Hercules Powder Co. v. Automatic Sprinkler Corp. of America

• Decision Date: 29 May 1957
• Citation: 311 P.2d 907,151 Cal.App.2d 387
• Court: California Court of Appeals Court of Appeals
• Parties: HERCULES POWDER COMPANY, a corporation, Estella V. Ackelbein, et al., Plaintiffs and Appellants, v. AUTOMATIC SPRINKLER CORPORATION OF AMERICA, a corporation, and J. W. Mott, Defendants and Respondents. Civ. 17133.

Page 907

311 P.2d 907

151 Cal.App.2d 387

HERCULES POWDER COMPANY, a corporation, Estella V. Ackelbein, et al., Plaintiffs and Appellants, v. AUTOMATIC SPRINKLER CORPORATION OF AMERICA, a corporation, and J. W. Mott, Defendants and Respondents.

Civ. 17133.

District Court of Appeal, First District, Division 2, California.

May 29, 1957.

Rehearing Denied June 28, 1957.

Hearing Denied July 26, 1957.

Philsbury, Madison & Sutro, San Francisco, Eugene M. Prince, Francis N. Marshall, Noel Dyer, San Francisco, of counsel, for appellant Hercules Powder Co.

Appeal, Liebermann & Leonard, San Francisco, for appellants Estella v. Ackelbein, et al.

Bronson, Bronson & McKinnon, San Francisco, for respondents.

KAUFMAN, Presiding Justice.

This is an appeal from a jury verdict in favor of all defendants and against all plaintiffs, in an action for damages due to an explosion which occurred on February 12, 1953, at the Hercules Powder Company's explosive manufacturing plant near Pinole, California. The appellants are Hercules Powder Company, joined pursuant to Labor Code Section 3853, by 34 individual appellants who are 22 injured Hercules employees and the heirs of 12 deceased Hercules employees. All of the appellants alleged negligence in the design, manufacture, installation, inspection and repair of an automatic sprinkler system, against the respondent, Automatic Sprinkler Corporation and two of its employees, J. W. Mott and F. E. Zaiser. Hercules alone also alleged breach of warranty. The lower court granted a non-suit to Zaiser as to all causes of action, and a non-suit to Mott on the causes of action for breach of warranty. Respondents asserted the defense of contributory negligence against appellant Hercules and the defense of assumption of risk against the individual appellants. The facts are as follows:

In 1951 Hercules built a new 'Pulp Dry & Dope House' as the previous one had been destroyed by a fire in June 1950. In this building certain materials known as 'dope' were processed. In another part of the Hercules plant, known as the 'mix house' these dopes were combined with nitroglycerin to make various kinds of commercial dynamites.

In June 1951, after some correspondence and in accordance with Hercules specifications, the respondents installed a new type of 'low pressure dry pipe' valve and automatic sprinkler system in the new dope house. The system worked as follows: Inside the enclosed valve, water under pressure at 90 lbs. per square inch was held down by a cover or clapper; throughout the sprinkler piping and behind the sprinkler heads, air was held at a pressure of 6 to 7 lbs. per square inch. When the air pressure above the clapper was reduced to 3 lbs. per square inch or less, a weight mechanism in the valve released a latch which opened up the clapper, and permitted the water to pour through the verticle riser pipe at the top of the value to the sprinkler piping and sprinkler heads onto the fire. The air pressure above the clapper was reduced by the melting of a fusible link in the sprinkler head. The fusion point of the link was 165~F. which is several hundred degrees below the burning temperature of the dopes processed. The design of the valve rendered the system inoperative if the valve was waterlogged by water leaking into the dry piping above the clapper and exerting water presure equal to or above 3 lbs. per square inch. At some time before the accident, Hercules installed a drip leg on the air pipe furnishing the air supply to the valve, to drain off any water which accumulated in the air pipe. One hundred and forty-seven sprinkler heads spaced 4 to 5 feet apart were installed near the ceiling of the building.

The respondent Automatic Sprinkler Corporation was informed that the sprinkler system and valve were to be installed in the dope house which was a place of 'extra-hazardous occupancy', but it does not appear that the respondent was consulted as to what type of sprinkler system and valve would be best for the particular building. On other occasions, Automatic had been consulted by Hercules about high speed fire prevention and extinguishing systems, and had installed many different types of devices in various Hercules plants. Hercules had been informed of the development of the dry pipe valve for a number of years and had been informed by Automatic that the system was reliable and would work within 15 to 20 seconds after the fusion of the sprinkler heads. The system installed by respondent was the first of its kind in California, and the only system of its kind on the market at that time. Respondent Mott, the district super-intendent of Automatic Sprinkler Corporation, who was charged with the installation of the system had never seen or been instructed about the 'low pressure dry pipe valve' which was to set the sprinkler system in motion.

Although the respondent had no contract for the maintenance of the sprinkler system with Hercules, respondent regularly inspected and tested the dry pipe valve, at intervals of about six months, after the initial installation which was completed in June 1951. There is conflicting evidence as to the amount and type of instruction given to Hercules employees by the respondents in the course of the installation and subsequent inspection of the system, or about the possibility of the water-logging of the valve.

In January 1953, a month before the accident, Mott again tested the valve in the presence of several Hercules employees. The apparatus failed due to the presence of several gallons of water that had collected above the clapper of the valve. In accordance with instructions he had received from the home office of Automatic, Mott installed a new latch in the clapper of the valve. There was some difficulty in the installation of the new latch. In another test the system worked in seven seconds. Mott then reset the system and checked to see that it was free of water. This was the last contact anyone had with the valve prior to the accident. Various Hercules employees, however, drained the drip leg pipe and checked the gauges of the valve. On Hercules employee was charged with checking the system. In several tests of the system conducted by Hercules, it worked normally.

In September 1952, there was a minor fire in the dope house caused by a welding spark during repair work. At this time the automatic sprinkler system did not function; several sprinkler heads were manually broken by Hercules employees, and worked but were not near enough to the fire. Thereafter, unknown to the respondent, Hercules had installed a 'wet pipe' sprinkler system in the screen used to remove impurities from the 'dope' because this screen was covered and could not be reached by the dry pipe sprinkler system. This sprinkler system apparently operated on February 12, 1953, as there was little evidence of fire in the screen. After the screening operation, the dope fell into canvas covered boxes on wheels measuring 34 1/2 by 37 by 26 inches known as 'hods'.

Three types of dope were in the dope house on February 12, 1953: Vibrogel, which consists of 74.75 per cent sodium nitrate, 15.15 per cent wood pulp, 2.03 per cent starch, 5.05 per cent corn cob meal and 2.02 per cent ground limestone; three hods of Hercomite which consists of 85.20 per cent ammonium nitrate, 5.78 per cent sodium nitrate, 3.70 per cent wood pulp, 4.74 per cent apricot meal and .58 per cent ground limestone; and one hod of Herculite which consists of 34.24 per cent ammounium nitrate, 6.52 per cent sulphus, 6.52 per cent sawdust, 8.70 apricot meal 43.48 per cent sodium nitrate, and .54 per cent ground limestone. The hods of dope when filled remained in the dope house until they were transported to the 'mix house'. However, there is controverted evidence as to whether it was normal Hercules practice to let three or four hods of dope accumulate in the dope house. The nearest mix house was about 1,000 feet from the dope house. Vibrogel was being run through the screen to remove impurities when the fire broke out on February 12, 1953. About 50 employees responded to the siren which indicated that there was a fire in the dope house. The dope house exploded, killing 12 employees and wounding 22 others. Only the part of the building containing the dry pipe valve remained intact. The explosion creater was located at approximately the same spot on the other side of the room from the screen, where the filled hods of dope had been standing.

There is much conflicting evidence as to the possible causes of the explosion and fire; the condition of the dry pipe valve after the accident; the existence and duration of the fire before the explosion; whether the fire was a high flaming one sufficient to reach and fuse the sprinkler heads, or a burrowing penetrating fire within the oxygen supplying dope compounds; or a flash surface fire which would not open the sprinkler heads; or whether the sixty-eight sprinkler heads collected by Hercules after the accident had fused. The evidence also indicated that: there was no way of predicting what mass of the compounds would be critical enough to explode, or how soon a fused sprinkler head would open; that streams of water from the hoses may have a colling effect on sprinkler heads.

Hercules had no special fire-fighting employees. According to its customary practices the dope house area was a 'non-explosive' area which meant that in case of fire, all employees who could leave their work in other areas of the 2,800 acre plant were to come in response to the siren and help fight the fire. There is some evidence that the fire fighting activities of Hercules employees were voluntary. The general rules and regulations of Hercules, however, besides warning all employees that the occupation was hazardous, stated: 'Fire hose and other fire protection apparatus are for use only in case of fire; they must not be used for any other purpose without a written order from the office. ...