
    THOMAS BARRON v. THE UNITED STATES
    [Congressional No. 17870.
    Decided January 5, 1954]
    
      
      Mr. Robert T. Murphy for plaintiff.
    
      Mr. Arthur E. Fay, with whom was Mr. Assistant Attorney General Warren E. Burger, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

This case is before us under Senate Resolution 216, 82d Congress, 1st Session, referring to us the claim of Thomas Barron, for a report on whether or not the petitioner has a claim against the United States either legal or equitable, and, if so, the amount legally or equitably due.

His claim is for the loss of his tools and typewriter repair parts as the result of a fire on October 15, 1948, which destroyed one of the 1600-odd buildings at the Quonset Naval Air Station, near Providence, Rhode Island.

On July 16, 1948, plaintiff had entered into a contract with the defendant for the repair on the premises of approximately 900 typewriters owned by defendant at this station and on board Naval vessels berthed thereby, and for the overhauling and reconditioning at plaintiff’s shop of about 50 typewriters. The bulk of the work was to be performed on the premises.

In the course of the performance of his work plaintiff took his tools and parts back and forth in his automobile, but when he continued to encounter difficulty in getting by the guards on leaving the premises with these things in his car, the defendant furnished him space in the building which was later destroyed by fire, where he could leave his tools and parts and where he could also perform that part of the contract work which called for the overhauling and reconditioning of 50 typewriters at his shop. This arrangement seems to have been to the mutual advantage of the parties.

It can hardly be called an amendment of the contract, because the place where the work of overhauling was to be done was not of the essence of the contract. Defendant was interested only in the satisfactory performance of the work and not where it was done.

When the building was destroyed by fire plaintiff lost all of his tools and repair parts. The issue presented is whether or not the fire was the result of defendant’s negligence. Plaintiff, of course, was not a trespasser in the building, but was an invitee, or at least a licensee, and, hence, was due from defendant the exercise of ordinary care. If ordinary care was not exercised by defendant, it is legally liable to plaintiff, except for the lapse of time.

The fire was started by the flame from an acetylene torch being used to repair a tank in which the grease and oil on airplane engines had been cleaned off. This tank sat down below the level of the floor of the hangar and when being used to clean engines contained some sort of solvent for the removal of grease and oil. The engines were immersed in this solvent. The grease and oil removed from the engines settled to the bottom of the tank and ran off through a pipe to an outside submerged tank. Some of the oil and grease, however, of necessity remained in the tank.

The tank needed repair and one of defendant’s civilian employees, an assistant welder, was sent down into the tank with an acetylene torch to repair it. Beforehand, the tank had been cleaned to a certain extent by scraping off some of the remaining grease on the sides and bottom by hand, but, even so, there remained a certain amount of oil and grease, which emitted highly inflammable fumes. The whole surrounding area was a fire hazard, where smoking was prohibited.

The acetylene torch, of course, had an open flame and, hence, there was great danger that the fumes from the oil and grease might be ignited by the flame and a fire started. The assistant welder did not like the idea of going down into the tank. To use his words, “There was a big sign over my head that said ‘No smoking,’ and there I was, welding ; and so I said, I didn’t like the idea.” He requested that a trained fireman be placed as a special guard at the tank while the work was being done, but was informed that no fireman was available. They did, however, place a civilian metalsmith as a guard at the edge of the tank equipped with a 15-pound Co-2 fire extinguisher, and the assistant welder was furnished with a similar fire extinguisher.

The assistant welder cut two holes and was cutting a third one in the tank when a fire broke out. He emptied his fire extinguisher on the fire, and the guard did likewise, but the flames spread. The workmen undertook to cut off the blower provided to take fumes out of the building, but the switch to this blower was out of reach and it could not be cut off. It produced a draft, which fanned the flames, and the fire quickly got out of control, and the building was completely destroyed, and with it plaintiff’s tools and parts.

There was maintained at the base a fire department with ordinary fire department equipment. The chief of this department had offered his services to the overhaul and repair department, where this tank was located, but his services had never been utilized and, as stated, no fireman was requested as a guard over this particular work. Not only that, but for some unexplained reason, considerable time elapsed after the fire started before the Fire Department was called. However, the Fire Chief testified that the precautions taken at the time this work was being done were the customary precautions being taken at that time. Since then much stricter precautions are required, and, indeed, no work of this character is allowed without a permit from the Fire Department.

The Fire Chief testified in this case that this fire could have been avoided by the taking of proper precautions. There is no doubt in our minds that this is true, and we have found it as a fact. It seems to us to have been almost foolhardy to have sent a man down with an open flame in an area filled with fumes from oil and grease, with only these two fire extinguishers available. The work had to be done, of course, but. such precautions should have been taken as would have prevented a fire, if started, from getting out of control, and the proof is that adequate precautions could have been taken, and, indeed, today are being taken.

We think the defendant was negligent and should pay plaintiff whatever damages he may have been able to prove.

It is true plaintiff could probably have maintained an action in the District Court under the Tort Claims Act passed August 2, 1946, but he allowed the statute of limitations to run against him. He is hardly to be blamed for this, however, since the statute was new and was not commonly known. His failure to bring such an action should not prejudice him now.

The principal difficulty in the case is the amount of plaintiff’s damage.

The Commissioner has found that it is reasonable to conclude from the evidence introduced that the value of his tools, equipment and parts lost in the fire was $1,969.79. Plaintiff claims $5,286.93. He has no records to support this because his records were destroyed in the fire, which was not his fault, and for which he should not be prejudiced. The amount claimed is an estimate. It is made up from his recollection of the tools and parts which he had in his shop, supported by the recollection of two of his employees, one of whom was his brother. The valuation of the tools and parts was on the basis of the prices therefor listed in a catalogue of a reputable supplier.

We think his estimate is too high. On his income tax return plaintiff claimed only $210 for the loss of his tools. The balance of the $5,286.93, would, therefore, have to consist of parts lost. However, in the years-1948 and 1949 plaintiff spent a total of only $1,875.82 for parts. He did not necessarily replace in the following 14 months all of the lost parts, but the replacement of only $1,875.82 worth is some indication that plaintiff’s valuation of the parts lost was too high. The amount spent for replacement is about one-third of what he claims. We think that an allowance to plaintiff of $3,000 would be enough to cover his loss.

Our conclusion is that plaintiff is justly and equitably entitled to $3,000 for the loss he sustained. There is no legal liability, due to the running of the statute of limitations.

MaddeN, Judge; Littletost, Judge; and JoNes, Chief Judge, concur.

EINDINGS OF FACT

The Court having considered the evidence, the report of Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:

1. The petition is before the Court pursuant to the following Senate Resolution 216, 82d Congress, 1st Session:

BesoVoed, That the bill (S. 1051) for the relief of Thomas Barron, now pending in the Senate, together with all the accompanying papers, is hereby referred to the Court of Claims; and the court shall proceed with the same in accordance with the provisions of sections 1492 and 2509 of title 28 of the United States Code and report to the Senate, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand as a claim, legal or equitable, against the United States and the amount, if any, legally or equitably due from the United States to the claimant.

2. Plaintiff is a United States citizen and a resident of Rhode Island, where he was engaged in business as the Barron Typewriter Service Company at all times material to this action. He had been engaged in the typewriter repair and service business since 1932, operating from his home and a commercial location in Providence, Rhode Island, until his entry into the Armed Services in April 1942.

3. In December 1945, following his discharge from the Armed Services, plaintiff became a civilian employee of the Navy Department at the Quonset Naval Air Station, Rhode Island (hereinafter referred to as the “Station”), until July 1947 as a typewriter repairman.

4. In July 1947, plaintiff contracted privately with the Navy to repair, maintain and service all typewriters at the Station, as well as those on ships which berthed there.

5. On July 16, 1948, plaintiff entered into contract N298s-2961 with defendant for the on-the-premises servicing, maintenance and repair of approximately 900 typewriters owned by defendant and located at the Station and aboard naval vessels berthed there regularly, and for the overhaul or reconditioning of about 50 typewriters which would be removed to plaintiff’s workshop at his Providence home. The bulk of the work was performed on the premises of the Station. Plaintiff worked exclusively for defendant under both the 1947 and 1948 contracts and devoted full time and attention to' the performance of his duties thereunder.

6. Plaintiff customarily commuted from Providence to the Station each day in his automobile in which he carried necessary tools, parts, and equipment. Under security rules in force at the Station he experienced difficulty in getting clearance for his daily departures from the Station.

7. About July 1947 plaintiff discussed the security clearance difficulties with certain personnel at the Station and, at the direction of the production officer of the Overhaul and Repair Department, he was orally assigned without cost a room at the Station for use as a workshop located off the balcony in the Engine Cleaning and Repair Division of the Overhaul and Repair Department. The lock was changed on the door and plaintiff was given a key. He was supplied furniture for the room. These arrangements were made by Station personnel who were not acting for the contracting officer, and who were not authorized to alter or amend the written contract.

8. The Station accommodations furnished plaintiff were for the mutual convenience of plaintiff and defendant. It convenienced plaintiff by eliminating difficulty in security clearances on Station departures and in hauling his tools and equipment back and forth from Providence to the Station, but did not save him travel time or expense. It was a convenience to defendant to have all the work performed on the Station, but did not effect a contract saving for defendant.

9. Plaintiff moved into the Station workshop all of the tools, parts, and equipment which he had at his home in Providence, and which represented an accumulation of increments over the years since 1932, and thereafter performed all phases of his contract duties on the Station. He occupied the assigned space continuously until October 15, 1948.

10. Plaintiff’s contract was never formally changed to confirm or sanction his use of the assigned space on the Station.

11. On October 15, 1948, the hangar building occupied by the Overhaul and Repair Department, in which plaintiff’s workshop was located and in which 500 to 800 persons were working, was completely destroyed by a fire originating in the degreasing area of the engine cleaning shop and caused by hot metal from an acetylene torch. The fire occurred under circumstances over which plaintiff had no control. Plaintiff’s tools, equipment, and parts were completely destroyed.

12. The hangar building which was destroyed constituted a fire risk at the time because of the nature of its construction, lack of fire walls and sprinkler system, and failure in certain respects of responsible personnel to take proper precautions to prevent fires in view of the character of operations carried on in the building.

13. Fire regulations in force on the Station at the time of the fire required strict enforcement of the rule directing “No Smoking” signs to be posted in all locations constituting unusual fire hazards. The engine cleaning shop in which the fire originated was posted as a “No Smoking” area. This shop, was used for the degreasing or cleaning of airplane engines, which was accomplished by lowering the engine into metal tanks filled with solvents. The tanks were set in grease pits with their top parts protruding above the floor for two or three feet. A floor-level metal grating surrounded the tank, covering the pit between the tank circumference and the surrounding floor surfaces, thus providing a platform for the workmen and ventilation for the pit. Drippings from engines as they were being cleaned were continuously drained through the pit into tanks connected from outside the building by subterranean drains.

14. On October 15, 1948, immediately prior to the fire, a civilian metalsmith’s helper employed by the Station was ordered to repair one of the degreasing tanks. The job required the use of an acetylene torch to burn holes through the tank walls from the inside to the outside. The helper was conscious of the fire hazard and was reluctant to undertake the assignment because of the dirty condition of the pit and the fumes present. He requested that a trained fireman be assigned from the Station Fire Department to act as special fire guard while the operation was performed, but was told by his superior that a fireman was not available. He proceeded with the operation armed with a type of fire extinguisher known as a 15-pound Co-2 bottle, and a similarly equipped civilian metalsmith was standing guard at the edge of the tank. At the time a standby fire watch with the proper sort of extinguisher was the ordinary precaution which was being taken when this type of repair work was being done. After the fire, much greater precautions were taken. By the taking of proper precautions this fire could have been avoided.

The degreasing tank, because of its size and numerous pipe connections for water, steam, and the like, is not readily removable from the pit and minor repairs normally are made without such removal. Such repairs require the taking of a known risk in areas denominated as a “No Smoking” area.

15. Although at the time there was no formal written regulation which would have required the Station Fire Department to have been called in for safety advice prior to commencement of the operation described in Finding 14, reasonable care required it would have been an advisable safety procedure. In 1952 any welding, burning or cutting job on the Station required a Station Fire Department permit. Prior to October 15,1948, the Station Fire Department had offered its advisory services to the Overhaul and Kepair Department, but they had not been accepted.

16. A Naval Court of Inquiry investigated the circumstances of the fire. The evidence does not disclose whether or not the proceedings of said Court of Inquiry were eso parte in nature, but the Court found:

(a) Advance knowledge had not been given the Engine Overhaul Division Officer of the intended repair work on the degreaser that was performed on October 15,1948.

(b) No opinion or advice as to safety of the operation was requested of the Fire Department, the Station Safety Engineer, or the Overhaul and Repair Department Safety Inspector prior to the burning operation on the degreasing unit, nor were any of these persons notified that the burning operation was to commence.

(c) Responsible officials in charge of the Overhaul and Repair Department had failed to comply with official instructions requiring personnel to be acquainted with the inflammable characteristics of engine-cleaning solvents.

(d) In the course of its monthly inspections the Station Fire Department had not been informed of the inflammable qualities of materials used in the engine cleaning shop.

(e) During the year prior to October 15, 1948, there had been 16 minor fires reported in the Overhaul and Repair Department, but none of them was caused by welding or burning operations and none of them occurred in the degreasing tanks. Periodic tests for presence of inflammable gases in the drainage pits during the two-year period preceding October 15, 1948, produced negative results.

17. On October 15, 1948, the date of the fire, the metal-smith’s helper had cut two holes through the tank with his acetylene torch without igniting a fire. Upon cutting the third hole, the fire watch warned the metalsmith’s helper that a fire had started. The fire watch and the metalsmith’s helper emptied their Co-2 bottles on the blaze. However, blowers used to take fumes out of the building could not be shut off, and the blaze gained headway. The fire was in progress for a considerable period of time before the Station Fire Department was called. The entire hangar building was subsequently razed by the fire and plaintiff’s tools and parts were consequently destroyed.

DAMAGES

18. Plaintiff filed a claim with the Navy Department for loss of parts, tools, and equipment in the amount of $5,286.93. He did not keep or make inventories of his parts and ordered small quantities from time to time when his stock appeared low. His purchases were made at retail prices. The original purchase records or invoices plaintiff received from his suppliers were destroyed in the fire. Plaintiff made no effort to procure records of his purchases from his suppliers for purposes of this action. His purchases were paid for in cash and not by check, and the suppliers did not always make out sales slips. Some of the parts destroyed plaintiff had accumulated as early as 1932, for which he figured replacement value on 1948 prices.

19. Plaintiff arrived at valuations assigned to items in the claim by reference to a parts catalogue. His list of parts destroyed was an estimate based on his own recollection and that of his assistant without reference to written data.

20. Plaintiff’s income tax returns show that the depreciated value of the tools lost in the fire was $210. No losses were claimed for parts and supplies. The returns further show that plaintiff purchased $680.94 worth of parts in 1948 and $1,194.88 worth of parts in 1949. Plaintiff continued with his repairing contract without interruption immediately after the fire.

21. From a consideration of all the evidence, it is reasonable to conclude that the value of the tools, equipment and parts lost by the plaintiff in the fire was $3,000.

22. Plaintiff’s claim filed with the Navy Department was transmitted to the General Accounting Office for direct settlement on November 16, 1950. On January 23, 1951, the General Accounting Office, by Certificate of Settlement No. Z376619(l), disallowed plaintiff’s claim in its entirety. 
      
      
         “When the steede Is stolne, shut the stable durre.” The French proverb reads: “Quant le cheval est emblé dounke ferme fols Testable.” Translated Into English this means: “When the horse has been stolen, the fool shuts the stable.”
     