, he
determined to seek the services of the defendant company who were engaged in auto repair in the
town of Peace River in the Province of Alberta, to put the engine back into proper running
condition.
2 The evidence disclosed that the plaintiff dismantled the motor initially and shipped the "heads"
to the defendant for their inspection and repair. The defendant, through one of its employees,
advised the plaintiff that it required the entire engine in order to do the job properly and sometime in
the early part of May, 1975, the plaintiff delivered the rest of the engine to the defendant's premises

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in Peace River. At that time he asked the defendant for an estimate of the cost of putting the engine
into proper working condition and after the defendant had some time to inspect the engine the
plaintiff was advised that the repairs would cost in the neighborhood of $300 to $400. At that point
the plaintiff signed a work order which describes the work to be done as follows:
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"Check engine for crack. Valve job. Replace seat. Repair block. Surface heads.
Reassemble. Polish crank."

3 The defendant, through its general manager Otto Moro, its shop foreman Oetzel, and a
mechanic employed by it one William Ives, then proceeded to embark upon the work. As they
progressed some additional work was found to be required and the plaintiff was contacted by
telephone and authorized the additional work. On or about the 12th of June, 1975, the defendant
advised the plaintiff that the work had been completed and the plaintiff arranged to have the motor
picked up at Peace River and delivered approximately 200 miles to his residence at High Level. The
plaintiff then enlisted the assistance of Ken Armstrong, a licensed mechanic employed by the
Department of Highways who was also a personal friend, to assist him in reinstalling the engine in
the boat and "running-in" the engine to make certain that it was working properly. The plaintiff took
the boat out to the lake and while it was tied up to the wharf he filled the crankcase with four quarts
of oil and assisted by Armstrong started up the motor to make certain that the overheating problem
which was observed the previous summer had been corrected and that the motor was running
properly. Evidence was given that the engine started easily and idled properly but that the plaintiff
and Armstrong observed that the oil pressure gauge which was installed in the boat and hooked up
to the motor only showed a reading of 20 pounds when it was supposed to go to 45 pounds. The
plaintiff estimated that he ran the engine for approximately ten minutes, although he kept no
specific record of the time, hoping that the oil pressure reading would climb to the proper level in
short order. When it did not climb Armstrong suggested that the problem might be in the oil
pressure gauge and it was decided to shut down the engine and obtain a special oil gauge from
Armstrong's shop to check on the engine pressure. This gauge was obtained, attached to the engine
and the engine started up again. The independent gauge registered the same pressure, namely, 20
pounds, and after waiting up to perhaps another ten minutes the plaintiff and Armstrong decided to
turn off the engine and bring the entire boat and motor back to the defendant's shop in Peace River.
4 When the plaintiff picked up the engine on the first occasion he was presented with a bill for
$572.74 for labor and materials and that bill was promptly paid. On the second occasion the plaintiff
himself delivered the boat on a trailer to the defendant's premises and told the foreman that they
were having oil pressure problems. The plaintiff left the boat with the defendant to be examined and
returned a few days later at which time the motor had been disassembled. The plaintiff spoke to the
mechanic Ives and was shown evidence that the engine had operated without proper lubrication so
that there was bare metal rubbing against bare metal and this caused scoring of the bearings. The
bearings in question had been installed new by the defendant during the initial work which was
done. The experts for both the plaintiff and the defendant agreed that the scored bearings would
mean that there would not be a tight fit in the cylinders and this would cause the oil pressure to
drop. At this particular point the evidence is somewhat unclear but the plaintiff admitted he told the
defendant's representative to repair the motor and get it into proper running condition as it had
"been sitting around too long already". The plaintiff stated that he presumed the cost of doing the
second repair job would be borne by the defendant but he admits he never got any verbal or written
indication to this effect from anyone representing the defendant. In any event the engine was

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repaired and on this occasion the damage to the engine was more extensive than it had been on the
first job and a bill of $936.53 for parts and labor was drawn up by the defendant. The defendant
advised the plaintiff near the end of June of 1975 that the work had been completed for the second
time and that it would cost him $936.53 before he would be permitted to take the boat out of the
defendant's premises. After some discussion and dispute the plaintiff paid the sum of $936.53 by
certified cheque which had endorsed thereon the words "paid under protest". It is admitted by all
parties that the boat performed satisfactorily after the second repair job had been completed.
5 The plaintiff now sues the defendant for special damages of $936.53 being the amount which
he paid under protest on the second occasion plus a claim for $500 for punitive damages and costs.
The defendant denies that it is liable on the basis that it was not negligent in any way in connection
with the work it did during the first repair and that the damage to the motor which gave rise to the
second repair was caused by the negligence of the plaintiff.
6 It was apparent at the trial that it was going to be necessary to rely on the opinions of the
various experts produced by both sides to attempt to arrive at an explanation of what happened to
the motor to cause the extensive damage which necessitated the second motor repair job. The
plaintiff called the mechanic Armstrong and he gave evidence that he did the final hook up to
reinstall the motor into the boat after it had returned from the plaintiff's shop on the first occasion.
Before starting the engine he says he checked the crankcase and satisfied himself that it had a
sufficient supply of oil in it. He says that shortly after the motor was started he noticed that the oil
pressure gauge indicated that the oil pressure was below normal operating limits. He confirmed the
evidence regarding the separate gauge and stated that he was watching the gauges on both occasions
when the motor was started to see if the pressure would build up to proper levels. He doubted that
the engine was run on either occasion for as long as ten minutes but never kept exact time. He stated
that he had started up many rebuilt motors during his experience as a mechanic and all he had ever
done was to fill up the crankcase with the required amount of oil as was done in this case. He said
he had never used a pressure oil feeder to pre-lubricate the rebuilt motor either before or during its
initial start-up after rebuilding. Arnstrong stated that standard procedure is for the mechanic doing
the rebuilding job to oil and grease the critical moving parts while he is reassembling the motor and
that this pre-lubrication serves to protect the engine during the short interval that it takes the oil
pump to pump the oil from the crankcase through the oil filter and through the lines connected to
the engine. He examined the damaged bearings which had been removed from the engine after the
first repair, which were marked as exhibits in the trial, and stated that it was hard to say what caused
the damage to them. He offered two possibilities, namely, that the mechanic forgot to pre-lube the
critical parts when he reassembled them or that the bearings that were installed were the wrong size.
He agreed that the bearings could have been damaged in a very short period of time if there was no
proper lubrication present while the motor was running. On cross-examination, he said that he had
never used a pressure oil feeder nor had he heard of adding extra oil to the crankcase to "run-in" a
rebuilt motor. He also said that he had never heard of an air lock in the oil system of an internal
combustion engine. In rebuttal, Mr. Armstrong also stated that at no time was the engine racing
during the short time it was running in his presence at the lake.
7 The other expert called by the plaintiff was Mr. G. Mazurek who is a licensed mechanic with
fifteen years experience and who operated a service station. He said that his standard procedure to
start up a rebuilt motor is to put the proper amount of oil into the crankcase and start the motor in
the usual fashion. He has never heard of using a pressure oil feeder and did not think adding extra
oil to the crankcase would be a good idea as it might rupture some of the seals. He agreed with

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Armstrong's theory that the damage could only have been caused by the failure to pre-lube the
engine or by using the wrong size of bearings.
8 The defendant presented three expert witnesses. The first was Mr. Oscar Moro who is president
of the defendant company and is a licensed mechanic with 45 years of experience. He did not
personally work on the plaintiff's engine on either occasion but was aware that the job was being
done in the shop. He stated that on the first bill it is evident that the defendant did not do any work
on the carburetor except maybe to reinstall it on the engine. He said he was present when the boat
and motor were returned to the shop and that he decided to test it under running conditions before
dismantling it. A water barrel was rigged to provide water cooling and the motor was started in the
shop. He says it immediately ran at high speed and when they later examined the carburetor he
found the idling jets were plugged causing the motor to race and operate at very high r.p.ms. As
soon as this was apparent the engine was turned off and dismantled. The bearings were badly
damaged and the crankshaft showed evidence of heat damage. He says he checked the size of the
bearings that were installed on the first occasion and they were the correct size as specified by the
service manuals. Moro stated that it was standard procedure to pre-lube critical parts when
reassembling a rebuilt motor. He suggested that there were a couple of possibilities which could
explain the damage suffered by the engine after the first repair job. He agreed that in most cases the
oil in the crankcase gets to the cylinders quickly enough to protect against damage but says that in
his experience, on rare occasions, an air lock develops in the oil line and prevents the oil from the
crankcase getting to the cylinder in time to replace the pre-lubrication that is put in when the engine
is reassembled. He says this can occur without fault on anyone's part and in order to guard against
such a rare happening, if he is instructed to "run-in" the motor in his shop, he also uses a pressure
feed system. He stated in this case he was not instructed to "run-in" the engine after the first repair.
Alternatively, he stated that if the motor raced when the plaintiff started it up at the lake, in the same
fashion as it had in the shop, the damage could have occurred before the crankcase oil could be
pumped into the cylinders. He also stated that the damage could occur in a very short space of time
and although he says he would not have run the engine with low oil pressure for up to 20 minutes he
also felt the damage was probably done in the first minute or so.
9 Mr. Bill Qetzel had been the defendant's shop foreman for ten years at the time of this incident
but has 46 years of experience as a licensed mechanic. He did some of the grinding work on the
engine during the first repair job and supervised the work done by Ives in reassembling the motor.
He confirmed that it is fundamental basic practice for all mechanics and particularly in the
defendant's shop to pre-lube the critical parts when reassembling any rebuilt motor. Without
specifically remembering looking at the work he is convinced that Ives probably pre-lubed the
engine during the first repair job. He confirmed that he had seen cases where an air lock developed
in an oil pressure system although he conceded that the standard method of putting oil in a
crankshaft was usually adequate. He also mentioned that the defendant had been using a pressure
feed system to ensure lubrication during the "run-in" of rebuilt motors for approximately ten years.
10 The third witness called was William Ives who is a licensed mechanic with 20 years of
experience, 14 of which had been spent with the defendant. He says he worked on rebuilding
aircraft engines before coming to work for the defendant. He described the work he did in
reassembling the engine during the first repair job and how he carefully checked the various parts to
make certain they were within the required specifications. He is totally satisfied that the bearings
installed were the correct size. He says that he has reassembled hundreds of motors and always has
a can of pre-lubrication oil right by his side as he is aware of the fact that pre-lubrication is

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absolutely vital. He admits he does not specifically remember applying the pre-lubrication to the
various parts on this engine during the first repair but is certain he did as it is his invariable practice
and he does it automatically. He confirmed that when the job was brought back for the second repair
the engine raced when it was first started up. When he disassembled the engine the second time he
told the plaintiff he thought it must have been started up without oil in the crankcase because of the
damage he observed. The damage to the motor the second time was far more extensive than on the
first occasion. He specifically remembers checking the oil pump on the first occasion and finding it
satisfactory but decided to put a new oil pump on the motor the second time. I am bound to say that
Mr. Ives was a very impressive witness and impressed me as a methodical and precise mechanic.
11 In argument, counsel for the Plaintiff argued that the principle of res ipsa loquitur should apply
to the facts of this case. He alleged that the defendant accepted the responsibility on the first
occasion of putting the motor into proper working condition and that the plaintiff accepted all of the
suggestions put forward by the defendant to achieve this end. He alleged that the defendant never
gave the plaintiff any special instruction for "running-in" the engine and that the plaintiff, assisted
by Armstrong, followed standard procedure and shut off the engine as soon as they were certain that
it was operating improperly. In addition, the plaintiff, through his experts, offered the probable
theory of negligence on the part of the employees of the defendant. Counsel for the defendant
argued that there was no direct evidence of any negligence on the part of the defendant or its
employees and that the principle of res ipsa loquitur did not apply to this set of facts. He said that
the defendant assumed no responsibility nor was it asked to assume any responsibility for the
"running-in" of the engine on the first occasion and that it had offered, through its experts, plausible
explanations of what might have caused the damage for reasons other than negligence on the part of
the defendant.
12 It remains for me to make some findings of fact and then to apply the law as I understand it to
be given circumstances such as the ones in the case at bar. I find that the engine did not race when it
was being tested by the plaintiff and Armstrong at the lake on the first occasion. I also find that the
plaintiff and Armstrong used the standard procedure for starting up the rebuilt motor and that they
were not made aware of the desirability of using a pressure feed system. I also find that the
mechanic Ives followed his standard procedure and applied the necessary pre-lubrication when
reassembling the motor on the first occasion. The question then arises as to whether the regular
burden of proof which is normally placed on the plaintiff to prove his allegations by a
preponderance of evidence applies or whether the principle of res ipsa loquitur applies?
13 One of the leading cases in Canada dealing with the judicial treatment of res ipsa loquitur is
United Motors Service Inc. v. Hutson et al., [1937] S.C.R. 294, where Chief Justice Duff at p. 296
states:
2

"I am satisfied that the circumstances established in evidence afford reasonable

evidence of negligence in the sense that, in the absence of explanation, the proper
inference is that the damage caused was the result of the negligence of the
appellants; and that the explanations advanced are not of sufficient weight either
to overturn or to neutralize the force of the inference arising from the facts
proved."

14 And at p. 297 Duff, C.J., quotes from the case of Scott v. London and St. Katherine Docks Co.,
[1865] 3 H. & C. 596 at 601:

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"'There must be reasonable evidence of negligence. But where the thing is shown
to be under the management of the defendant or his servants, and the accident is
such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from want of care.'

Broadly speaking, in such cases, where the defendant produces an explanation

equally consistent with negligence and with no negligence, the burden of
establishing negligence still remains with the plaintiff."

15 Another case which must be considered and which is similar to the case at bar is ScottD'Amboise Const. Co. v. Reo Motors, [1958] O.R. 711. This was a case where the plaintiff had an
engine in a heavy truck repaired by the defendant and the engine suffered piston and cylinder
damage a short time after the work had been done. The plaintiff sued the repairer for the cost of
doing the second repair job and relied upon res ipsa loquitur. The learned trial Judge felt that in the
circumstances of the case res ipsa loquitur was not applicable and the onus was always on the
plaintiff to show that sufficient defective work had been done and/or defective parts supplied by the
defendant. The Court of Appeal of Ontario, Morden, J.A., at p. 717 said:
"In Britannia Hygienic Laundry Co. v. Thornycroft & Co.
(1925), 95 L.J.K.B. 237, the plaintiff claimed damages
for alleged breach of contract by the defendants in that
they negligently failed to use reasonable care, skill and
diligence in overhauling and repairing the plaintiff's
motor lorry. An axle had broken two days after the
overhaul. It was agreed that the break was due to metal
fatigue. It was also proved that no external examination
during the period of overhaul would have disclosed the
fact that the metal of the axle was fatigued. The
plaintiff relied upon res ipsa loquitur. Bankes, L.J., at
p. 239,
said:'I think also that this is a case in which the rule res
ipsa loquitur does not apply because it seems to me only
to apply where the plaintiff, in complaining, has no
knowledge or means of knowledge as to what the actual
cause of the accident was and all that he is in a
position to say is that it occurred in reference to a
matter of which the person of whom the plaintiff is
complaining had full control and full knowledge, and the
thing of which he was complaining would not have happened
if the person complained of had exercised ordinary care.'
5

Warrington and Scrutton, L.JJ., agreed. In the case at bar, the plaintiff had full
control of the tractor except for the three occasions it was in the defendant's
possession. It broke down while it was being driven by the plaintiff's driver. It

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was then taken to the Mack Truck Co. and there is no evidence of its internal
condition when examined there beyond the burning on the pistons and the
scoring of the cylinders. In my opinion, the plaintiff cannot rely upon this maxim
but must bring home to the defendant specific acts of negligence in the
performance of its contract which resulted in final disintegration of the engine
before it can succeed in this action."
16 On the basis of the above authorities I am of the opinion that the maxim res ipsa loquitur does
not apply to the facts of this case. Therefore, in order for the plaintiff to succeed I am left with the
theories advanced by the expert witnesses Armstrong and Mazurek produced by the plaintiff. The
first theory was that the mechanic Ives failed to pre-lubricate the critical parts of the engine when he
reassembled the same and I have already found as a fact that this was not the case. The second
theory is that the bearings were the wrong size when installed and I can find no evidence before me
which establishes this contention by an preponderance of fact. In addition, the defendant offers at
least one theory, namely, the air lock possibility, which is a possible explanation for the damage.
17 Under the circumstances, and with some regret, I have come to the conclusion that the plaintiff
has failed to discharge the burden placed upon him to prove his case. The only relief I can offer the
plaintiff is to direct that the defendant reimburse the plaintiff for the sum of $28.80 being the cost of
the new oil pump installed on the second occasion when it was apparent that the old oil pump was
in good working condition.
18 As the plaintiff has substantially failed in his claim the defendant shall be entitled to his costs
of the action with the limiting rule to apply.
MILLER D.C.J.
qp/t/np/qlsdk/qldmp/qlcas

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