The opinion of the court was delivered by: VANARTSDALEN
Vanartsdalen, District Judge.
The plaintiff filed suit under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq. (1965), alleging numerous theories as the basis for the cause of action. In May of 1971 this Court denied the defendant's motion for summary judgment holding that the facts as alleged by the plaintiff could establish a cause of action. Toppi v. United States, 327 F. Supp. 1277 (E.D. Pa. 1971). The case was tried without a jury on the question of liability. The testimony was conflicting on practically every point except the fact that plaintiff was injured by an explosion while in the process of disposing of certain pyrotechnical chemicals. Emphasizing the requirement that the plaintiff prove his case by a preponderance of the evidence, I make the following findings of fact.
1. Plaintiff was, on April 23, 1965, a safety engineer for Thiokol Chemical Corporation (Thiokol) at its plant in Bristol, Pennsylvania. He had approximately thirteen years' experience in industrial safety, of which the last three and a half months had been as a Thiokol employee. His total experience in handling and destroying explosives consisted of "learning explosives" on his job at Thiokol for about a month and a half prior to April 23, 1965.
2. Max Stuckey was plaintiff's direct and immediate supervisor, and in charge of overall safety at the Bristol plant. On the Monday preceding April 23, 1965, Mr. Stuckey telephoned to plaintiff from Elkton, Maryland. From that conversation, Mr. Stuckey ascertained the limited experience that plaintiff had with explosives, and as a result expressly directed plaintiff to do nothing with any explosives until he, Mr. Stuckey, could personally talk with plaintiff. Mr. Stuckey never countermanded his instructions to plaintiff.
3. Subsequent to the telephone conversation between plaintiff and Mr. Stuckey, one of the production supervisors, Mr. Hearne, requested plaintiff to dispose of pyrotechnical chemicals on April 23, 1965, by a burning process to be conducted in an open "burning field" on Thiokol premises.
4. The chemicals to be disposed of consisted of B-73, Boron and Tetryl. B-73 was light charcoal gray in color, metallic in texture, and in particles approximately one-fourth of an inch by one-eighth of an inch. The tetryl, which was far more explosive than B-73, was mixed with graphite and formed into particles that were circular in shape approximately two and a half inches in diameter by one-half inch in thickness, thereby having a different physical appearance from B-73. In color the tetryl mixed with graphite was almost black.
5. Plaintiff because of his lack of experience and fully recognizing the dangerously explosive propensities of the materials to be destroyed, was apprehensive about conducting the burning process without the assistance of someone more adequately experienced. Nevertheless, on April 23, 1965, plaintiff, along with William Schmidheiser, an employee of the production department of Thiokol, proceeded to the burning field to dispose of the materials.
6. Plaintiff and Mr. Schmidheiser proceeded to dispose of the materials by burning on the corporate burning site. One train of material was laid out, ignited and burned without incident. (A train consisted of spreading the material to be burned in a thin line on the field.) While a second train was being laid by both Schmidheiser and plaintiff, the train caught fire and proceeded to the point where plaintiff was laying the train where it exploded causing plaintiff serious personal injuries. The material that exploded was tetryl that was mistakenly either being laid in the train or left in the immediate vicinity.
8. The tetryl was not defective at any time, although it may have been mixed with B-73 by Thiokol employees. Its highly explosive propensities were known and fully appreciated by both Thiokol and plaintiff.
9. Thiokol was a subcontractor of Maxson Electronics Corporation, which latter corporation held a government contract to make certain pyrotechnical boosters. The government inspector, Edward B. Austin, was assigned to the Thiokol plant in Bristol, Pennsylvania, for the purpose of "setting up a quality system" in order to verify that the subcontractor, Thiokol, was meeting all of the requirements and specifications of the product it was manufacturing, which consisted of "end-item verification and shipment." As the government inspector, Mr. Austin had no control, supervision, or training responsibilities as to Thiokol or its employees. He had no responsibility to conduct or observe the destruction of any of the chemicals at the burning site, and he never promised, requested, nor actually undertook to conduct or observe the disposal of tetryl for either his governmental supervisors, Thiokol or any of its employees.
Serious conflicts in testimony left many factual issues in serious contention. The plaintiff initially claimed that the government remained the owner of the tetryl, that it was classified as government supplied material, and that as such could not be destroyed unless a government inspector was present for so doing. The plaintiff, however, in his proposed conclusions of law has now requested this Court to find that the tetryl that was burned by the plaintiff on April 23, 1965, was purchased by Thiokol from the United States; that title thereby passed to Thiokol and that the United States reserved no interest in or control over it after the passage of title. The Court agrees that this is the appropriate finding.
It was shown by careful documentation that the tetryl was purchased for cash from the government, and shipped from government warehouses in Crane, Indiana, to the Bristol plant of Thiokol. Since the government had no interest in the tetryl as such after its shipment, any excess tetryl could be destroyed by Thiokol or used in any lawful way without government consent or supervision.
At trial the present major thrust of plaintiff's position was that he had telephoned to the government inspectors at Thiokol, seeking advise and assistance in destroying the tetryl, and had been misled by the information received. Since the fact finder has not found that the telephone call was made, some detail of the testimony is appropriate. Plaintiff testified that after he was advised by the production department of Thiokol that Boron, B-73 and tetryl were scheduled for destruction, he telephoned Ed Austin's office (the government inspector at Thiokol), because he knew Mr. Austin had the expertise to assist him. Plaintiff stated on direct examination that "I called and I asked for Ed Austin and Ed Austin wasn't there. And I spoke with Curt Prevost." (T.R. 28). According to plaintiff he told Mr. Prevost that he, plaintiff, was assigned to destroy B-73 and tetryl, that he was going alone and that he ...