Marvin R. RAY, Appellant, v. UNITED STATES of America, Appellee, 228 F.2d 574

TUTTLE, Circuit Judge. Appellant, Marvin R. Ray, brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. 1346(b), to recover for injuries sustained by him as the result of an explosion of high voltage electrical cables in a Government-owned aircraft factory, leased and operated at the time of the explosion by the Lockheed Aircraft Corporation. ■ It was alleged that the explosion was the result of the negligent and improper manner in which the cables were installed and the Government’s failure properly to inspect the cables and maintain the buildings.

On February 8, 1955, the United States District Court for the Northern District of Georgia, Atlanta Division, after a trial on the merits, entered judgment for the Government. The relevant facts may be summarized as follows: In 1942, the United States undertook to construct an aircraft assembly plant at Marietta, Georgia. For the construction of this plant, it entered into a contract with Robert and Company, Associates, of Atlanta, Georgia, for architectural, engineering, and construction management services.

The contracts for the actual construction work were, in the main, prime contracts entered into between the Government and various contractors. Aside from performing certain architectural and engineering services and aiding in the procurement of materials and equipment, it was Robert and Company’s principal function to coordinate and supervise the various phases of construction performed by the, individual prime contractors and ascertain that the work met appropriate specifications and contract requirements.

It was provided in the Robert and Company contract that the facilities being constructed were to be operated by the Bell Aircraft Corporation upon completion. In connection with the construction of this aircraft factory, a network of high voltage cables were installed through the area of the project to convey to the various parts of the assembly plant the electrical current necessary to power the various machines and provide illumination. Many of these cables were underground and led from the source of power, a Georgia Power Company substation, to various substations of the aircraft plant.

The cables were furnished by the Habirshaw Cable and Wire Division of the Phelps Dodge Copper Products Corporation and were installed by the Broadway Maintenance Corporation under a prime contract with the Government. Upon completion of the construction of the aircraft production facilities early in 1943, they were turned over to Bell Aircraft pursuant to the latter’s contract with the Government. Upon Bell’s assumption of the premises, operation of the plant was commenced and operations continued until the end of the war in 1945.

In July, 1946, Bell’s contract with the Government was terminated and the plant turned over to the Air Force which maintained the plant in a deactivated state until 1947. At that time, the plant was leased to the Allied Packaging Company, which operated it until sometime in 1949 when the Government reassumed possession and turned the management of the facilities, again deactivated, over to the Tumpane Company.

On January 5, 1951, the United States, through the Air Materiel Command, entered into a contract with the Lockheed Aircraft Corporation for the renovation and mass production of certain types of military aircraft. Lockheed’s obligation to complete performance was made contingent upon the Government’s furnishing, under a separate facilities contract, the plant in question. The contemplated facilities contract was entered into on J anuary 19, 1951.

It permitted Lockheed to use the installation on a no-charge basis and provided that the facilities were furnished without any warranty, express or implied, on the Government’s part as to serviceability or fitness for use, but was subject to the right of Lockheed to inspect and reject the same. The premises were accepted by Lockheed and operation of the plant commenced in March, 1951. About 7:00 A.M., on December 4,1951, appellant Ray, an employee of Lockheed engaged in engine assembly work, entered the aircraft plant for the purpose of reporting for work.

He entered through Tunnel No. 4 of the plant and walked along this tunnel until he reached Tunnel No. 5, a crosstunnel in Building B-l. He turned left into this cross-tunnel and had reached a point abreast of the door to Substation 2, which housed electrical facilities, when an explosion occurred in the manhole of Substation No. 2. The force of this explosion knocked Ray unconscious and when found immediately after the explosion he was in a stunned condition against the wall opposite the door to Substation No. 2.

He was given preliminary aid at the plant and was thereafter removed to a local hospital for treatment. The explosion occurred on a Tuesday; by the following Monday, Ray was able to report back to Lockheed for work and continued his employment there, his duties being limited in conformity with his injuries. In April of 1952, Ray underwent surgery in which two of the nerves in the cervical spine were separated and during the years 1952-1955, received intermittent medical treatment for injuries to the cervical spine and nerves.

During almost all of this period Ray continued his work at Lockheed and was working there at the time of this suit although the work was more restricted than prior to the explosion. Subsequent to the accident, Ray received compensation under the Georgia Workmen’s Compensation Act, Code, § 114-101 et seq., for the injuries incurred as the result of the explosion. The evidence authorized a finding that he had received some degree of permanent injury. It appears that the cables themselves used in the installation were of first quality.

However, it was necessary to make a substantial number of splices since the cables were not long enough in all cases. When the installation work was completed Robert and Company’s inspection ascertained that certain potential heads insulating the cables’ terminals had not been properly filled with insulating material. By agreement with the contractor this dispute was resolved by arbitration. Mr. Paul Boyd of the Georgia Power Company was thereafter called in to inspect the potential heads and resolve the controversy.

He performed the inspection, determined that the potential heads had not been properly filled with insulating compound and required Broadway to correct the defect. This correction was accomplished. At the same time the above inspection was effected, Boyd inspected two splices, found that these splices were not properly filled with insulating compound and reported this fact to Robert and Company.

The court found that it did not appear where the splices were located, whether the insufficiency of compound in those splices was corrected or whether this defect was present in more than two of the splices, but that Robert and Company inspectors had approved the completed installation. Before being placed in operation the entire system was subjected only to visual inspection and what is known as the “mega” test. -The specifications under which the contract was performed called for a high potential test. The Government did not require a high potential test prior to acceptance of the installation.

There was ample evidence to warrant the finding of the trial court that “it is the best, accepted practice upon the completion of a new electrical -installation such as the one here involved, that just before the same is accepted and put into actual use that it be tested by what is known as a high potential test.” During the first two years of operation by Bell there was one explosion of a splice, and there were one or two short circuits which did not result in an explosion. There was a further explosion or fault of a splice in 1947 in a part of the circuit that had been de-energized.

Neither of these faults related to the particular splice which was in the manhole which exploded on the occasion of plaintiff’s injury. The circuit of which this splice formed a part had been energized before the plant went into operation in 1943, and had continued in an energized state down to the time of the accident. The full load of electrical current had been applied to it during the Bell operation of some two and one-half years and subsequently during the Lockheed operation from March until December, 1951.

There was no visible or apparent defect in the splice here involved, and the court found that it was impossible to conclude with any degree of accuracy the exact cause of the explosion, although both parties discussed the merits of the case upon the assumption that there was a failure in the splice causing a short circuit. There was testimony to the effect that the explosion could have been caused by deterioration of the cables themselves or by deterioration of the insulating material protecting the splice. Plaintiff’s right to recover depends upon the provisions of the Federal Tort Claims Act.

The Government contends that under this law there is no liability on the Government unless the act or omission which injures the plaintiff is one which would make liable some agent or employee of the Government for whose acts it is held accountable under the doctrine respondeat superior. Numerous cases are cited for this proposition, including, from this court, United States v.

Campbell, 5 Cir., 172 F.2d 500, at page 503 where Chief Judge Hutche-son, speaking for the court, said: “The whole structure and content of the Federal Tort Claims Act makes it crystal clear that in enacting it and thus subjecting the Government to suit in tort, the Congress was undertaking with the greatest precision to measure and limit the liability of the Government, under the doctrine of respondeat superior * * *» See also Hubsch v. United States, 5 Cir., 174 F.2d 7, and Goodwill Industries of El Paso v. United States, 5 Cir., 218 F.2d 270.

Appellant rejects this contention and asserts that the Government is liable to a third party in all cases in which an individual would be liable, without reference to the suability of the agent or employee. We shall proceed to a consideration of this case, however, without at this time passing on this question, for unless actionable wrong is shown under the applicable state laws, the plaintiff cannot recover even though the statute’s application is not strictly confined to the respondeat superior theory of liability.

The plaintiff here bases its claim for damages on allegations that the Government was negligent in six respects: (1) in ndt taking down and reconstructing all electrical connections after it learned of deficiencies therein from Boyd and (2) in allowing the electrical system to be placed in use without first subjecting it to a high potential test; (3) in not taking down and reconstructing the electrical connections after it learned of explosions in the splices and (4) in failing to subject the electrical system to the high potential test after it learned of these explosions; (5) in permitting the electrical system to be used when it knew or ought to have known that it might explode and (6) in failing to warn Ray of the danger of exploding cables.

It will be observed that these alleged acts of negligence took place during three time periods: the first two during construction of the plant in 1942 and before it was turned over to Bell in early 1943; (3) and (4) after explosions had occurred, in 1944 and 1947; and (5) and (6) thereafter and up to the date of the explosion, on December 4, 1951. The United States denied the acts of negligence asserted and thus put on the plaintiff the burden of proving that in at least one respect negligence of, or imputable to, the Government was a cause of the unfortunate accident.

The Government itself did not construct the facility but had this done by an independent contractor. It would, therefore, be liable for injury to plaintiff from faulty construction or from failure to subject the work to a proper test before operation only if such faulty construction or failure to test constituted negligence as to this plaintiff, and only if the negligence of the contractor is to be imputed to the Government as owner and if such negligence had a causal connection with the injury.

First, as to faulty construction: The only evidence as to this was the fact of the explosion, plus the inferences which the plaintiff says should be drawn from the fact that certain other electrical installations known as potential heads and two splices, other than the one here in question, had been defectively installed.

The court held that even if there had been faulty construction of the particular splice, that was not the cause of this explosion, because several witnesses testified that faulty construction of the splice would have caused a fault or failure within a period much shorter than the seven or eight years that had elapsed.

Although the court did find that it was the accepted practice that an installation such as this be tested by a high potential test before being put into use, this finding could not amount to a finding of causal negligence because the court in effect held that even if such a test had been made, this particular splice would have passed the test, since the court found that had there been a defect in the splice it would have faulted long before December, 1951. This finding of the court is amply supported in the record and cannot be ■ set aside by us as clearly erroneous.

Thus, it is not necessary for us to consider whether the Government’s failure to require the high potential test, even if negligent, is the kind of act or omission which, under the Georgia law, would be attributable to the Government either under the theory of landlord liability or under the theory of nondelegable duty in the employment of another to perform an inherently dangerous act.

If, in other words, it should be held, as we do not, that the Tort Claims Act imposes on the Goveimment the same liability as a landlord with reference to defective construction or as an employer in engaging a contractor to perform an inherently dangerous task, the court’s finding on this branch of the case would acquit the Government, because it amounts to a finding that there was no defect in construction and that the contractor was not negligent.

Next, as to the duty of the Government as to proper maintenance or reconstruction after certain faults in other parts of the system had been experienced: Having found, as it did, that this splice was not defectively construct-, ed, what did the trial court have before it upon which it was required to, or even permitted to, find a duty on the Government, as owner of the property, to make a particular radical. test of this splice or take it down fqr the purpose of inspection?

The plaintiff points to two explosions in splices, one of which occurred within two years after construction and approximately six years before the accident here complained of, and the other of which occurred under conditions of unusual significance.

The plaintiff says that since other splices had faulted the court should infer that the particular splice here in question had become defective and should find that the Government was put on notice of this defective condition by reason of the earlier faults, and that it thereupon became liable to the plaintiff for failing to keep the premises in repair under the Georgia statutory requirement. This liability, however, is not absolute. It arises only if the landlord has knowledge of the defect or sufficient facts to impute knowledge and a reasonable opportunity to repair.

The inference, which the plaintiff says the court was required to draw, that the faults in other splices amounted to notice to the Government of a fault in this splice, is hardly a permissible one, much less one which the court, as the finder of fact, was required to draw. This is particularly true in light of the court’s finding, above referred to,, that this particular splice was not made defectively. The record does not clearly show how many such splices there were in all. We know there, were many, since there were several in each of the several manholes.

It is farfetched indeed to contend that the court must have found that the occurrence of two splice explosions, one within two years of completion and the other under the proven circumstance that it was part of the circuit which had long been de-energized and which occurred immediately upon being re-energized, was notice to the Government that all splices were defective and required attention. This is especially so since the failure in 1944 fell exactly into the pattern depicted by the experts who testified that defective construction or insulation of a splice would cause a fault within two years.

In any event, the question whether there was any notice was at most a question of fact which the court decided adversely to the plaintiff. We cannot hold that such finding was clearly erroneous. As to plaintiff’s criticism of the Government for permitting the electrical system to be used when it knew or ought to have known that it might explode, and in failing to warn the plaintiff of the danger, these contentions we think are answered by what has just been said. It does not apear that, assuming the splice to have become defective, the Government had any notice of that fact.

What has been said here has been on the assumption which we have indulged in order to test the strength of plaintiff’s case, that he would be entitled to recover even though such recovery had to be founded upon the peculiar liability of imputed negligence under the Georgia law rather than, as the Government contends, being entitled to recovery only by showing such relationship as would bind the Government on the theory of re-spondeat superior.

Having determined, as we do, that no right to recover even under his theory was shown to the satisfaction of the trial court, whose duty it was to make the findings of fact, it is not necessary for us again to give consideration to the argument of counsel to the effect that the Tort Claims Act is broad enough to encompass the type of liability which is permitted under the Georgia law.

The trial court briefly mentioned the theory of res ipsa loquitur, and appellant urges his right to recover on this theory although confidently asserting that he has shown sufficient facts to demand a finding of specific acts of negligence without reference to this principle.

As the trial court pointed out, it would be impossible to hold the Government liable on the doctrine of res ipsa loquitur without finding that Lockheed was the Government’s agent, since it is apparent that the facility, whose failure injured the plaintiff, was not within the exclusive control of the Government at the time of the unexplained occurrence, but was in the control of Lockheed. The trial court found that Lockheed was not an agent of the Government and thus found appellant’s reliance upon this theory of recovery unfounded. We think that for another reason recovery on this theory could not be supported.

As was stated by this court in Williams v. United States: “The doctrine of res ipsa loquitur is a rule of circumstantial evidence which permits the inference of negligence to be drawn from the occurrence of an accident upon proof of certain facts.

Generally stated, the doctrine is that, in the absence of an explanation by the defendant when a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have its management use proper care, a sufficient basis is afforded for a finding and conclusion that the accident arose from want of care. * * * ” Here there was ample evidence to show that a fault of the kind that is thought to have caused this injury can and does occur in. an electrical system without the negligence or want of care of any person.

There is thus no case ,of res ipsa loquitur presented because the primary assumption is lacking. We do not find that any of the alleged inconsistencies in the court’s findings of fact or any of the errors in findings asserted by the plaintiff in its motion to amend the court’s findings of fact relate to material matters necessary to a decision of this case. .. No error in the judgment of the trial court having been shown, it is therefore. Affirmed. . The potential head is the point -where the cable terminates.

The head is insulated and sealed and has terminals that may be connected to transformers or other equipment. . The “mega” test measures the resistance of the installed system and tests to insure that there is no grounding or short circuiting. . The high potential test involves the introduction into the electrical system of an electrical load at least double that which it will normally be expected to carry. The normal load in this situation was approximately 12,000 volts.' . The relevant provisions of the Tort Claims Act provide as follows: 28 U.S.C.A. § 1346(b). “Subject to the provisions of

chapter 171 of this title, the district courts, together with the District Court for the Territory of Alaska, the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.A. § 2671: “As used in this

chapter and sections 1346(

b) and 240.1(

b) of this title, the term— “ ‘Federal agency’ includes the executive departments and independent establishment of the United States, and corporations primarily acting as, instrumentalities or agencies of the United States but does not include any contractor with the United States. “ ‘Employee of the government’ includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” 28 U.S.O.A. § 2674: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” .

There is no question of exemption from the act on the ground that the waiving of the high potential test was a “discretionary act” by the War Department. Such defense was not urged by the Government under the provisions of 28 U.S.C.A. § 2680, which provides: “The provisions of this

chapter and

section 1346 (

b) of this title shall not apply to— “(

a) Any claim based upon

an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. * * • ” For the application of this doctrine see In re Texas City Disaster Litigation, 5 Cir., 197 F.2d 771, affirmed Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427. .

Section 61-112, Code of Georgia, provides as follows: “Liability of landlord for negligence of tenant and for failure to repair. — The landlord, having fully parted with possession and right of possession, is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; but he is responsible to others for damages arising from defective construction or for damages from failure to keep the premises in repair.” .

Section 105-502, Code of Georgia, provides as follows in pertinent part: “The employer is liable for the negligence of the contractor • * * 2. If, according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed * * . See footnote 4, supra. . Ocean Steamship Company v. Hamilton, 112 Ga. 901, 38 S.E, 204. . Expert witnesses testified that deterioration is hastened when the system is de-energized and subsequently re-energized. . Williams v. United States, 5 Cir., 218 F.2d 473, at page 475.