355 Mass. 245 | Mass. | 1969
On Monday, November 12, 1962, a holiday, a fire of unknown origin occurred on the premises of the defendant Eastern Storage Industrial Park Corp. (Eastern),
As a result of the fire several actions at law in multiple counts were commenced against Eastern and others.
The parties agree that the decisive issue raised by the exceptions is whether certain of the auditor’s conclusions which led to his ultimate finding of negligence are supported by his subsidiary findings. Our analysis of the subsidiary findings made by the auditor will perhaps be better understood if we now state his conclusions: 1. The original cause of the fire was unknown and undeterminable. 2. Eastern stored an excessive quantity of flammables in a structure on its premises called Building 9 Extension. 3. The excessive storage was an act of negligence. 4. This negligence was the effective cause of the damage suffered by the plaintiffs. 5. Eastern was not negligent in any other respect.
The auditor states that he used the words “flammable” and “inflammable” synonymously. It appears also that he used the words “fluid” and “liquid” interchangeably.
We summarize the findings. Continuously since December 20, 1948, and at the time of the fire Eastern held a license granted by the city of Chelsea under G. L. c. 148, § 13, to store flammables. One of Eastern’s customers was Monsanto Chemical Corp. (Monsanto) whose finished products, manufactured at its Everett plant, were stored at Eastern when space was available pending shipment to Monsanto’s customers. The turnover period of Monsanto’s products in storage was several weeks or less. Eastern’s employees took charge of the products when delivered on trucks at the plant for storage and placed them on trucks when shipped elsewhere from storage. Neither the containers delivered to Eastern nor the documents which accompanied them disclosed the “flash points” of the contents. None of the containers bore any markings suggesting that the contents were flammable. There was no requirement of law, or regulation or ordinance or otherwise that containers of fluids of the type stored by Eastern be marked or that the documents accompanying them bear any notation of their flammability.
In rating the fire hazard of flammable liquids, “flash
The Revised Ordinances of Chelsea at the time of the fire classified flammables, in Fahrenheit degrees, in three classes: Class I were liquids with flash points below 25°; Class II were liquids with flash points above 25° and below 70°; Class III were liquids with flash points above 70° and below 200°.
The liquids stored on Eastern’s premises by Monsanto at the time of the fire, all in closed, fully filled 55 gallon steel drums, are listed in the following table which states the flash point and the number of gallons of each liquid.
Name Gallons Flash Point
Dicyclohexylamine 10,175 210° F+
Santicizer 405 8,745 350° F+
Santicizer 406 12,320 350° F+
Santicizer 409 14,520 350° F+
Santicizer 411 7,315 350° F+
Santicizer 261 9,240 350° F+
Tetrapropenyl Succinic
Anhydride (TPSA) 8,745 352° F+
Tetraethyl-orthosilicate (TECS) 3,795 125° F
TOTAL 74,855
“Another classification, based on flash points, was made by regulations of the Board of Fire Prevention of the Commonwealth’s Department of Public ■ Safety. These regulations, in force at the time of the fire, were issued under G. L. c. 148, §§ 9 and 10, and governed 'the keeping, storage, manufacture or sale, in limited quantities of flammable
Still another use of flash points is made by the Interstate Commerce Commission that rules that a flammable liquid which has a flash point of 80° Fahrenheit or less must bear a conspicuous red label and cannot be carried through areas such as tunnels in interstate commerce. Such products are called “Red Label” products.
The manager of Eastern did not know anything about the State board of fire prevention flash point classifications. He told Monsanto that Eastern could handle any article except “Red Label” products. Occasionally he asked Monsanto about the flash points. The acting head of Chelsea's bureau of fire prevention made inspections of Eastern's premises from time to time prior to the fire. In these inspections nothing was disclosed which was of serious concern to the acting bureau head.
On the reverse side of the certificate of registration (a form provided by the Division of Fire Prevention of the Department of Public Safety) signed by the city clerk appear the words: “12/20/48 — Granted — License to handle and store approximately twenty thousand gallons (20,000) of Class A-B-C inflammable fluids . . . .”
The first fire alarm sounded at 7:44 f.m. on Monday, November 12, 1962. Within minutes a general alarm summoned apparatus from five neighborhood communities. The
For some time, Monsanto’s liquids in their metal drums made no contribution to the fire. The drums were all intact and had not leaked. As the fire continued to burn, however, "the heat inside the metal drums became so great that the contents started to boil and vaporize, but not burn since there was no oxygen within the drums. Eventually the combined pressures from the boiling and the vapors became so intense that some of the drums burst. At least 50 of them were catapulted into the air during a period of about twenty to thirty minutes, spewing their contents about. Vapors and liquids which were then released would ignite and form large balls of fire adding to the intensity of the blaze, chiefly in Building 9 Extension, and raising its temperature significantly.” A few minutes after the drums began to rupture in 9 Extension the destruction of the other buildings occurred.
As stated earlier in this opinion, the auditor found that the original cause of the fire was unknown and undeterminable. The auditor correctly concluded that a finding of negligence could not be based on that circumstance. See
The other conceivable classification is that given in the regulations (FPR-13) of the State board of fire prevention. If the whole range of the latter classification may be applied as the standard determinative of the liquids which could permissibly be stored in Eastern’s premises the auditor’s finding of excessive quantity of flammables is supportable. The 3,795 gallons of TECS which has a flash point of 125° Fahrenheit would fall in “Class B (less flammable fluids).” All of the other fluids, having flash points well above 187° Fahrenheit would be in “Class C (relatively safe flammable fluids).” The conclusion which the auditor reached and the calculations which he made in bis report leave inescapable the inference that he used the whole range of the classifica-
The regulations referred to and relied upon by the auditor, FPR-13, however, were not applicable to land and buildings which were licensed to store flammable fluids. They were prepared and issued by the State board pursuant to the provisions of G. L. c. 148, §§ 9, 10, and with special reference to the second paragraph of § 13, which reads, in part: “The board may by regulation prescribe the amount of any of the articles named in section nine [“explosives and inflammable materials”] that may be kept in a building or other structure without a license and registration, or either of them” (emphasis supplied). The preamble to the board’s regulations states that they are to govern the “storage ... in limited quantities ... of flammable fluids . . . without a license . . .The definitions are limited to “these . . . regulations.” The classification of flammable fluids into classes A, B and C are for “these . . . regulations.” Thus circumscribed the regulations continue, “In accordance with the provisions of Section 13, Chapter 148 of the General Laws, the board hereby prescribes not exceeding the following amounts of flammable fluids . . . that,-may be kept without a license, . . . provided a permit has been obtained therefor ...” (emphasis supplied). The maximum number of gallons of liquids in classes A, B and C which may be stored under a permit is then stated.
We think that these regulations, which under G. L. c. 148, § 13, and by their own terms are so precisely limited in their application to nonlicensed premises and so all-inclusive of the fluids for which permits are required, do not establish a standard which is applicable to the holder of a license to store flammable fluids. There are other doubts. FPR-13 became effective on May 27, 1955. The original license to Eastern was issued December 20, 1948. It was annually extended by the filing of a certificate of registration. See Saxe v. Street Commrs. of Boston, 307 Mass. 495, 498. Under G. L. c. 148, § 13, as amended through St. 1951, c. 329,
Since there was no violation of the Chelsea ordinance and since the record does not reasonably permit the application of any other standard to measure “an excessive quantity of flammables” under Eastern’s license, and since the auditor could not supply it of his own knowledge, it follows that the finding of excessive quantity must fall. With it falls the finding of negfigence. Inasmuch as the auditor found that “Eastern was not negligent in any other respect, ” the motions for directed verdicts were rightly allowed.
Exceptions overruled.
Judgments for the defendant.
Judgments have been entered for all defendants except Eastern.
The findings were made on three counts brought by Baron (all for the same cause of action) and on two counts brought by White Star (both for the same cause of action).
The testimony of these witnesses when subject to cross-examination deprived the auditor’s report of its compelling effect but left it as evidence to be considered as the only evidence in the case in support of the plaintiffs’ causes of action.
There were also solid chemical products stored in fiberboard drums or large paper bags. These are omitted from our listing since they play no part in the result.
The auditor’s report continues: “By these regulations, flammable fluids were divided into three classes — A, B and C — defined in the regulations as follows:
“ Class A (highly flammable fluids), any flammable fluid having a flash point below one hundred degrees (100°) Fahrenheit, to be ascertained by any standard closed-cup instrument.
“Class B (less flammable fluids), any flammable fluid having a flash point of not less than one hundred degrees (100°) Fahrenheit, nor higher than one hundred eighty-seven degrees (187°) Fahrenheit, to be ascertained by any standard closed-cup instrument.
“Class C (relatively safe flammable fluids), any flammable fluid having a flash point above one hundred eighty-seven degrees (187°) Fahrenheit, to be ascertained by any standard closed-cup instrument.”
The remainder of the statement is not stated since the auditor made no finding of noncompliance concerning it.
Although there is no specific finding that all of these liquids were in Building 9 Extension, we think it is fair to infer that most of them were.