Ray v. United States, 15601.

• Citation: 228 F.2d 574
• Decision Date: 20 January 1956
• Docket Number: No. 15601.,15601.
• Parties: Marvin R. RAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

228 F.2d 574 (1955)

Marvin R. RAY, Appellant, v. UNITED STATES of America, Appellee.

No. 15601.

United States Court of Appeals Fifth Circuit.

December 23, 1955.

Rehearing Denied January 20, 1956.

R. Beverly Irwin, Atlanta, Ga., for appellant.

Marcus A. Rowden, Attorney, Dept. of Justice, Washington, D. C., James W. Dorsey, U. S. Atty., Chas. D. Read, Jr., Asst. U. S. Atty., Atlanta, Ga., Paul A. Sweeney, Dept. of Justice, Washington, D. C., Geo. S. Leonard, Acting Asst. Atty. Gen., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

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 January 19, 1951. It permitted Lockheed to use the installation on a nocharge 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-1. He turned left into this crosstunnel 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.¹

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.²

The specifications under which the contract was performed called for a high potential test.³ 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.⁴ 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....