Marvin R. Ray v. United States

BROWN, Circuit Judge

(dissenting).

Ray received devastating injuries for which, under Georgia law, a Georgia landlord would have been liable. A liability of the Government under the Tort Claims Act is deniéd, not because a landlord similarly situated would have been free from liability, but on the perfectly astounding doctrine that since an employee of a Georgia landlord would not have been liable to a third person (Ray) for failure properly to maintain the premises, the Government goes scot free. This is but a variation on its favorite theme, in major and minor key, that the simple words of the statute imposing liability, “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, are to be read as though liability is based upon respondeat superior only. Consequently, it is urged there is no landlord’s liability against the United States since this is “special” in nature (i. e., not based on respondeat superior) and does not exist even though based upon traditional notions of due care.1

It is plainly evident that the majority, deferring decision “at this time” does not profess to apply such standard. But since, in the final analysis, their affirmance rests altogether on the acceptance of the trial court’s findings under the “clearly erroneous” concept of Rule 52(a), Fed.Rules Civ.Proc. 28 U.S.C., this is the inevitable consequence of the decision. If, therefore, the trial judge reached his conclusion laboring under a misapprehension of the applicable standard,2 the case, as a minimum, requires a re-examination by him of the evidence uninfected by such findings. Fact findings made in an atmosphere of niggardly non-liability cannot form the basis either for an acceptance of them, as such, or affirmance of the case on the implied acceptance of them through the medium .of a critical, logical analysis so characteristic of Judge Tuttle’s opinions.

This analysis then has two facets: (1) Is it probable that the trial judge came under the spell of these contentions, and (2) is there any basis for them?

In this analysis we must sharply distinguish between the appeal these contentions hold for us and the impressions *583likely created on the mind of a trial judge as careful and responsible as Judge Sloan. Inhibited only by authoritative precedents of the Supreme Court, we are free to pick and choose, accept and reject as we seek to fashion for this Circuit the guide in the construction of this Act. Indeed, we do it here — the majority by postponing, the dissent by a precipitous protest. But a conscientious district judge, appreciative of his position in the federal judicial scheme, enjoys no such freedom. He is overpowered not alone by specific holdings having the quality of stare decisis, but as much by the pronouncements in the Court’s opinions where, in context, even though obiter, it seems quite convincing that the statement reflects an articulate policy, point of view or principle adopted by this Court. If our pronouncement is plain and quite positive, he will, whether he is legally obliged to or not,3 bow to the declaration. It is not open for him to reject it as unessential, obiter, or the like.

In this atmosphere it is little wonder that Judge Sloan felt overwhelmed by the respondeat superior dogma. First, there is the general declaration by Chief Judge Hutcheson whose authorship, to bench and bar of this Circuit, gives added prestige, United States v. Campbell,4 5 Cir., 172 F.2d 500, 503, certiorari denied 337 U.S. 957, 69 S.Ct. 1532, 93 L.Ed. 1757:

“The whole structure and content of the Federal Tort Claims Act makes it crystal clear that in enacting it and thus subjecting the Government to suit in tort, the Congress was undertaking with the greatest precision to measure and limit the liability of the Government, under the doctrine of respon-deat superior * *

But before the time Judge Sloan decided this case, Judge Holmes, for a unanimous court, in Goodwill Industries of El Paso v. United States, 5 Cir., 218 F.2d 270, 272, relieved the district judges of the necessity or difficulty of determining liability in six categorical situations.5 Judge Holmes’s category (d) was our situation: If, under local (Georgia) law, *584the employee responsible for maintenance for the landlord could not be held liable, the Government would thereby be excused. ■

In the face of that deliverance by this Court, Judge Sloan was compelled to reject entirely the concept of liability based upon the Georgia Landlord Code Section if, as argued there and here, the Georgia law allows no recovery by the injured third person against the landlord’s employee.6 In that setting the argument, here and there, on the- basis of our decision- in Knight v. Atlantic Coast Line Railroad Company,7 5 Cir., 73 F.2d 76, 99 A.L.R. 405, had particular relevance holding, as it did, that the employee of a Georgia landlord (property owner) is not liable to a third party for the consequences of his nonfeasance.

• While the-judge was required to take this law as he found it in Our various expressions, the standards thus supplied to him were erroneous. ■ The fact is- that there is no basis in -the Act for the contention either that liability is wholly respondeat superior, or that there cari be no liability against the Government unless one or more individuals can be found against whom the local law would allow recovery. The contention, in short, is but another one of those ingenious, artificial impediments to the clearly expressed Congressional will to impose liability, “in the same manner and to the same extent as [on] a private individual under like circumstances, * * * ” 28 U.S.C. § 2674. That is language which could not be improved upon either from the standpoint of its simplicity or its scope. It was 'to announce that, except for those statutory exceptions, 28 U.S.C. § 2680, and those read into the law in the light of its purpose's forbidding imposition of absolute liability without fault, the United States should become responsible to its citizens urider all situations where private individuals would have an obligation. Read in this way, the obligation of the Government is measured by blending8 § 1346(b) with § 2674. § 13.46 (b) allows recovery for money damages for losses, “caused by the negligent or wrongful act or omission of any employee of the Government * * * where the United States [not the em*585ployee], if a private person, would be liable * * * in accordance with the law of the place * * If the Government can be so easily excused because the breach of the duty was one owing to it, rather than to the third person, the reference to “act or omission” is largely superfluous. There is nothing in the legislative history to suggest that the Congress intended to engage in hair splitting refinements on the nature of the breach of duty or the precise person to whom the obligation of due care and proper performance of duty was owed. If an employee of the Government is obliged under the responsibilities of his position, whether he is a driver of a mail truck, a mechanic in the Government garage, a maintenance employee responsible for the upkeep of an elevator in a Post Office Building, he has an obligation properly to perform his job for his employer. A failure to carry it out is certainly an omission and a wrongful one. Moreover, it is a negligent one since it is a breach of a duty imposed by law.

The history of this Act carries the overpowering conviction that Congress recognized that in the operation of the United States Government, the world’s largest single employer, engaged in far-flung industrial and business enterprises, with activity in a complex world, injury and damage was bound to occur. Society, Government, had therefore to protect its citizens against the consequence of that activity and, at the same time, free itself of the difficult task of achieving amelioration by sovereign grace through legislative procedures ill adapted to quasi adjudication.9 Dalehite v. United States, supra, 346 U.S. 24, 25, 73 S.Ct. 962, 97 L.Ed. 1427. Many courts have rejected this parasitical appendage 10 and application of the rule produces such absurd11 results that Con*586gress, with the dual hope of relief to the citizen and to itself, could hardly have legislated in such a technical vein unless, contradicting the compassion of its entire approach, it proposed the return to the ancient forms with all of their very nice, and to them and to their day, vital distinctions. Moreover, landlord, property owner, liability on the concept of due care is recognized and applied as such12 under the Tort Claims Act.

Misled by these pronouncements into the application of erroneous standards, the mistake was more than academic. Had the trial court felt really free to weigh it in the light of the Georgia landlord obligation, there was an abundance of evidence which would meet the terms of the Georgia Code itself and the Ocean Steamship Company principle of knowledge of the defect and reasonable opportunity to repair or maintain. The court did not find the contrary13 and since what he did find came about as a result of the application of wrong standards, it is not for this court, in the first in*587stance to make the findings unimpeded by the erroneous guide.

It is here, of course, that the Georgia law again applies which imposes upon one dealing with and responsible for the use and transmission of electricity the heavy obligation of extreme care comparable to one handling inherently dangerous articles. City of Sandersville v. Moye, 25 Ga.App. 64, 67, 68, 102 S.E. 552; Georgia Power Co. v. Stonecypher, 47 Ga.App. 386, 389, 170 S.E. 530; Southern Bell Telephone & Telegraph Co. v. Davis, 12 Ga.App. 28, 37, 76 S.E. 786; Eining v. Georgia Ry. & Electric Co., 133 Ga. 458, 461, 66 S.E. 237; Womack v. Central Georgia Gas Co.,14 85 Ga.App. 799, 803, 70 S.E.2d 398, 403; Georgia Power Co. v. Leonard, 187 Ga. 608, 613, 1 S.E.2d 579, 582.15

This makes pertinent indeed the un-contradicted testimony that upon the installation of the electrical system substantial defects were found both in the potential heads and in at least two splices of the type involved in this explosion, with no indication that any tests were made to determine the fitness of splices other than those two, followed by at least two identifiable explosions which were substantially similar to the occurrence of 1951. The Government made the curious defense, absorbed by the trial "judge under the guile of its specious respondent superior contention, and acquiesced in by the majority here under the compunction of the “clearly erroneous” rule that since this splice had not failed before, in exploding had obliterated all evidences of its failure, and having served from 1943 to 1951 without failure, it could not have been defective. This was, of course, in complete disregard of the Georgia rule16 and that of this court.17

Even more startling was the Government’s contention absorbed by the majority, “ * * * there was ample evidence to show that a fault [presumably a failure of the electrical system] of the kind that is thought to have caused this injury can and does occur in an electrical *588system without the negligence or want of care of any person.”18 Considering that Georgia looks upon high voltage electricity as the dangerous, even though useful, agency that it is, the history of improper installation, probably inadequate correction, and at least two failures substantially similar was enough "to at least require the trial judge seriously to weigh that evidence in the light of the Georgia doctrine imposing liability for damages for failure to keep the premises in repair. The premises remained the property of the United States. Under its contract with Lockheed, it was obliged to furnish and maintain a complete plant, including electrical power circuits. That would include, of course, this electrical circuit with its potential hazard and its lurking indefinite, uncertain capacity for great harm. The Government had warnings over a period of 8 years that its system was failing. Accepting the Government’s argument that circuit failures are unavoidable, this very uncertainty imposed, in keeping with Georgia principles, the duty of high diligence in the .inspection and maintenance of a facility so destructive by nature.

Of course, the destruction of the evidence should not, in these days, produce .a stalemate in justice. The common law •imported by Congress through the Tort Claims Act has the capacity for great flexibility as it meets the demands of this industrial age. Viewed with an open mind, unshackled by pronouncements laying down erroneous standards of liability, there was ample evidence to satisfy the demands of causation. If needed, res ipsa loquitur was available19 against the Government and sufficient to bridge the gap if it existed. The shibboleth of exclusive possession and control does not exclude its use here.20

It is not necessary to determine now whether these conclusions were compelled or. only permissible. Ray was entitled to a decision based on the imprint of this evidence on a mind unfettered by false and specious dogma. The Georgia law of landlord liability is fair, equitable, and subjects the Government only to the standard of reasonable prudence and care which Congress so clearly intended to be the guide for public Governmental activity. The evidence needs weighing in the scales of that doctrine.

The judgment should therefore be reversed for a new trial.

I therefore dissent.

Rehearing denied: BROWN, Circuit Judge, dissenting.

. This opinion accepts, as it must, the exclusion under Dalehite v. United States (Texas City Disaster Litigation), 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, of liability for extraordinary, novel, new and unheard of, or absolute liabilities. Cf. Indian Towing Co. v. United States, 76 S.Ct. 122.

Section 61-112, Code of Georgia, (footnote 6 majority opinion, supra), and. Ocean Steamship Company v. Hamilton, 112 Ga. 901, 38 S.E. 204 (see footnote 9 majority opinion, supra) are in the plain terms of due care. Indeed, the statute is merely a codification of common law principles long recognized in Georgia imposing reasonable care on landlords: Monahan v. National Realty Co., 4 Ga.App. 680, 685, 62 S.E. 127, citing Mayor, etc., of Brunswick v. Brax-ton, 70 Ga. 193; White v. Montgomery, 58 Ga. 204; Freidenburg v. Jones, 63 Ga. 612, 614. See also Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga.App. 483, 487, 60 S.E. 279.

. Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217, 219, “ * * * ‘Findings of fact that are induced by an erroneous view of the law are not binding * * ’ ”; Owen v. Commercial Union Fire Ins. Co., 4 Cir., 211 F.2d 488; Magidson v. Duggan, 8 Cir., 212 F.2d 748, 752, “findings * * * are clearly erroneous * * * [when] (3) based upon an erroneous view of the law * * * ”; see Fahs v. Tree-Gold Co-op. Growers of Florida, 5 Cir., 166 F.2d 40; Special Service Co. v. Delaney, 5 Cir., 172 F.2d 16.

. What we say, whether for the majority or in dissent, has so much nascent force on the district courts within our Circuit that it seems advisable to insert the phrase “whether he is legally obliged to or not” as an escape, if later needed, lest this free-lance description of the trial judge’s embracing our dicta will itself become fiat.

. Plaintiff was knocked down by a sailor running to board a troop train, The test, of course, was “in line of duty”, 28 U.S.C. § 2671 (then § 941). Likening “line of duty” for military personnel to “scope of employment”, Chief Judge Hutcheson found no basis for liability. However, it soon ceased to be the law for sailors only. See, e. g., In re Texas City Disaster Litigation, 5 Cir., 197 F.2d 771, 776: “The event around which the entire statute is built is an ‘act or omission of an employee of the Government’, and for the statute to be construed as a harmonious whole it must be so limited. See Sickman v. United States, 7 Cir., 184 F.2d 616, 619; United States v. Campbell, 5 Cir., 172 F.2d 500, 503. * * * So construed, the Act merely subjects the Government to the same liability as the delinquent employee in accordance with the local law.” (Emphasis supplied.) Judge Sloan, in reading this for what it said, was in good company for the Eighth Circuit adopted it expressly, National Mfg. Co. v. United States, 8 Cir., 210 F.2d 263, 278.

. “In summation, it follows that the appellant cannot recover against the United States: (a) for absolute liability without fault; (b) for novel and unprecedented causes of action; (c) for breaches of duty which are not held actionable under the law of the state where the injury occurred; (d) for acts or omissions of governmental employees who could not be held liable individually; (e) for acts or omissions of governmental employees in carrying out statutes or regulations ; or (f) for acts of governmental employees involving a discretionary function, whether or not the discretion involved be abused. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 157 [95 L.Ed. 152]; Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; Sickman v. United States, 7 Cir., 184 F.2d 616; United States v. Inmon, 5 Cir., 205 F.2d 681; National Mfg. Co. v. United States, 8 Cir., 210 F.2d 263; Strangi v. United States, 5 Cir., 211 F.2d 305; In*584dian Towing Co. v. United States, 5 Cir., 211 F.2d 886; Danner v. United States, D.C., 114 F.Supp: 477.”

By now it had gone the full circle: The Eighth Circuit in National Mfg. cited the excerpt from our Texas City opinion (footnote 4, supra) and we repaid in kind.

The Goodwill case didn’t involve category (d); it involved destruction of salvage clothing by migrant Mexican .treaty contract laborers.

. In colloquy with plaintiff’s counsel on the evidence of prior explosions which plaintiff urged was proof of knowledge of defect or sufficient facts to impute knowledge under the concept of Ocean Steamship Company v. Hamilton, supra, the Judge said* * * Now that is a very far-fetched theory, and it is very slim to rest a case on.”

. A complaint charging that a railroad section foreman, who had the duty of maintaining a portion of the railroad’s right of way and keeping it free of combustible material, had permitted material to remain on the land resulting in fire, was held insufficient to state a claim ágainst tbe railroad employee. Of course, tbe consequence of that decision was to impose the liability solely upon tbe railroad. -The significance of this was spelled out in one’syllable words by tbe Government in its brief here: “Thus, in this case, even if it be assumed that some Government employee was under a duty to inspect. and repair tbe cables, bis failure constituted a breach of duty owed by him to tbe United States but not to” Ray. Tbe next step in tbe argur ment is that tbe employee not being liable, tbe landlord’s liability cannot be derivative (i. e., respondeat superior) and must therefore be “special” and beyond tbe Act.

. It is one single act. That § 1846(b) speaks in terms of jurisdiction makes it no more important than § 2674. Tbe rearrangement, physical relocation in tbe Code, and slight changes in tbe text were without any significance. See Dalebite v. United States, supra, and specifically, United States v. Yellow Cab Co., 340 U.S. 543, 547, footnote 4, 71 S.Ct. 399, 95 L.Ed. 523; Feres v. United States, 340 U.S. 135, 140, footnote 9, 71 S.Ct. 153, 95 L.Ed. 152.

. Our supposed tower of seclusion may, like Pisa, lean far enough for us to see Denver, Gettysburg and Washington and share, with all citizens, the national, un-partisan anxiety over the inroads made upon the physical stamina of not only the President, but his chief advisors in the Executive Department and, equally, the members of Congress upon whose shoulders, as human instruments, the peace of the world may well rest. If, for example, the Government’s argument is sound so that the claim is outside the Act, then every citizen; as Ray, injured in such circumstances is entitled to pursue the former legislative relief. Private bills must grind slowly through the legislative process in the claims Committee of the House and Senate, are then subjected to time-consuming review by the Staff of the President’s Office, the Bureau of the Budget, and all of the Executive Departments and Agencies concerned. (See footnote 9, Dalehite v. United States, supra, 346 U.S. at page 25, 73 S.Ct. 962) There is now a brisk business of such Tort Act rejected claims.

. United States v. Hull, 1 Cir., .195 F.2d 64, 68, “ * * * but 28 U.S.C. § 1346 (b) does not say that the United States is liable in tort only where the employee himself is legally liable to the person injured. In effect the United States argues for an interpretation of the latter part of tbe section as though it read ‘ * * * if a private person, would. be liable to the claimant (and where the employee would also be liable to the claimant) in accordance with the law of the place * * * ’ — an unwarranted interpolation.” Jackson v. United States, 3 Cir., 196 F.2d 725, citing with approval Hull case, supra; United States v. Trubow, 9 Cir., 214 F.2d 192, approving both Hull and Jackson; cf. Blaine v. United States, D.C.E.D.Tenn., 102 F.Supp. 161.

Of course to equate the Government’» liability in terms of that of its negligent employee is to revive for a defensive purpose a supposed right of recovery expressly denied under 28 U.S.C. § 2676 both to the injured plaintiff and to the Government on impleader for indemnity or contribution, United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898.

. This will be true even in the traditional! “simple” intersection collision cases. For example, in Georgia, the rule is that the servant is not liable to the injured third person for nonfeasance, Atlantic Coast Line R. Co. v. Knight, 48 Ga.App; 53, 171 S.E. 919; a driver-mechanic assigned to the Commanding General, Fort: Benning, Georgia, would cast the Government in liability for injury caused by hi® negligent operation of the General’s car on official business resulting from sustained lack of sleep causing him to fall *586asleep at the wheel. If, having been instructed to repair faulty brakes on the car, he fails to do it because he went to sleep on the job, and the same plaintiff was injured from the failure of the brakes properly to operate while the ear was otherwise properly driven, the Government would escape because the driver would not be liable, under Georgia law, to the plaintiff for his nonfeasance.

It would introduce also hypertechnical distinctions wholly removed from Governmental operations in a true sense, resting entirely upon the accidental status of the injured plaintiff and the relationship to the negligent Government employee, e. g., a mail truck driver negligently crashes into an automobile parked at the curb injuring three occupants who, by the sheerest of coincidence, just happened to be the driver’s minor son, the son’s wife, and one unrelated. In many jurisdictions the driver vis-a-vis the minor son would not be liable. Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135; Sorrentino v. Sorrentino, 222 App.Div.835, 226 N.Y.S. 907; Id., 248 N.Y. 626, 162 N.E. 551; nor would the husband to the wife, Harvey v. Harvey, 239 Mich. 142, 214 N.W. 305; similarly, in a community property state, were the injured party the wife of the driver, see Northern Texas Traction Co. v. Hill, Tex.Civ.App., 297 S.W. 778; Welch v. Bauer, 5 Cir., 186 F.2d 1002; cf. Nickerson v. Nickerson, 65 Tex. 281.

Of course, all of these nice subtleties involving transitory, accidental factors of status, quality of act, whether affirmative or negative of non rather than mal feasance are quite out of harmony with Indian Towing Co., Inc., v. United States, supra.

. See footnote 10, supra, and following additional cases: State of Maryland for Use of Pumphrey v. Manor Real Estate, 4 Cir., 176 F.2d 414; Phillips v. United States, D.C.E.D.Tenn., 102 F.Supp. 943; Brown v. United States, D.C.S.D.W.Va., 99 F.Supp. 685; Gilroy v. United States, D.C.D.C., 112 F.Supp. 664; Beasley v. United States, D.C.E.D.S.C., 81 F.Supp. 518; Lem v. United States, D.C.D.C., 89 F.Supp. 915; White v. United States, D.C.N.D.Cal., 97 F.Supp. 12; Claypool v. United States, D.C.S.D.Cal., 98 F.Supp. 702.

. Although it was a detailed recitation, a careful reading of the record shows no real findings of fact as such. On the matters of critical importance, the court did find: “The explosion should not have occurred, and the question is presented of whether an inference of negligence may be drawn against the United States * * Likewise, “The engineers of Lockheed investigated the explosion and they are of the opinion that it was caused by a failure of the insulation of the cables which caused the high voltage current to go to ground.” The conclusions of law merely recite excerpts from the Tort Claims Act, specific portions of the Georgia Code, including 61-112, and without discussing any of the evidence or making findings one way or the other, concludes: “No negligence proximately causing plaintiff’s injuries has been shown. The plaintiff is not entitled to recover.”

The rule requires more than a narrative recitation of events, contentions and conclusions in the hackneyed terms of an ultimate issue. For an intelligent review, the trial judge, in articulate fashion, should reflect the basic underlying reasons for his action. Kelley v. Everglades Drainage District, 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485; Ohlinger v. United States, 9 Cir., 219 F.2d 310; Refinery Equipment v. Wickett Refining Co., 5 Cir., 158 F.2d 710; Victory Towing Co. v. Bordelon, 5 Cir., 219 F.2d 540; Maher v. Hendrickson, 7 Cir., 188 F.2d 700; Associates Discount Corp. v. United States, 5 Cir., 200 F.2d 537; *587Hunter Douglas Corp. v. Lando Products, 9 Cir., 215 F.2d 372. This is particularly true of Tort Claims cases where disputed facts, commonly determined by a jury, must be found by the judge. Irish v. United States, 9 Cir., 225 F.2d 3.

. “Ordinary care as to a thing which is subtle, violent, and dangerous, such as gas or electricity, may require a greater degree of caution than does an agency which lacks these dangerous propensities.”

. Quotes with approval Cooley on Torts (Third edition 1942) : “ ‘Electricity is an invisible impalpable force highly dan-erous to life and property, and those who make, distribute, use, or handle it are bound to exercise care in proportion to the danger involved.’ ”

. Similar prior incidents are substantial and probative in establishing defective condition, knowledge, etc.; Standard Cotton Mills v. Cheatham, 125 Ga. 649, 54 S.E. 650; Comer Co. v. Joiner, 32 Ga.App. 661. 124 S.E. 356; Central of Georgia Ry. Co. v. Keating, 45 Ga.App. 811, 814, 165 S.E. 873. See also Brewer v. United States, D.C., 108 F.Supp. 889; Baltimore & O. R. Co. v. Moore, 3 Cir., 13 F.2d 364; Patterson v. Pennsylvania R. Co., 2 Cir., 197 F.2d 252.

. Texas & P. Ry. Co. v. Carlin, 5 Cir., 111 F. 777, 781, 60 L.R.A. 462, affirmed on other ground 189 U.S. 354, 23 S.Ct. 585, 47 L.Ed. 849. In this landmark case the plaintiff was injured when a maul, left on a railroad bridge, was struck by a passing train, breaking the handle, hurling the maul against his leg. Rejecting the contention that such an accident had not happened before, we stated: “It may be true that the negligence in this case produced an effect not before observed, the circumstances of which could not have been anticipated. * * * The extraordinary circumstances attending the injury cannot serve as a defense. To so hold would be to say that a plaintiff must show similar injuries to have occurred in the same manner before he could recover. And it would lead to the anomalous result that for the first, and perhaps the second, injury occurring in such manner there could be no recovery; but for the third, or when the circumstances ceased to be peculiar or became familiar the defe7idant would be liable.”

. The evidence showed, the Government frankly stated on argument, that explosions and failures of a high voltage electrical system occur all the time. In the brief this was stated more formally (footnote 11): “None of the experts called could state with any precision the normal life of a sound properly-installed cable or a properly made splice. Circumstances, some of which are unknown, control the life of a cable and often even an expert cannot tell the cause of an electrical malfunction * * gome cables with a supposed long life fail early and others last longer than expected * * * Some splices have lasted as long as 35 years * * *, while other properly made splicings frequently may blow out or explode within, ten years’ time * *

. The following tort claims cases expressly recognize and apply res ipsa loquitur: D’Anna v. United States, 4 Cir., 181 F.2d 335; United States v. Ke-singer, 10 Cir., 190 F.2d 529; United States v. Johnson, 9 Cir., 181 F.2d 577; United States v. Hull, supra; Hampton v. United States, D.C.Nev., 121 F.Supp. 303; Bandy v. United States, D.C.Nev., 92 F.Supp. 360.

. The possession of the plant was in the Government’s agent-contractor, but the record is uncontradicted that with no motive to assert otherwise (it was a cost plus arrangement with full reimbursement to the contractor), Lockheed’s acknowledged experts concluded that the explosion was due to a failure of insulation. There was no evidence of' an excessive or sudden load on the line or any other act by Lockheed which could have accounted for it. All other probable causes, electrolysis, water seepage, lightning, and pinholes were excluded. On the record it left only failure in the insulation.