Rooney v. Nuta, 17302.

• Decision Date: 05 June 1959
• Docket Number: No. 17302.,17302.
• Citation: 1960 AMC 1246,267 F.2d 142
• Parties: Frank J. ROONEY, Appellant, v. Louis NUTA et al., Claimants, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

1960 AMC 1246, 267 F.2d 142 (1959)

Frank J. ROONEY, Appellant, v. Louis NUTA et al., Claimants, Appellees.

No. 17302.

United States Court of Appeals Fifth Circuit.

June 5, 1959.

Cromwell A. Anderson, Douglas D. Batchelor, Smathers, Thompson & Dyer, Miami, Fla., for appellant.

Ray M. Watson, C. Carey Matthews, Leonard P. Cardone, David Goldman, Miami, Fla., Leonard C. Kessler, Miami, Beach, Fla., Lucille Hellman, Matthews & Quinton, Miami, Fla., for appellees.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

The question presented by this appeal is whether the record contains evidence sufficient to support the finding of the lower court, sitting without jury, that appellant Rooney was not entitled to limitation of liability or to exoneration as prayed for in his petition filed under 46 U.S.C.A. § 181, et seq. Appellant was the owner of the yacht "Ronar", which burned in the early morning of January 16, 1957 while docked at Nuta's Yacht Basin, Miami, Florida, when fire broke out aboard it causing damage, not only to the yacht, but to Nuta's Basin and to certain vessels situated in the vicinity. The trial court entered its findings of fact¹ and concluded that the statutes providing for limitation of liability and exoneration did not apply² and entered a final decree for the total sum of $33,220.14 in favor of Louis Nuta, owner of Nuta's Yacht Basin, and eight other claimants who owned vessels docked nearby.

Upon the general ground that the findings of the trial court were not supported by sufficient legal evidence to sustain its judgment, appellant appeals praying that we examine the evidence and render judgment in his favor. A careful reading of the evidence and consideration of the applicable law convinces us that the appellant's position is well taken. The facts, as such, are really not in dispute; and under established legal principles we think that, at most, they give rise to speculation and conjecture that the fire upon Rooney's yacht "could" have been caused by his negligence. But they do not justify an inference of the stable and dependable quality necessary to support a conclusion upon which a judgment can be founded.

Appellant had acquired the Ronar early in 1956 and used it for some time, and had put it in dry storage at Miami Shipbuilding Corporation in August, 1956. As found by the court below, in December following, he "ordered the Miami Shipbuilding Corporation to survey the vessel, check its condition, and put the vessel in order, and return it to the water. Captain William Lancaster, an experienced captain, was hired by petitioner as master of the yacht." Rooney did not see the yacht from November 1956 until the time of the fire. He had been advised that, before he purchased the vessel, there had been a short circuit in the wiring.³

The general manager of Miami Shipbuilding Corporation testified along with several of its employees. There is no real dispute between appellant and them as to appellant's statement that he, being a building contractor and not well versed in the care and maintenance of boats, had instructed Miami, a reputable concern which built and repaired vessels, to do everything necessary to put the Ronar in proper and safe condition. The bill rendered by Miami to Rooney and paid by him reduced to specific terms what was ordered and what was done in connection with the electrical wiring.⁴

After Miami had completed most of the work the vessel was returned to the water and moved under its own power to Nuta's Yacht Basin so that the captain could have it under cover to do some painting. While it was there, Miami sent several of its employees to complete the repairs it had been ordered to make.

The court below based its holding of negligence on appellant's part on the previous "fire in the electrical system" and upon the difficulty which was experienced in keeping the batteries charged. The court stated that, "There was testimony that this indicated a short circuit somewhere in the electrical system." Based upon these findings it concluded that the fire began in the salon of the vessel and "Although there are many theories as to the cause of the fire, the court finds that the fire was caused by defective wiring of the vessel. And that The petitioner and his agent, Captain Lancaster, were negligent in failing to maintain the wiring of the vessel in a safe condition, and such negligence was the proximate cause of the injury to claimants herein."

A close examination of the evidence touching these findings and conclusions of the court will demonstrate that the proof was not of such character as to justify the inference of negligence made by the court. It was undisputed that Miami was advised by appellant and his close friend Howcroft who assisted in preparing the Ronar for use, that some wires had shorted in the engineroom — where the fire did not start — and that the wiring which had been taped temporarily was replaced and a proper junction box installed, and that whatever danger may have been occasioned by this wiring defect had been completely remedied.

The evidence contains intimations, chiefly in questions asked on cross-examination by claimants' attorneys, that possibly Chris Craft, the manufacturer of the Ronar had not, under its general practices, installed in the Ronar wire of the best kind for vessels, but there was no tangible proof of this. Liability in such matters arises, not from failure to attain perfection, but from failure to observe reasonable care. Here the evidence was undisputed that any deteriorated wire was replaced with proper new wire.⁵

The proof which came nearest to furnishing a basis for the court's finding of negligence related to the batteries and their tendency to lose their charge. The quotation from Miami's bill, footnote 4 supra, coupled with the testimony of its manager and the appellant, shows that it was instructed to check the batteries and the wiring and make the installations necessary to put them in proper shape, and that this was done. The only evidence of battery trouble was given by Captain Lancaster.⁶ He testified that the batteries were placed upon charge during the hours he was on the craft, and disconnected when he departed each afternoon. When he would return in the morning some of the batteries would be run down. It was his opinion that the failure of the batteries to hold the charge placed in them was attributable to their age.⁷ He further testified that during the two to five days he had been charging the batteries, he was experimenting to see if they were usable since new batteries would run high in cost. The Captain testified upon cross-examination that the tendency of the batteries to lose their charge "could" be indicative of bad wiring.⁸

The claimants attempted to use the testimony of Captain Lancaster concerning the batteries as the basis for hypotetical questions in an attempt to prove that this experience with the batteries was sufficient to put appellant on notice that a probably unsafe condition was indicated. Three expert witnesses were used, Hays, a marine consultant, Davis, Fire Marshal of Miami, and Hainlin, a mechanical and electrical engineer. Hays was askd no question about the condition of the batteries and gave no opinion as to what, if any, connection they might have had with the fire.

Davis gave no direct testimony concerning any causal relationship the batteries might have had with the fire. After several hypothetical questions had been phrased and objected to, he was asked a question calling upon him to give his opinion of the cause of the fire to which he responded: "* * * my assumption would have to be that it was from some electrical cause.⁹ Hainlin was queried by hypothetical questions concerning the batteries including the statement that they discharged themselves during the nighttime for five successive nights and was asked: "Q. Could this cause a fire in the circuit?" And he answered: "It likely could, yes."¹⁰

That is the closest approach to an answer upon which the finding of the court that the fire resulted from a defect in the electrical system could be based, and we do not think that this answer, together with the others quoted, was sufficient in law to constitute a legal basis for the finding. The evidence relied upon established nothing more than a possibility that the recurring discharge of the batteries was caused by a short circuit in the wiring of the vessel. It is not sufficient that the finder of facts is warranted in concluding that the alleged negligent condition could possibly have caused the damage claimed. It is necessary that the proof go further and establish the conclusion as a reasonable probability. Theriot v. Mercer, 5 Cir., 1959, 262 F.2d 754; Deitz v. Greyhound Corporation, 5 Cir., 1956, 234 F.2d 327; Geigy Chemical Corp. v. Allen, 5 Cir., 1955, 224 F.2d 110, and Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 443, 446, where we stated: "The requirement is for probative facts capable of supporting, with reason, the conclusion expressed in the verdict."

As against this unsatisfactory evidence the record contains the testimony of McClaskey, a marine surveyor, Jones, an independent marine surveyor, Tryon, fire inspector for the City of Miami Fire Prevention Bureau, and Goeriz, a special agent for the National Board of Fire Underwriters, all men of extended experience who, along with certain officials of the City of Miami, made a study lasting several days of the remains of the fire aboard the Ronar and were unable to find any condition which could have contributed to the starting of the fire. In addition to their inspection they conferred with the captain and other persons having knowledge of what had been done aboard the Ronar during the days preceding the fire. The witness Jones, based doubtless upon his finding the salon lock in unlocked position, concluded that the fire was of "incendiary nature." Each of them rejected the...