Porto Rico Gas & Coke Co. v. Frank Rullan & Associates, 4515-4517.

• Decision Date: 25 June 1951
• Docket Number: No. 4515-4517.,4515-4517.
• Citation: 189 F.2d 397
• Parties: PORTO RICO GAS & COKE CO. v. FRANK RULLAN & ASSOCIATES, Inc., et al. FRANK RULLAN & ASSOCIATES, Inc. v. UNITED STATES. UNITED STATES v. FOARD et al.
• Court: U.S. Court of Appeals — First Circuit

189 F.2d 397 (1951)

PORTO RICO GAS & COKE CO. v.FRANK RULLAN & ASSOCIATES, Inc., et al.FRANK RULLAN & ASSOCIATES, Inc. v.UNITED STATES. UNITED STATES v.FOARD et al.

Nos. 4515-4517.

United States Court of Appeals First Circuit.

May 14, 1951.

Rehearing Denied June 25, 1951.

Rafael O. Fernandez, San Juan, P. R. (Charles R. Hartzell, Daniel F. Kelley, Jr., and Wilson P. Colberg, San Juan, P. R., on the brief), for Porto Rico Gas & Coke Co.Juan E. Geigel, San Juan, P. R. (Guillermo Silva, San Juan, P. R., on the brief), for Frank Rullan & Associates, Inc. and others.

Newell A. Clapp, Acting Asst. Atty. Gen., Francisco Ponsa Feliu, Acting U. S. Atty. San Juan, P. R. and Paul A. Sweeney and Benjamin Forman, Attys., Washington, D. C., for United States.

E. T. Fiddler, Jose G. Gonzales, Tomas I. Nido and Fernando Fornaris, Jr., San Juan, P. R., for Fred T. Foard.

Before MARIS (sitting by special assignment), WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

Fred T. Foard, M. D.the plaintiff-appellee in No. 4517, has spent his entire professional life as an officer of the United States Public Health Service.On April 3, 1948, he held the rank of Colonel and was serving as the Director of the 6th District consisting of Puerto Rico and the Virgin Islands.As Director he had general supervisory charge of his District and was supplied by the United States with a dwelling house on the grounds of the United States Marine Hospital in San Juan.This house, known as QuartersNo. 1, BuildingNo. 2, or M. O. C. quarters, was owned and had been built by the United States, and it had been assigned to Dr. Foard by the appropriate governmental authorities.In consequence he did not draw any compensation or allowance for quarters which would have been paid to him in addition to his salary if quarters had not been assigned to him.

On the above date of April 3, 1948, a violent explosion of illuminating gas occurred in Dr. Foard's quarters as a result of which the building was wrecked, Mrs. Foard was killed outright, Dr. Foard was injured, and substantial damage was done to his household furniture and other personal effects.There is no possible dispute as to these basic underlying facts.

Approximately three months after the explosion Dr. Foard filed a complaint in the court below against the United States under Part 3, § 410(a) of the Federal Tort Claims Act, 60 Stat. 843, now Title 28 U.S. C. § 1346(b), in which, as amended, he demanded "judgment against defendant in the sum of $30,000.00 for the loss of his wife, her companionship and services, for the mental anguish and pain caused him by the death of his wife, and the expenses of her funeral, and judgment against defendant also in the sum of $5,000.00 for the loss of his household furniture, silverware, wardrobe and miscellaneous items, together with costs of this proceeding."

The United States answered denying liability, and then, complying with the provisions of Rule 14, Fed.Rules Civ.Proc. 28 U.S.C.A., brought in Frank Rullan & Associates, Inc., the appellant in No. 4516, as a third-party defendant.In its third-party complaint, the United States alleged in substance that Rullan had entered into a contract with the United States in September, 1945"to do some repair work" on the buildings in the Marine Hospital compound, including QuartersNo. 1, BuildingNo. 2, and the termination of its work in July, 1946, and then asserted that "the sole, direct and proximate cause of the explosion" was (a) the negligence of Rullan and its agents and servants in making the repairs called for in the contract and (b) Rullan's failure "to perform some of the repairs and to install some of the equipment required under the contract."Rullan answered in due course admitting the contract and the termination of its work thereunder as alleged, but denying its negligence and its breach of contract, and also setting up a number of other defenses which do not require enumeration at this point.

Rullan in its turn, also under Rule 14, supra, then brought in Porto Rico Gas & Coke Company, the appellant in No. 4515, as another third-party defendant.In this second third-party complaint Rullan alleged in substance that it had contracted with the Gas Company"for the performance of a certain part in the work called for" in its prime contract with the United States, that the Gas Company had entered upon and also terminated its work in January, 1946, and that "the sole, direct and proximate cause of the explosion" was, (a) the negligent failure of the Gas Company, its agents and employees, properly to do the work it had contracted to do, and (b) the Gas Company's breach of contract by failure "to install some of the equipment required" under its contract with Rullan.The Gas Company answered denying that it had ever contracted with Rullan for the performance of any part of the latter's contract with the United States.It conceded, however, that at Rullan's request it had provided the labor required to install five expansion joints, or swing joints,¹ in gas lines on the Marine Hospital grounds, but it insisted specifically "that in the installation of said joints it only furnished the labor, and that Frank Rullan & Associates furnished the materials and specified and pointed out the locations in which such joints were to be installed, and that the same were installed in accordance with such instructions."Wherefore it demanded a judgment relieving it of all liability in the premises.

The cases came to trial together on the merits in the court below sitting without a jury on these pleadings.

The following additional facts are either undisputed, or else were found by the court below on adequate, although sometimes conflicting, evidence and hence cannot be challenged on appeal.Rule 52(a), F.R. C.P.

Because of a general settlement of the land upon which the United States Marine Hospital in San Juan stood, breaks occurred prior to 1945 in the underground gas and water pipes in the hospital compound.In consequence an investigation of the situation was made by appropriate United States officials, and this investigation resulted in a contract between the United States and Rullan in September, 1945, covering, among several other items, the installation by the latter of eight swing joints in pipes leading from the gas main to various buildings in the area.The location of the joints called for in the contract was shown on a plan prepared by the United States in connection therewith, one of which was in the line leading into the M. O. C. quarters later occupied by Dr. Foard.Rullan promptly entered upon the performance of its contract, and late in December 1945 or early in January 1946, it in turn entered into a contract with the Gas Company whereby Rullan was to supply the materials (nipples and elbows) required, and the Gas Company was to install the swing joints called for in Rullan's contract with the United States and shown on the plan prepared by the latter referred to above.Although the work specified in the prime contract was performed under the supervision of a government inspector, neither the Gas Company nor Rullan installed any swing joint in the line leading to the M. O. C. quarters which later blew up.The other swing joints called for in the contract, however, apparently were installed.

The court below specifically found that because of the settling of the ground outside Dr. Foard's quarters the gas pipe leading into those quarters from the main became bent and strained to such an extent that a leak developed somewhere in the line in the basement under the house with the consequence that "a large quantity of gas accumulated underneath the said building" which "upon being ignited resulted in the above mentioned explosion."Furthermore it found that "swing joints or gas loops are safety devices or appliances which effectively and efficiently prevent the breakage of pipe lines as a result of ground settlements", and that had there been such a device in the line leading to Dr. Foard's quarters the line would not have been strained, bent and broken.Wherefore it concluded "That the sole, direct and proximate cause of the explosion was the accumulation and ignition of fluid gas underneath and within the aforementioned premises caused by a leakage of gas due to the absence of a swing joint or gas loop in the gas pipe feeding the plaintiff's quarters."

The court did not make any finding with respect to what ignited the gas, but it found "That there was no negligence on the part of the deceased or of the plaintiff herein."

On the basis of the foregoing findings and conclusions the court below determined that the government inspector had been negligent in failing to see to it that a gas loop was installed in the line to the M. O. C. quarters as the prime contract required, that Rullan had broken its contract with the United States, and that the Gas Company had broken its contract with Rullan.In consequence, assessing the plaintiff's entire damages at $18,900, it entered the judgment appealed from in which it first awarded the plaintiff the full amount of his damages against the United States, second awarded the United States the same amount against Rullan, and third awarded Rullan a like amount against the Gas Company.

The sections of the Civil Code of Puerto Rico(1930 ed.) presently material are quoted in full in the margin² with the particularly pertinent parts italicized.

The United States as appellant in No. 4517 makes but one contention.Pointing to the provision of the Federal Tort Claims Act which imposes liability only "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", it says that under local law a private person in the position of the United States would not be liable under the circumstances here disclosed.The reason for this is said to...