I concur in the view of the majority that the judgments appealed from cannot stand and must be reversed.
I dissent, however, from the reasons given for the reversal and also from the rendition of the judgments for defendant.
Of the clear opinion that the judgments should be reversed and the causes remanded for a retrial, freed from 'the errors that attended the former trial, I am, as briefly as possible,. stating the reasons for my opinion.
Appellants’ contentions
Appealing on an enormous record from judgments based on profuse, prolific, and sweeping findings, all of which, stemming from the basic conclusion of the district judge,1 taken together, give blanket support to all of plaintiffs’ contentions and reject all of those advanced by it, defendant below, appellant here bases its case for reversal on three broad propositions.
The first of these propositions is that the case made, taken at its best for plaintiffs, is not sufficient to fasten liability upon de*783fendant for the reason that what is complained of as a tort, for which the United States has made itself liable by statute, is not such, and, since the basis of the liability must be found in the statute, plaintiffs cannot recover.
In support of this fundamental theory, the appellant takes two positions. The first is the affirmative one, that the claims asserted are negatived by the act as they fall within specific exceptions from the reach of the statute, that is, they are claims based upon (1) “the exercise or performance or the failure to exercise or perform a discretionary function or duty”; or (2) “an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation”. The second is the negative one that the claims asserted are not brought within the affirmative requirements of the act that claims must be based upon (a) “respondeat superi- or arising from an identifiable employee’s negligent act or omission”; and (b) “an act or omission for which ‘a private individual under like circumstances’ would be liable.”
The second of appellant’s propositions is further subdivided into two. One of these is that, assuming that the case pleaded and sought to be made is one which, if made out, would entitle plaintiffs to recovery, the judgment was wrong and must be reversed and rendered, because: (a) the defendant had nothing to do with, and was in no way responsible for, the material after it had been loaded on the cars; (b) the evidence shows as a matter of law that the title and control of the material had passed from the defendant when the accident occurred; and (c) as matter of law no negligent act of an employee of the defendant is shown which would, if defendant were a private person, make him liable.
The other is that, if the judgments are not to be reversed and rendered, they must be reversed and remanded, because the findings convicting defendant’s employees are clearly erroneous. In support of this view, the appellant insists: that the force and effect of the testimony, considered as a whole is convincing that the findings are so against the great preponderance of the credible evidence that they do not reflect, or represent, the truth and right of the case. Sanders v. Leech, 5 Cir., 158 F.2d 486. Or, putting it as the Supreme Court has put it in United States v. U. S. Gypsum Co., 333 U.S. at page 395, 68 S.Ct. at page 542, “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
Appellant’s third proposition, which is, in treatment, necessarily intertwined with its second above, is that the method and manner of the trial including particularly the advocative violence of the committee, so infected the case with error that instead of having its liability vel non determined in the calm judical atmosphere of a trial, in which appellant was accorded its full procedural rights, and the members of the committee were held to those, to which they were entitled, this was determined in an atmosphere of bickering and contention and by the use of trial procedures which denied it a fair trial. It insists, in short, that the trial was permitted to go so out of bounds2 that the findings cannot be approved, the judgments cannot stand.
Appellees counter contention
Appellees take full issue with appellant on these propositions. On the first proposition, their position is that the terms of the statute and the decisions of the Supreme Court and of the Courts of Appeals, in effect declare that the liability of the United States, in connection with the fertilizer involved in this case, was, and is, properly measured by the liability controlling a private manufacturer of, what appellees say was, an inherently and imminently dangerous, and ultra hazardous, material and commodity.
Insisting that the statute in authorizing suit did not limit the right to sue except as precisely set out in the exceptions, ap-pellees particularly urge upon us that since the statutory exceptions do not specifically *784exclude liability as a manufacturer, appellant’s position on this point is without basis. Pointing to the broad terms of Sec. 2674, Title 28, “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances”, appellees insist: that the United States must be held liable in the case of manufactured articles as a private manufacturer would be; and that, since a manufacturer is held liable without fault for putting dangerous articles on the market, which cause injury, the United States must also be held liable without fault. In the alternative, they argue that if it is necessary to prove fault in the sense of negligence or wrong doing on the part of individuals, they have proven this by pointing out the derelictions of named persons in regard to the manufacture and shipping, the labelling for shipping, and the failure to advise persons who might come in contact with the fertilizer of its dangerous character. S.o insisting, they say that it is immaterial whether liability without fault is imposed here, as is imposed upon manufacturers of dangerous articles, or liability is imposed for negligence of particular persons.
When it comes to appellant’s second proposition, the state of the evidence, ap-pellees insist: that the evidence is all one way on the issue of negligence; that in fact negligence is established as a matter of law; and that there is no credible evidence to the contrary. They insist, therefore, that the question of errors in the conduct of the trial or in the making of the findings must be disregarded as completely harmless, since, under the evidence, a verdict for them was demanded as a matter of law.
In the alternative, they urge: that if the findings were not demanded as a matter of law, there was certainly ample evidence to support them; that it cannot be said that they were contrary to the truth and right of the case; and that this being so, they may not be set aside as clearly erroneous.
Upon appellant’s third proposition, the procedural points urged, they insist that in the main the district judge precisely followed prescribed procedure, and in the rulings that he made, or did not make, he committed no error. They urge further that if any error was committed, it was harmless since the district judge took the evidence with the case and, though he declined to rule when requested and later he ruled against appellant on many of its objections, he made it clear in his findings: that, in arriving at them, he did not attach any weight or importance to the evidence admitted or excluded by him over defendant’s objection, and that the judgment was based only upon evidence wholly unobject-ed to and undisputed, which fully supported his findings.
They insist, therefore, that the judgments must be affirmed, on the ground that, as a matter of law, the defendant was liable, as DuPont, or Lion Oil Co., or other manufacturers of fertiliser, would have been for putting out an inherently dangerous article, without taking adequate steps to prevent its becoming dangerous to persons who should come in contact with it, and without giving adequate warning of any dangers that might inhere in it.
Appellant’s reply
The appellant, while meeting all of these contentions head on, presses hardest upon us, as its primary point: that it was not intended by the statute to make the United States liable except in the special case of specific negligent conduct by specific agents in respect of matters not excluded by the exceptions; that the statute precisely excluded liability without fault, and limited the liability of the United States to cases of specific acts of negligence by specific employees.
Further insisting that the statute was not intended to introduce new and strange liabilities, such as the liability without fault of a manufacturer, and that the whole doctrine of manufacturer’s liability is wholly inapposite and inapplicable to the United States, as a tort feasor under the Act, appellant further argues that it cannot be said upon this record: that the evidence established its liability as matter of law; that it showed that the agents of the government charged with the manufacture and *785handling of the fertilizer knew, or were charged with knowledge, of its propensity to explode, and failed to take adequate precautions against, or warn people of, this propensity. They particularly insist: that this is a case of hindsight teaching foresight; that the district judge based his finding of liability for the Texas City explosion, which, when it occurred was a completely unlooked for, unprecedented and wholly unforeseeable occurrence, indeed a nine days’ wonder, not upon facts then known and understood, but upon experiments and investigations made afterwards, and upon the erroneous view that these experiments, and the testimony of witnesses who made them, were admission against interest of appellant.
Appellant points out: that it is fundamental law. that negligence must be proved and not presumed; that the standard is not insurance, but the exercise of due care; that the foreseeability required is not an absolute foreseeability, but the foreseeability of a reasonably prudent person.
So pointing, it insists that, except for the worked up tension and excitement in the case, because of the size of the explosion and the large amounts being sued for, the findings would not have been made; that, in short, had this been a small case of a small loss, no one would have found the defendant negligent for not knowing what nobody else knew until after the explosion and the Picatinny and other tests were made; and that the findings must be disregarded as clearly erroneous because contrary to the great weight and sense of the testimony taken as a whole.
Finally, it urges upon us that, if all the evidence that was admissible had been allowed to come in, and all that was inadmissible had been kept out, and the really admissible evidence supported the findings, the case was yet tried under such pressures and in such an atmosphere and the procedures adopted and carried out through the trial present so many errors, both of omission and commission, that the trial and the findings are deprived of effect, and defendant is entitled to have the issues, presented by the pleadings and the evidence, retried. Pointing out that this is especially necessary in this case when the result of so many suits were made to depend upon the decision of one trial, appellant insists that for this trial to stand, as the standard and measure of liability in all of these cases, is to work a complete perversion and denial of justice, and that if the case is not reversed and rendered^ there should certainly be a reversal and remand.
As a last resort, it complains of the fact that the court attempted to start interest running on all the claims by entering judgment settling liability on all of them before any adjudication on the amounts thereof had been had.
Approaching these claims and counterclaims from the small end of the telescope, I am of the clear opinion that appellant is right in its attack upon the judgments as providing for interest in violation of the statute before the amounts have been determined, and that to that extent the judgments should be reversed. I am also of the clear opinion that the judgments must be reversed for procedural errors inherent in the way and manner in which the case was tried.
Particularly erroneous and prejudicial were (1) the refusal of .the court to allow the government to take depositions because it would not turn over to the plaintiffs the F. B. I. records; (2) the admission of the Picatinny and other (arsenal tests and testimony as admissions against the interest of the government; and (3) the conduct of the trial generally with undue limitation of the procedural rights of the defendant and undue enlargement of the procedural rights of the plaintiffs.
The next step which the appellant urges us to take, to downrightly hold that, procedural errors aside, the findings are clearly erroneous, would not, if it were not. for the procedural points, be so easy to take. Because, however, of the way the case was tried, because, too, of the too sweeping nature of the findings and conclusions, I agree with the appellant that the findings are contrary to the truth and right of the case and clearly erroneous, and that the judgments should, therefore, be reversed and the cause remanded for trial anew.
*786When it comes to the final step which appellant urges us to take, to reverse and render because no recoverable claim was alleged, or, if alleged, as a matter of law none was proven, I find myself unable to take the step. It seems to me that a case against the government was pleaded and that if the trial had not been marred by errors of procedure in the reception and rejection of evidence and in other respects, there was evidence which, if believed, would have been sufficient to sustain a recovery.
Judge Rives has, in his opinion, put the case for the government, as to its non liability as matter of law, as well I think as it could be put, and, if I could agree with his primary position, I should agree with his conclusions. I find nothing, however, in the statute itself, nothing in any decided case, which, in my opinion, supports the application of the views advanced by him to facts of this kind. What was said in the Sickman case, 7 Cir., 184 F.2d 616, about discretion does not, in my opinion, carry the matter to the point Judge Rives’ opinion seems to me to carry it, that because of the discretionary character of the operation, the government would not be liable for negligence in the higher echelons ; and that if persons in these should direct the doing of something in its nature completely dangerous, there could be no responsibility in tort for what was done or not done in connection with it.
As I understand the reasoning it is that, since the matter was within the discretionary sphere, neither those who gave the orders, nor the government, would be responsible, and, therefore, neither those who carried out the orders exactly as given nor the government could be responsible.
I am in no doubt that the district judge erred in holding that the program was in its nature so dangerous that it constituted a public nuisance and its mere undertaking was wrongful. Neither am I in any that the appellees are wholly mistaken in claiming, as they do at page 195 of their brief, that the government can be held liable without fault for putting out an ultra hazardous material.
I find it very difficult though to understand how, under the precise language of the Tort Claims Act, liability can be escaped if it is made to appear that the act or omission of an employee of the government in the execution of a statute or regulation was not in the exercise of due care.
It seems to me that such decisions as we have rendered under the Tort Claims Act, St. Louis, etc. v. U. S., 5 Cir., 187 F.2d 925, and Costley v. U. S., 5 Cir., 181 F.2d 723, are contrary to this view. It seems to me, too, that all of the decisions of the Supreme Court and of the other federal courts, which I have read, are in favor of a broad construction of the act and against what seems to me the extremely narrow view invoked and applied 'here.
In the situation, then, in which I find myself, I am compelled to dissent from the opinion of the majority that no case was stated on the pleadings, and, as matter of law, none was made out. I think the contrary is true, and that a case was stated on the theory: that the product was ultra hazardous and dangerous; that this was known, or, in the exercise of due care, ought to 'have been known; that a reasonably prudent person, therefore, manufacturing and putting it out, as the United States was doing, ought to, and would have known its liability to explode and would have given more warning of that fact than was done here. I think too that if, on a retrial, the proof makes out the case alleged, the United States must be held liable as Hercules Powder Co. or DuPont Co., or any other private manufacturer would be, not for having undertaken to make FGAN, or even for making and shipping it as it did, but, if it did not, because it did not, give the warnings required of a reasonably prudent person to put people dealing with it on notice of its character and the dangers of dealing with it.
I am in no doubt, though, that, because of the procedural errors attending the trial, and because the sweeping findings and conclusions are, upon this record, clearly erroneous and cannot stand, all of the judgments must be reversed and the causes remanded for further and not inconsistent proceedings.
. “Record discloses blunders, mistakes, and acts of negligence, both of omission and commission, on the part of the defendant, its agents, servants, and employees, in deciding to begin the manufacture of this inherently dangerous Fertilizer.”; that by tbe manufacture of FGAN, the United States “was creating and maintaining a nuisance”, and that “each shipment of such Fertilizer was a dangerous public and private nuisance from the time it was manufactured.”
. Cf. Maryland Cas. Co. v. Reid, 5 Cir., 76 F.2d 30.