Engelman v. Bird, 6823-A.

• Decision Date: 30 December 1955
• Docket Number: No. 6823-A.,6823-A.
• Parties: J. H. ENGELMAN, Plaintiff, v. Clell BIRD, Glenn M. Bird, and Commodore Bird, d. b. a. Salvage Lumber Company, a partnership, Defendants.
• Court: U.S. District Court — District of Alaska

136 F. Supp. 501

J. H. ENGELMAN, Plaintiff, v. Clell BIRD, Glenn M. Bird, and Commodore Bird, d. b. a. Salvage Lumber Company, a partnership, Defendants.

No. 6823-A.

District Court, Alaska First Division, Juneau.

December 30, 1955.

Warren C. Christianson, Sitka, Alaska, and R. E. Robertson, Juneau, for plaintiff.

Robert Boochever (of Faulkner, Banfield & Boochever), Juneau, Alaska, for defendants.

HODGE, District Judge.

Plaintiff in this action seeks to recover damages for the loss in reduced value of 220 boxes of dynamite and the total loss of 203 boxes of dynamite stored by him in a powder magazine located near the town of Sitka, together with the cost of labor and materials in removing and destroying said damaged dynamite, and together also with punitive damages, all by reason of alleged unlawful, reckless or negligent conduct of the defendants in removing from one side of the magazine a heavy layer of gravel, in such manner that the corrugated metal magazine collapsed beneath the weight of the remaining gravel on the top and other side of the structure, crushing the contents.

It is admitted that the defendant Commodore Bird, acting on behalf of the above partnership and through his employees, removed the gravel as alleged; and it is also undisputed that the cause of collapse of the magazine, with resulting damage to the contents, was a structural failure resulting from the removal of the gravel from one side and the heavy load remaining on top and the other side. The defendants deny all claims of negligence and also allege contributory negligence on the part of the plaintiff. The case was tried to the Court without a jury, following which extensive briefs on points of fact and law were submitted by both parties.

The principal questions to be determined are: (1) were the defendants negligent? (2) did the plaintiff have sufficient title or right of possession in the dynamite to entitle him to recover damages? (3) if so, the measure and extent of such damages; (4) whether or not plaintiff was contributorily negligent; and (5) the matter of punitive or exemplary damages.

The evidence upon the first point turned largely upon the issue of whether or not plaintiff had erected and maintained at the time of the injury an adequate sign, warning all others of the danger of high explosives in the magazine. The plaintiff and six other witnesses testified that there was such a sign; the defendant Commodore Bird and three witnesses testified that there was none. Two of plaintiff's witnesses were employed in the cleanup of the damaged dynamite and may be considered to have had an interest in the controversy, although they denied that such interest would influence their testimony. Most impressive was the testimony of Vernon J. Joyer, District Ranger, U. S. Forest Service, having control over the magazine and the duty to inspect it for safety measures, who had observed such sign upon his last inspection previous to the collapse; also Keith Snowden, who testified that he had erected the sign at the instance of plaintiff and that the sign was still there within a week prior to the collapse, at which time he was hauling gravel from the vicinity; also other disinterested witnesses. I find that the evidence clearly preponderates in favor of the plaintiff on this issue.

Moreover, even without such sign, there was sufficient evidence of negligence, or the failure to exercise due care, by the defendants in removing the gravel. For it was disclosed that no permit was obtained by the defendants from the U. S. Forest Service, whom the defendant Commodore Bird knew to be in charge of the magazine, for removal of the gravel, although he had discussed such necessity with a representative of the Bureau of Public Roads who had informed him of the availability of the gravel for road maintenance purposes. Had he done so he would have been obviously informed of the explosive contents of the magazine and the danger in removal of the supporting gravel. Under the law of torts a person may be held liable for acts dangerous intrinsically or because of the manner of performance, without using reasonable care or skill. American Law Institute, Restatement of Law of Torts, Secs. 297-302, 499.

Upon the question of the right of the plaintiff to recover damages for the loss of or injury to personal property for negligence there appears some conflict of authority, but principally by reason of the failure of some of the state courts to recognize the distinction between the "possession rule" as it applies to actions in trespass and actions based upon negligence. With few exceptions, however, the rule appears well established that in order to maintain an action for damage to personal property caused by the negligence of the defendant, the plaintiff must have been the general owner of the property, or have had some special property interest in it, at the time of the injury. Northern Pacific Ry. Co. v. Lewis, 162 U.S. 366, 16 S.Ct. 831, 40 L.Ed. 1002; King v. Great Northern Ry. Co., 20 Idaho 687, 119 P. 709; Mathews v. Great Northern Ry. Co., 7 N.D. 81, 72 N.W. 1085; Lockhart v. Western & A. R. Co., 73 Ga. 472, 54 Am.Rep. 883; Murphy v. Sioux City & P. R. Co., 55 Iowa 473, 8 N.W. 320, 39 Am.Rep. 175; Annotation 150 A.L.R. 219.

The decision of the Supreme Court of the United States in the Lewis case appears to be controlling and is followed in most of the other decisions. This was a suit to recover damages for the destruction of 10,000 cords of wood cut upon the public domain, destroyed by fire due to the claimed negligence of the defendant. The opinion of the Court discusses this subject at some length and clearly makes the distinction between actions such as trespass or conversion in which cases possession only need be proven, and cases of negligence as to which it is held that the plaintiffs had no title to the wood and therefore no such lawful possession as would enable them to recover damages for its negligent destruction. The opinion of the Court in part states, 162 U.S. at page 373, 16 S.Ct. at page 833:

"The ground of the plaintiffs' right of action is the damage which has been caused them by the negligent act of the defendant, and, unless they are able to prove some damage, consequent upon such negligent act, the plaintiffs are not entitled to recover. This is not an action where they would be entitled to nominal damages if no damages whatever were in fact sustained or proved. They must prove the nature and extent of the damage, and if the property destroyed were not owned by them, and if they had no special property therein, and did not have possession thereof, it is entirely plain that no cause of action was proved. The plaintiffs claim that, so far as the defendant is concerned, they did prove property in the wood, and that such proof

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