Glens Falls Ins. Co. v. Danville Motors, Inc.

• Decision Date: 20 June 1964
• Docket Number: 15422.,No. 15421,15421
• Citation: 333 F.2d 187
• Parties: GLENS FALLS INSURANCE COMPANY, Plaintiff-Appellee, v. DANVILLE MOTORS, INC., Defendant-Appellant. GLENS FALLS INSURANCE COMPANY, Plaintiff-Cross-Appellant, v. DANVILLE MOTORS, INC., Defendant-Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

333 F.2d 187 (1964)

GLENS FALLS INSURANCE COMPANY, Plaintiff-Appellee, v. DANVILLE MOTORS, INC., Defendant-Appellant.

GLENS FALLS INSURANCE COMPANY, Plaintiff-Cross-Appellant, v. DANVILLE MOTORS, INC., Defendant-Cross-Appellee.

Nos. 15421, 15422.

United States Court of Appeals Sixth Circuit.

June 20, 1964.

Pierce Lively, and James F. Clay, Danville, Ky., for Danville Motors, Inc.

William A. Miller, Louisville, Ky., for Glens Falls Ins. Co.

Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Glens Falls Insurance Company, plaintiff-appellee, sues in this diversity action as subrogee of its insured, the owner of an apartment building located in Danville, Kentucky. This building was destroyed by a fire which started in adjoining premises used by defendant-appellant, Danville Motors, Inc., to operate a garage for the sale, service and repair of automobiles. After paying $57,178.21 to its insured for the loss of its building, plaintiff brought this action to recover such sum from defendant, claiming that the fire was caused by negligence of an employee of defendant. The cause was tried to the District Judge who gave judgment for plaintiff in the above amount, but denied a request that interest on the amount of the judgment (entered April 2, 1963) be allowed from the date when the complaint was filed, August 31, 1960.

On this appeal, defendant asserts that the evidence does not support the District Judge's finding of fact of actionable negligence. For this alleged error, defendant asks reversal, with a direction to enter judgment dismissing the complaint. Defendant further contends that the District Judge improperly admitted and considered evidence of defendant's alleged violation of certain Standards of Safety promulgated by the Kentucky State Fire Marshal. For this alleged error, defendant asks reversal and a new trial. Plaintiff has cross-appealed, asserting error in the District Judge's refusal to allow interest on its claim from the date of filing its complaint.

1) Sufficiency of the evidence.

The fire causing the insured's loss started in defendant's garage while one of its workmen, one Weldon, was draining a leaking gas tank on a truck. To accomplish the draining, the workman first placed the truck on a hoist and raised it about two feet. Using a so-called "creeper," he propelled himself under the truck and reached up with a wrench to take out the tank's drainage plug, having placed a pan made of a cut off portion of an oil drum under the tank. The plan of operation was to allow the gasoline to flow openly from the tank into the pan. Having partially loosened the plug, which caused the gasoline to drain out in a small stream, the workman left the place of operation to get some further tools, including additional wrenches. Returning to his job, he got back on the creeper, pushed himself under the truck, and reached up to get hold of the drainage plug. During his work he had been using a wrench made of a ferrous metal, some other tools whose metal content was not determined, and the creeper, a flat device with four wheels designed to allow workmen to lie on it while working beneath vehicles. The evidence did not disclose whether the wheels on the particular creeper were metal, wood or rubber, although such wheels are generally made of metal. When Weldon reached up to get hold of the drainage plug in the gas tank, the tank being at the rear of the vehicle, he heard a noise, "a whoomph," and felt heat on his back. He turned and saw a flame toward the front of the truck, "under the oil pan." The flame appeared to be two or three inches off the floor. It went immediately to the pan into which the gasoline had been draining and thereupon the fire spread through the garage and the adjoining apartment building. The appearance and progress of the flame was described by the witness as follows:

"Q. Was there anything known to you of any combustible nature where the flame was located which could have been the subject or the reason for this flame burning other than the gasoline vapor?

"A. No, sir.

"Q. Did the flame trail back into the pan as if following a trail of fumes?

"A. Yes, sir."

The workman testified that he knew the method he was using to drain the gasoline would permit vapors to spread to the surrounding area, and that gasoline vapors or fumes are very easily ignited. He stated that he did not direct any fan "or anything of that sort" over the pan or in its vicinity to disperse the gasoline fumes. There were ventilating fans in the building which were in operation and the testimony as to their location, and the location of the truck being repaired and its relative position to walls and other vehicles which may have been obstructions, left uncertainty as to how effective the ventilation system may have been. There was evidence that the truck with gasoline leaking or flowing from it into the pan, had been upon the hoist fifteen to thirty minutes before the fire started.

Two witnesses for plaintiff, one an engineering professor and the other a man experienced in the operation of a repair garage, testified that the method used by defendant's workman to drain the tank was dangerous and not in keeping with safe methods known and used in like establishments. Their criticism of defendant's method was directed primarily at allowing an open flow within an enclosure. Safer and customary methods described included draining outside of a building and, in enclosed areas, siphoning and the use of funnels, hoses and cans with small openings, all for the purpose of preventing the gathering and concentration of gasoline fumes.

Plaintiff's expert witness, Dr. Myron Howard Chetrick, Director of the University of Louisville Institute of Industrial Research, and Professor of Engineering Research, testified that the open flow of gasoline into the oil drum pan was calculated to create a dangerous accumulation of gasoline vapors; that a spark from any source intruded into such an accumulation would ignite it; that the ignition would take place "at the point of gas concentration in combustible limits closest to the point where the spark occurred." Dr. Chetrick could not identify the source of the spark that triggered the fire here involved, but stated that it could have come from one of several sources — the movement on the concrete floor of the metal wheels of the creeper, if it had them, the striking of a ferrous metal tool or tools upon the concrete or upon each other, friction at the drainage plug or the striking of the gasoline upon the metal pan into which it was flowing.

Opposed to plaintiff's witness were several called by defendant, who testified that the method employed by defendant's workman, Weldon, was the same as that used by them, and others, in carrying on garage operations in like circumstances.

From the evidence before him, the District Judge concluded:

"The testimony seems convincing that the method used by the defendant\'s employee in draining the gasoline from the gasoline tank of the automobile * * * by open flow of the stream from an elevation of two feet or more constituted negligence, and that such negligence was the proximate cause of the conflagration * * *."

Appellant's attack upon the District Judge's conclusion arises almost entirely from the court's description of Weldon's method of draining "by open flow of the stream from an elevation of two feet or more." (Emphasis supplied.) We are not sure that we understand appellant's position, so to expose it we quote counsel's words:

"We now come to the conclusion of the court that permitting gasoline to drain from an elevation of two feet or more was negligent. Quite frankly, the idea that the court would seize upon the elevation from which gasoline would be permitted to flow as a basis for determining negligence or the absence thereof is an idea which no one expected. Neither party directed proof toward this aspect of the case. Plaintiff-appellee took the position that permitting gasoline to be drained by an

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