Hardware Mutual Insurance Company v. Lukken, 8538.

• Citation: 372 F.2d 8
• Decision Date: 12 January 1967
• Docket Number: No. 8538.,8538.
• Parties: HARDWARE MUTUAL INSURANCE COMPANY, Appellant, v. Robert M. LUKKEN, d/b/a Lukken Steel Construction Company, and Roy Tibbs, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

372 F.2d 8 (1967)

HARDWARE MUTUAL INSURANCE COMPANY, Appellant, v. Robert M. LUKKEN, d/b/a Lukken Steel Construction Company, and Roy Tibbs, Appellees.

No. 8538.

United States Court of Appeals Tenth Circuit.

January 12, 1967.

COPYRIGHT MATERIAL OMITTED

Richard D. Gibbon, Tulsa, Okl. (Covington, Gibbon & Poe, James E. Poe, Tulsa, Okl., with him on brief), for appellant.

Lee Grigg, Tulsa, Okl. (Houston, Klein & Davidson, Richard T. Sonberg, L. Michael Hager and Ronald Main, Tulsa, Okl., with him on brief), for appellees.

Before MURRAH, Chief Judge, and HILL and HICKEY, Circuit Judges.

MURRAH, Chief Judge.

Appellant Hardware Mutual Insurance Company issued a fire insurance policy on a building located in Tulsa, Oklahoma. A fire occurred, and Hardware as subrogee sued appellees Tibbs and Lukken on the theory that their negligence was the proximate cause of the fire. A jury found for the appellees, and Hardware appeals.

Hardware first complains of the court's refusal to direct a verdict or grant judgment n. o. v. in its favor. This means, of course, that Hardware has the heavy burden of convincing us that actionable negligence is the only permissible inference which can be drawn from the established facts. Christopherson v. Humphrey, 10 Cir., 366 F.2d 323. See High Voltage Engineering Corp. v. Pierce, 10 Cir., 359 F.2d 33; United States v. Hess, 10 Cir., 341 F.2d 444; Chicago, Rock Island and Pacific Railroad Co. v. Hugh Breeding, Inc., 10 Cir., 232 F.2d 584; Lussan v. Grain Dealers Mutual Ins. Co., 5 Cir., 280 F.2d 491. The facts were susceptible of more than one inference, and therefore the issue of negligence was for the jury.

The insured building was a corrugated steel Quonset type of structure. One of its doors was damaged when struck by a truck and Lukken contracted to do the repairs. He assigned his employee Tibbs, a welder of 15 years experience, to do the work which consisted of the removal and replacement of a steel door post and adjacent steel wall sections. The interior of the building was insulated with a foil back material which covered the ceiling and came down to some extent on the walls. The foil back was visible through chicken wire used to hold the insulation in place against the steel sections of the roof and walls. Above the damaged door was a piece of plywood which had been nailed to the steel studs and was thus separated from the wall by a space of about three inches. The insulation came down to the top of the plywood, but it is not clear whether it extended into the space between the plywood and the wall. To replace the door post it was necessary for Tibbs to use both a cutting and a welding torch at a point about two inches from the plywood. After the new post was welded into place, smoke was noticed coming from behind the plywood. Tibbs poured a small bucket of water into the space behind it but smoke continued to rise. Upon his helper's return with a second bucket of water Tibbs decided to remove the plywood. He did so. Flames broke out and spread so quickly there was no opportunity to use the second bucket of water. The insulation contained a highly inflammable asphalt adhesive, and the fire spread through the insulation to the rest of the building causing extensive damage to the contents.

Testifying as a recognized expert¹, Tibbs admitted that to determine the hazard of fire a welder should know what materials are used in a building; that he did not inspect the insulation to determine its inflammability; that he did not inspect the area behind the plywood; that the only fire fighting equipment he had at hand was a small bucket of water; and that he did not "* * * give any type warning at all to any representative of the R. C. Cola Company the lessee of the insured building as to any possibility of fire". Tibbs also testified, however, that in his experience with insulation of this type he had never seen any of it burn; that there was nothing about this foil back material to indicate it would burn; that in his opinion as an expert there was no "potential or possible fire hazard" at the work site except some pasteboard boxes which he removed; that in his opinion it was unnecessary to remove the insulation at or near the work site; and that a bucket of water to put out "smudges" and "smolders" is "all you need in welding". Lukken also testified as a recognized expert stating that in his experience working with and around insulation he had never found any that was inflammable, and that there was nothing about the appearance of this foil back material to indicate it was inflammable.

In harmony with the allegations of its complaint Hardware's motion for directed verdict or judgment n. o. v. was based on the admissions of Tibbs which we have detailed to the effect that he did not take certain precautions in the welding operation. This, said Hardware, was negligence as a matter of law. In its post verdict ruling on the motion the trial court took due note of Tibbs' testimony as to "the manner in which the work was performed", but he also observed that "* * * plaintiff did not offer any evidence that other welders under the same circumstances would have performed the work in a different manner or would have taken any other precautions." He concluded that "* * * the jury could have found defendants exercised ordinary care, or the jury could have found under the evidence, that the fire was not foreseeable by a reasonably prudent welder, because of the evidence to the effect that insulation usually does not burn."

On appeal Hardware repeats its argument that the uncontroverted evidence of Tibbs' failure to take the suggested precautions proved negligence as a matter of law.² In this connection it seems to argue that the case law establishes a legal standard of care or conduct requiring that the precautions be taken.³ Putting the case law aside for the moment and looking solely at the facts as detailed, we are unable to say that all reasonable men would conclude that those facts constitute a failure to exercise ordinary care. On the contrary, how a prudent welder would proceed to work in a steel building insulated with a material thought on the basis of years of experience to be non-inflammable seems to us to be eminently a question for the jury. Certainly we do not know how a prudent welder would have proceeded in the same or similar circumstances. Thus, unless the Oklahoma case law can be said to establish a standard of ordinary care requiring welders to take the suggested precautions under all circumstances, the standard of ordinary care was properly for the jury. We proceed to consider the case law.

In the Oklahoma case of Independent-Eastern Torpedo Co. v. Price, 208 Okl. 633, 258 P.2d 189, the question was whether a well-shooter was negligent in relying upon a shot detector to determine if an explosive had detonated when there was a more practical and positive method available, i. e. visual observation. In rejecting the contention that a verdict should have been directed for the defendants and upholding submission of the negligence issue to the jury, the court stated 258 P.2d at page 197 that "Where there is a practical and apparently certain means to determine a result, especially when dealing with a dangerous substance, and it is not used, and injury results from such conduct, the person responsible for such failure is liable." Although in that case the ultimate negligence issue was submitted to the jury, the quoted language, when viewed in the abstract, arguably sets a standard of care applicable to our case. But, we do not think so. It is one thing to establish a legal standard of care in terms of precautions applicable to situations involving known dangers. It is quite a different thing to impose that standard in situations like ours where no danger is known or apparent.

Nor do the cases from other jurisdictions, cited and relied upon by Hardware, support its thesis that the court should have decreed negligence as a matter of law. See Wood v. Becker Welding Shop, et al., La.App., 34 So.2d 924; Reliance Insurance Co. of Philadelphia, Pa. v. Pohlking, 60 Ohio App. 156, 19 N.E.2d 906; Lawrence Warehouse Co. v. Defense Supplies Corp., 9 Cir., 164 F.2d 773; International Mercantile Marine Co. v. W. and A. Fletcher Co., 2 Cir., 296 F. 855; United States v. Todd Engineering Dry Dock and Repair Co., D.C., 53 F.2d 1025. See also Anno. 49 A.L.R.2d 368. The cases do, to be sure, uphold liability for the negligent use of a blowtorch based upon failure to take prudent precautions, but none imposed negligence as a matter of law for failure to take precautions. Indeed, all of the blowtorch cases we have seen hold that the negligence issue is for the jury. See National Surety Corp. v. Todd County Dairy Coop, 269 Minn. 298, 130 N.W.2d 511; World Fire and Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 136 A. 681; Phoenix Ins. Co. v. Cook, 93 Ohio App. 503, 113 N.E.2d 925; Johnson v. Nicholson, 159 Cal.App.2d 395, 324 P.2d 307; Matthews v. Carpenter, 231 Miss. 677, 97 So.2d 522; Patton v. Dail, 252 N.C. 425, 114 S.E.2d 87. Also see two non-torch fire cases: Albany Ins. Co. et al. v. Holberg, et al., 8 Cir., 166 F.2d 311, involving a match discarded on a paint covered floor; National Lead Co. v. Schuft, 8 Cir., 176 F.2d 610, involving the operation of furnaces in a building filled with coal dust.

Hardware also relies on Restatement Torts 2d § 289, Comment j, to the following effect: "Recognition of Risk. It is not necessary that the actor should realize that the circumstances surrounding him are such as to make his conduct likely to cause harm to another. It is enough that he should realize that his perception of the surrounding circumstances is so imperfect that the safety or danger of his act depends upon circumstances which at the moment he neither does nor can perceive. In such case it is negligent for him to act if a reasonable man would recognize the necessity of...