United States of America, Appellant, v. Robert W. Wells and Luther P. Thompson, Appellees, 337 F.2d 615 (5th Cir. 1964)

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U.S. Court of Appeals for the Fifth Circuit - 337 F.2d 615 (5th Cir. 1964) October 19, 1964

William O. Murray, Jr., Asst. U. S. Atty., San Antonio, Tex., Ernest Morgan, U. S. Atty., Western District of Texas, San Antonio, Tex., for appellant.

Donald G. Humble, Cameron, Tex., Tom J. Conway, William H. Brigham, Waco, Tex., Jack W. Prescott, Temple, Tex., Conway, Brigham, Bice & Cowden, Waco, Tex., for appellees.

Before RIVES and BROWN, Circuit Judges, and INGRAHAM, District Judge.


The Government appeals from a judgment under the Federal Tort Claims Act for extensive property damage to a filling station and adjacent restaurant caused by fire occurring in the course of an attempt to drain gasoline from a military vehicle into the pit of the service station's wash rack. There was ample evidence to justify the District Court's findings that this was proximately caused by specific, and spectacular, acts of negligence on the part of military personnel and not, as the Government contends, wholly that of the service station attendant. Assuming that by reason of the location of the non-spark proof electric motor near the floor of the wash rack room, there was a violation of a local city electrical ordinance constituting contributory negligence per se, the evidence was not such as to compel a finding of proximate cause or overturn the implied finding by the District Court to the contrary.

The Government therefore fails in every attack on the substantive merits of the case. The Appellees, however, concede that there was a technical error as to interest, and the judgment is therefore modified to provide interest from the date of the filing of the transcript of the judgment in the General Accounting Office to the date of the mandate of affirmance as required by the Act of July 27, 1956, ch. 748, § 1302, 70 Stat. 694, as amended, 31 U.S.C.A. § 724a (Supp. 1963).

Modified and affirmed.