# Petition — Jordan v. U. S. Natural Resources, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1069

## Text

9EC 22 1977

Supreme Court of the United States .

OcToBerR Ter», 1977

K JR. CLERK
4 » Vee

No. mm i “907

BRUCE K. JORDAN, PETITIONER,

versus

U. S. NATURAL RESOURCES, INC..
IRVINGTON MOORE DIVISION, Responpent

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT

HENRY HAMMER,
1019 Assembly Street,

Columbia. South Carolina 29201.

‘

JOHN C. LINDSAY,
104 Market Street,
Bennettsville, South Carolina
29512.

Attorneys for Petitioner.

=

The R. L. Brvan Company. Lege! Printers, Columbia. S$. C

INDEX

PaGE
Opinions Below 1
Jurisdiction 2
Questions Presented 2
Statutory Provision Involved 2
Statement | Ep Ak Nets Sy ALN ET aE OF 3
Reasons for Granting the Writ ......... hoc caven ek 4

(1) The decision herein is not in accord with the
applicable decisions of this Court d

(2) Existing conflict among the circuits and also
among the courts within specific circuits 4

(3) The action of the Court below, in affirming the

findings and judgment of the District Court, is

inconsistent with applicable principles of fed-

eral appellate review and contrary to the ap-

plicable state law involving an important

question affecting the loss of human life which
otherwise may be saved 5)
Conclusion 9
Appendix 11
Index to Appendix . 1

(i)

CITATIONS

PAGE

Breslin v. State, 189 Mise. 547, 72 N. Y. 8S. (2d) 63 (1947)
C. I. R. v. Duberstein, (1960) 363 U.S. 278

Carney v. Buyea, 271 App. Div. 338, 65 N. Y. S. (2d)
902 (1946)

Corbin v. City of Philadelphia, 195 Pa. St. 461, 45 Atl.
1070 (1900)

Fasterlin v. Green, 248 S. C. 389, 150 S. E. (2d) 473
(1966)

Galloway v. U.S. (1943) 319 U.S. 372

Jowers v. Dupriest, 249 S. C. 506, 154 S. E. (2d) 922
(1967)

Maryland Steel Co. v. Marney, 88 Md. 482, 42 Atl. 60
(1898)

McAlister v. U.S., (1954) 348 U.S. 19
Porter v. Cook, 196 S. C. 433, 188 S. E. (2d) 486

Rogers v. Florence Printing Company, 233 S. C. 567,
106 S. E. (2d) 258 (1934)

Sarratt v. Holston Quarry Co. of S. C., 1748. C. 262, 177
S. E. 135 (1934)

Youn v. Baldridge, 243 S. C. 458, 134 S. E. (2d) 258
(1958) F

United States v. United States Gypsum Co., (1948) 333
U. S. 364

Zenith Radio Corp. v. Hazeltine Research, Inc., (1969)
395 U.S. 100

( iii )

6

qr

6

6

6

OTHER REFERENCES

Pace
158 A. L. R. 190 inde ten 1000 be eeke.ee See 8
4 A. L. R. 3d 558 | er ae.
35 Am. Jur. 2d., Fires, pg. 614 6

C. F. R., Title 29, Labor-Parts 1900-1919, Rev. July 1,
1975, Subpart H, sec. 1910 at pages 165, 172, 175 7-8

Federal Rules of Civil Procedure, Rule 52(a) 2, 4
28 U.S. C. 1254 9
Restatement of the Law of Torts, Vol. 2, See. 472 6

Wright & Miller, Vol. 9, Federal Practice and Procedure 4

Chapt. 7, section 2587, pg. 740, et seq. 4,5

Chapt. 7, section 2590, pg. 760 5

49 Va. L. Rev. 506 (April 1963) 5)
(iv )

Supreme Court of the United States

OctrosBer TERM, 1977

BRUCE K. JORDAN, Petirioner,
versus

U. S. NATURAL RESOURCES, INC.,
IRVINGTON MOORE DIVISION, Responpent

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT

The petitioner prays that a Writ of Certiorari issue to
review the decision and judgment of the United States
Court of Appeals for the Fourth Circuit, dated and entered
in this ease on October 5, 1977.

OPINIONS BELOW
The opinion of the District Court (App. 13) is not

reported. The order of the District Court denying peti-
tioner’s motion for an amendment to and supplemental find-
ings of fact and conclusions of law (App. 25) is not re-
ported. The opinion of the Court of Appeals (App. 27)
is not yet reported. The opinion of the Court of Appeals
denying the petition for rehearing and suggestion for re-
hearing en banc (App. 39) is not reported.

2 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

JURISDICTION

The judgment of the Court of Appeals was entered on
the 5th day of October, 1977 ‘App. 27). Petition for re-
hearing and suggestion for rehearing en banc (App. 31)
was denied on the 7th day of November, 1977 (App. 39).
The jurisdiction of this Court is invoked under the provi-
sions of 28 U.S. C., Section 1254.

QUESTIONS PRESENTED

1. Does the standard of federal appellate review of
findings by a District Judge in actions tried without a jury
under Rule 52(a) of the Federal Rules of Civil Procedure
compel that such findings be given the same binding force
and effect as is required to be given to a jury verdict, par-
ticularly where the findings are based upon undisputed and
uncontroverted evidence?

2. Whether in actions tried without a jury a Court of
Appeals is bound by the findings of a District Judge made
pursuant to Rule 52(a) of the Federal Rules of Civil Pro-
cedure that it is contributory negligence for a person to go
to the rescue of another who wrongfully creates the situa-
tion necessitating the rescue where such findings and con-
clusions are without evidentiary support or, at the least, the
entire evidence of record is productive of a definite and firm
conviction that a mistake has been committed?

STATUTE INVOLVED

Rule 52(a) of the Federal Rules Civil Procedure,

“Tn all actions tried upon the facts without a jury...
the court shall find the facts specially. ... Findings of
fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial
judge to judge of the credibility of the witnesses.”

JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT 8

STATEMENT

Petitioner brought suit against respondent corporation
to recover damages for severe burns and serious permanent
injuries sustained in going to the rescue of persons, includ-
ing respondent’s agent, working in a building where a
bucket of gasoline was caused to be ignited and burst into
flames by reason of the alleged negligence, recklessness and
wantonness of respondent’s agent.

The case was tried on May 12, 1975 before the District
Judge without a jury. On December 16, 1975, he issued his
Findings of Fact, Conclusions of Law and Order ¢irecting
entry of judgment for respondent, based upon his conclu-
sion that petitioner was contributorily negligent * in under-
taking to rescue persons, including respondent’s agent, by
removing from the premises where they were at work the
blazing bucket of gasoline which was in close proximity to
tanks and rubber hoses containing flammable gases of acet-
ylene and oxygen (App. 13). Petitioner filed a timely
motion to amend and supplement the findings of fact, con-
clusions of law and order for judgment (App. 19) which
was denied by Order of the District Judge, dated January
26, 1976 (App. 25).

Upon appeal, the Court below, after detailing the un-
controverted facts giving rise to this action, concluded that
since this case was tried without a jury it can no more re-
verse the District Judge’s findings than could an appellate
court disturb the jury’s resolution of the similar question
in a state court. Also, nowhere in its otherwise detailed
opinion did the court discuss or pass upon the question as
to respondent’s recklessness and wantonness which was
briefed and argued in the appeal below. The Court, there-

* Implicit from the District Judge’s finding of contributory negli-
—— is that ndent was —— in causing the blaze. The District
udge made no finding as to the alleged recklessness and wantonness of
the respondent, as to which contributory negligence is not a bar to re-
covery in South Carolina.

4 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

fore, affirmed the judgment of the District Court (App.
30). Petition for rehearing and suggestion for rehearing
en banc was filed, requesting, at the least, that the Court
below pass upon the question presented in the appeal below
as to the recklessness and wantonness of respondent as to
which contributory negligence is not a bar to recovery in
South Carolina. Jowers v. Dupriest, 249 S. C. 506, 154 S. E.
(2d) 922 (1967). The petition was denied by the Court be-
low on November 7, 1977 (App. 39).

REASONS FOR GRANTING THE WRIT

1. The decision herein is not in accord with the applica-
ble decisions of this Court:—The decision in the Court be-
low is in direct conflict with the holding by this Court
enunciated in pe: States v. United States Gypsum Co.
(1948), 333 U. S. 364, 395 that in actions tried without a
jury “judicial review of findings of trial courts does not
have the constitutional limitations of findings ... by a jury”
and are “never conclusive”; and “A finding is ‘clearly erro-
neous’ 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 com-
mitted.”

2. Existing conflict among the Circuits and also among
the courts within specific circuits:—Notwithstanding the
decisions of this Court construing the scope of federal re-
view of findings made pursuant to Rule 52(a) of the Fed-
eral Rules of Civil Procedure, Vues States v. United
States Gupsum Co. (1948), 333 U.S. 364 Zenith Radio Corp.

. Hazeltine Research, Inc. (1969), 395 U. S. 100, CIR v.
ise im (1960), 363 U.S. 278, McAlister v. U. S. (1954),
348 U.S. 19, there is a conflict not only among the cireuits
but also within specific circuits as to the scope of review as

pointed out by the author in Vol. 9, Wright and Miller, Fed-

JORDAN, PETITIONER, v. U. S. NaTuRaAL RE&s., INC., RESPONDENT 5

eral Practice and Procedure, Chapter 7, Section 2587, page
740 et seq. and particularly when a finding of negligence is
involved, Vol. 9, Wright and Miller, Federal Practice and
Procedure, aang 7, section 2590, page 760. To the same
effect, see Note, Rule 52(a): Appellate Review of Findings
of Fact based on Documentary or Undisputed Evidence, 49
Va. L. Rev. 506 (April, 1963).

The allowance of the petition in the case at bar would
afford this Court the opportunity to resolve the prevalent
confusion and conflicts among the circuits and among the
courts within specific circuits on an important question of
appellate review and would be conducive to the fair and
efficient administration of justice.

3. The action of the Court below, in affirming the find-
ings and judgment of the District Court, is inconsistent
with applicable principles of federal appellate review and
contrary to the applicable state law involving an important
question affecting the loss of human life which otherwise
may be saved.

The action of the Court below, in refusing to disturb
the finding of Ge District Judge that petitioner was con-
tributorily negligent in going to the rescue of respondent's
agent and others, is in direct conflict with the holding of
this Court that where a party having the affirmative of an
issue has the occasion and opportunity to produce evidence
on such issue, but the evidence thereon is legally insufficient
to support the burden of the party’s proof, such issue
should be withdrawn from the a of the fact
finder. Galloway v. United States, 319 U. S. 372 (1943).

In South Carolina, like in most other suriedictions eon-
tributory negligence is an affirmative defense and the bur-
den is on the defendant to make out such defense by the
greater weight or preponderance of the evidence. Easterlin
v. Green, 248 S, C. 389, 150 S. E. (2d) 473 (1966).

6 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

In accordance with the Sudden Emergency Doctrine in
South Carolina, Porter v. Cook, 196 S. C. 433, 138 S. E.
(2d) 486, coupled with the Rescue Doctrine as enunciated
in Vol. 2, Restatement of the Law of Torts, section 472, 35
Am. Jur. (2d), Fires, sec. 34, p. 614 and 4 A. L. R. (3d) 558,
followed in South Carolina, Sarratt v. Holston Quarry Co.
of S. C., 174 S. C. 262, 177 S. E. 135 (1934), which stems
from the high regard that the law has for human life, Mary-
land Steel Co. v. Marney, 88 Md. 482, 42 Atl. 60 (1898), the
declared “'aw of the land”, based upon “conscience and rea-
son” and “the best judgment of thoughtful and intelligent
judges” approving rather than condemning the bravery
of a rescuer, Corbin v. City of Philadelphia, 195 Pa. St. 461,
468-469, 45 Atl. 1070 (1900), and the universal rejection of
the cowardly proposition that a rescuer upon perceiving
the danger should run away and leave those in danger to
the consequences thereof, Breslin v. State, 189 Mise. 547,
72 N. Y. S. (2d) 63 (1947), petitioner respectfully submits
that the finding of contributory negligence in the case at
bar is totally without evidentiary support.

From the evidence of record and as appears from the
opinions of the District Court and the Court below the fol-
lowing pertinent facts are undisputed and uncontroverted:
(1) respondent’s agent allowed or caused to be brought into
a building where he and other men were working with an
acetylene torch on a platform or catwalk above the ground
an open bucket of gasoline, (2) that to the knowledge of
respondent’s agent the bucket of gasoline was placed in
close proximity to tanks containing hazardous gases of
acetylene and oxygen supplying through attached rubber
hoses fuel to the acetylene torch throwing off sparks while
in use by respondent’s agent, (3) that a spark fell into the
bucket igniting the gasoline which burst into flames, (4)
that at the time there were several men, including respon-

JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT 7

dent’s agent, working on the catwalk, (5) that one of the
men upon seeing the blaze and afraid of the fire ran out of
the building (Reporter’s Transcript, pp. 52, 1 1; App. to
appellant’s brief in Court below, p. 37, 1 22), (6) that re-
spondent’s agent, working on the catwalk engaged in cut-
ting steel by means of the acetylene torch, with his eyes
probably shielded, was oblivious to the fire (Reporter’s
Transcript, p. 172, 11 1-19; App. to appellant’s brief in Court
below, p. 103, ll 1-19), (7) that petitioner entered the build-
ing at the time the gasoline burst into flames, and upon be-
ing confronted with the blaze and the men working on the
catwalk, and reasonably believing that they were in danger
(Reporter’s Transcript, pp. 104-107; App. to appellant’s
brief in Court below, pp. 67-70), grabbed the nearest means
at hand—a stick which he ran through the handle of the
bucket, lifted it and started out of the building, and (8)
that petitioner, as he neared the entrance of the building,
his vision obscured by the flames, stumbled, overturning
the bucket with the result that the fire spilled over him
causing severe burns and permanent injuries.

From the foregoing undisputed facts, it is apparent
that there was not one iota of evidence that petitioner was
guilty of contributory negligence or, at the least, the entire
evidence is productive of the definite and firm conviction
that a mistake has been committed in finding petitioner
guilty of contributory negligence in going to the rescue of
respondent’s agent and others. This is so, notwithstanding
the District Judge’s process of reasoning that petitioner
was not engaged in a rescue since the men on the catwalk
were not in danger because they were not calling for his
assistance. The fallacy of this reasoning is clearly evident
when it is considered (1) that it is common knowledge and
recognized that acetylene and oxygen are hazardous gases,
particularly when in close proximity to flames, Title 29-

8 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

Labor-Parts 1900-1919 of CFR, rev. July 1, 1975, Subpart
H, sec. 1910 at pages 165, 172, 175, (2) that one of the men
on the catwalk upon seeing the burst of flames immediately
ran out of the building, (3) that respondent’s agent, work-
ing with an acetylene torch cutting steel with his eyes
shielded, was oblivious to the fire, and (4) that calling for
assistance is not a prerequisite for allowing recovery to a
rescuer, particularly where the person rescued or sought
to be rescued is not aware of the danger, Carney v. Buyea,
271 App. Div. 338, 65 N. Y. S. (2d) 902 (1946). In addition,
as stated in 158 A. L. R. 190, 193, even though the course
which the rescuer takes, when viewed in retrospect as was
viewed by the District Judge here, may have proved un-
necessary, it cannot affect the rights of the rescuer or con-
stitute contributory negligence.

Moreover, the Court below did not discuss or pass upon
the question presented whether the respondent was guilty
of recklessness or wantonness as to which contributory neg-
ligence does not bar a recovery. In this connection, since the
record is undisputed that respondent’s agent consciously
caused the bucket of gasoline to be brought into the prem-
ises, and, with knowledge that it was placed in close prox-
imity to rubber hoses carrying hazardous gases of acetylene
and oxygen, engaged in cutting steel by the use of an acet-
viene torch which emitted sparks, igniting the bucket of
gasoline, it is clear that he was guilty of recklessness and
wantonness as a matter of law in accordance with the defi-
nition and meaning of recklessness as articulated by the
South Carolina Supreme Court in Youn v. Baldridge, 243
S. C. 458, 1384 S. E. (2d) 248 (1964) and Rogers v. Florence
Printing Company, 233 S. C. 567, 106 S. E. (2d) 258 (1958).
Thus assuming, arguendo, that petitioner was guilty of con-
tributory negligence, it did not bar a recovery against re-
spondent.

JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT 9

The issue raised under this heading involves an im-
portant question of state law as to conduct affecting the
loss of human life which otherwise.can be saved, was de-
cided in a way in conflict with state law and universal rea-
soning, and involves an important question of federal
appellate review as to which the Court below has so far
departed from the accepted and usual course of judicial
proceedings as to call for an exercise of this Court’s power
of supervision.

CONCLUSION

For the foregoing reasons, this Court should grant this
petition for for a Writ of Certiorari, should reverse the
judgment of the Court below and remand the case with di-
rections to order the District Court to assess damages in
favor of petitioner.

Respectfully submitted,

HENRY HAMMER,
1019 Assembly Street,
Columbia, South Carolina 29201,
JOHN C. LINDSAY,
104 Market Street,
Bennettsville, South Carolina
29512,

Attorneys for Petitioner.

APPENDIX

INDEX TO APPENDIX

PAGE
Findings of Fact, Conclusions of Law and Order 13
Judgment 18

Motion to Amend and Supplement Findings of Fact,
Conclusions of Law and Judgment 19

Order of District Judge Denying Motion to Amend and
Supplement Findings of Fact, Conclusions of Law

and Judgment 25
Opinion of Court of Appeals 27
Petition for Rehearing and for Rehearing En Bane 31

Order of Court of Appeals Denying Petition for Re-

hearing and for Rehearing En Bane 39
(12)

APPENDIX

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIvIsiIon

BRUCE K. JORDAN, Puarytirr,
versus

U. 8S. NATURAL RESOURCES, INC.,
IRVINGTON MOORE DIVISION, Derenpant

Civil Action No. 74-922

FINDINGS OF FACT, CONCLUSIONS OF LAW
AND ORDER

Filed December 16, 1975

This matter was tried before the Court without a jury
and involves an action for personal injuries resulting from
burns sustained by the plaintiff, which are allegedly due
to the negligence of defendant’s employee, who was super-
vising the repairing and updating of a kiln used by Boro
Wood Products, Inc., the plaintiff’s employer.

Having weighed all of the evidence and studied the ap-
plicable law, the Court makes the following:

Findings of Fact

1. The plaintiff is a citizen and resident of South Car-
olina and was 48 years of age at the time of his injury on
January 14, 1972.

2. The defendant, U. S. Natural Resources, Inc., Ir-
vington Moore Division, is a corporation organized and
existing under the laws of a state other than South Caro-
lina, but doing business within South Carolina.

3. That plaintiff was an employee of Boro Wood Prod-
ucts Co., Inc., hereinafter referred to as Boro, for a num-
ber of years prior to his injury. Boro uses a brick kiln,
which is 25 feet wide, 125 feet long and 13 feet high, in
processing wood used for the making of kitchen cabinets
and other products. This kiln has a dirt floor.

4. That at some date prior to December 8, 1971, Boro
suffered certain damage to its kiln and on December 8, 1971

(13)

14 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

Boro entered into a contract with the defendant to “repai
and update” the kiln. This contract provided that the
fendant would furnish a supervisor for the work at ac

of $100.00 per day and if Boro furnished at least six men to
assist the supervisor, the work time should not exceed ten
days.

5. That defendant sent its en:ployee Orval Searcy to
the Boro plant at Bennettsville, South Carolina to super-
vise the work under the contract, and a crew of seven Boro
employees were assigned to him to help with the work.
Plaintiff was a supervisor for Boro and he was to make
sure that the seven Boro men worked for Searcy. Plaintiff
was not to do any physical work for Searcy, but was to
check on the Boro employees from time to time. This
arrangement resulted from a labor union contract of Boro
that prevented its employees from working under the
supervision and direction of an outsider unless a Boro
supervisor were present.

6. On or about January 14, 1972, it became necessary
to clean certain babbits (bearing covers and bearings).
These babbits may be cleaned by carbon tetrachloride or by
gasoline. There is a dispute in the testimony as to whether
Searcy asked an employee of Boro to get gasoline or car-
bon tetrachloride, but it is undisputed that the employee
obtained gasoline and that Searcy knew that gasoline was
being used in this cleaning process. There was approxi-
mately two and one-half gallons of gasoline in a five gallon
bucket, which was brought into the kiln. This bucket was
placed in close proximity to certain tanks containing oxy-
gen and acetylene. Hoses extended from these tanks to a
catwalk on which acetylene torches were being used and
throwing off sparks.

7. One of these sparks ignited the fumes arising from
the gasoline bucket and a fire resulted in the bucket of gas-
oline. The plaintiff came into the kiln at about the time the
gasoline fire began. He stated that the hose of one of the
oxygen tanks was only abowt-sfX feet from the flame and he
was afraid that the oxygen might catch fire, explode and
kill him and the other employees. He ran a wooden stick,
two or three feet in length, through the handle of the burn-

APPENDIX 15

ing bucket, lifted the bucket and started out of the building
with the fire. Unfortunately, he stumbled and fell causing
the gasoline and fire to be spilled over him resulting in very
serious burns over much of his body.

8. At the time plaintiff acted in an effort to remove the
fire from the kiln he asserts that his actions were in an
effort to protect the other employees from serious injury
and the company’s equipment from damage by fire. This
anxiety was not shared by the other employees present. One
employee, Malachi, testified when he saw the flame he was
afraid and left his position on the catwalk, but admitted
that he did not think anything would have happened if the
flame and fire had been left where it was. The remaining
Boro employees, who were present at the time of the fire,
testified that the fire could have been easily distinguished
by putting some type of lid or top on the gasoline bucket
to cut off the supply of oxygen. The other employees did
not think the fire created an immediate danger to persons
or property.

9. The plaintiff was not engaged in a rescue of other
employees when he attempted to remove the burning gaso-
line can, since the other employees were not in danger and
were not calling for his assistance. He left a place of safety
voluntarily and attempted to remove a five gallon bucket
containing burning gasoline with only the use of a two to
three foot stick, and he attempted to remove the bucket not
just from the vicinity of the oxygen tank, which he contends
created a hazard, but all the way out of the building.

10. In view of the conclusions of law, based upon the
above Findings of Fact, it is not necessary to discuss

damages. 7“

~

16 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

CONCLUSIONS OF LAW

A. The Court has jurisdiction of the parties because
of diversity of citizenship and the amount in controversy.

B. While it may have been negligent of the defendant’s
employee to allow the babbits to be cleaned in a gasoline
solution rather than in carbon tetrachloride in close prox-
imity to an acetylene torch and oxygen tanks, the Court
finds that the plaintiff was guilty of contributory negli-
gence in attempting to remove the burning five gallon
bucket by use of only a short stick. Plaintiff’s actions were
unreasonable under the circumstances and he assumed any
risk in connection therewith. The contributory negligence
of the plaintiff combined and concurred with any such neg-
ligence on the part of the defendant as a proximate cause
of his injuries and without which they would not have re-
sulted and, therefore, the plaintiff may not recover.

C. Plaintiff contends that any unreasonable act on his
part results from his effort to rescue his fellow servants
or to protect the property of his employer, and that under
the “Rescue Doctrine” his actions were not negligent. This
“Rescue Doctrine” is enunciated in the case of Sarratt v.
Holston, 174 S. C. 262, 177 S. E. 135 (1934). Sarratt had
gone to the rescue of a fellow employee who ‘‘lay prostrate,
in the grasp of the electric current and heavy voltage
that surrounded the said metal shed and nearby pole,
with which were connected the uninsulated wires heavily
charged with electricity, wailing and crying for help... .’’
(Emphasis added). The Court stated:

“It is the position of appellants that, when the intes-
tate went to the rescue of Mr. Champion, he assumed
or incurred the risk incident thereto. In this connection
we may state that ordinarily a person going to the res-
cue of another person in danger has no higher right of
protection, under the law, than the person he goes to
protect or rescue. While under the general rule this is
true, the action of the person who goes to the rescue of
one in peril and danger must be viewed in the light of
the conditions and circumstances surrounding him at
the time he acts. One going to the rescue of a person in
pain and suffering and apparent danger of immedi-

APPENDIX 17

ately losing his life does not, if he is a normal person,
take time to think out and deliberately plan the safest
way to protect himself from danger in carrying out
the purpose of his act; that is, to rescue a person in
danger. All that is required of him, under the law, is
to act and do as an average, normal person would sit-
uated under like circumstances.”

Later the Court states:

“... In answering the request and call to render as-
sistance in rescuing Mr. Champion from his perilous
position, the intestate could not be expected, and should
not be expected, to go about such tasks with the de-
liberation and calmness that one would be expected to
act under a case where no suffering existed and there
was no apparent need of immediate action. He should
simply be required to act as any normal person would
likely act under similar situation and cireumstances,
trying to rescue a fellowman from apparent immediate
danger.”

Comparing Jordan’s actions in the present case to
those of Sarratt, it is obvious that the “Rescue Doctrine”
which allowed recovery in Sarratt is not broad enough to
cover Jordan. In the present case Jordan’s fellow em-
ployees were not calling for help, none of them were help-
less or had been injured in the fire, no equipment of the
company had been ignited and the other people present
were not unduly excited about the blaze. The plaintiff’s
contention that he was required to act immediately to re-
move the fire from the premises is not supported by the
facts, particularly the actions or lack of action of the other
employees present.

Based on the record in this case, the Court is compelled
to find that the plaintiff was contributorily negligent in

18 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

bringing about his injuries and, therefore, he may not re-
cover against defendant.

IT IS, THEREFORE, ORDERED that the Clerk
enter judgment for the defendant.

AND IT IS SO ORDERED.

ROBERT F. CHAPMAN,
United States District Judge.

_ December 16th, 1975,
Columbia, South Carolina.

Civil Action No. 74-922

JUDGMENT

This action came on for trial before the Court, Honor-
able Robert F. Chapman, United States District Judge,
presiding, and the issues having been duly tried and a
decision having been duly rendered,

It is Ordered and Adjudged that Plaintiff, Bruce K.
Jordan, take nothing of Defendant, U. S. Natural Re-
sources, Inc., Irvington Moore Division, and that the action
be dismissed.

Dated at Columbia, South Carolina, this 16th day of
December, 1975.

MILLER C. FOSTER, JR.,
Clerk of Court.

By: /s/ LINDA N. RICHARDSON,
Deputy Clerk.

o_o

APPENDIX 19
Civil Action No. 74-922

MOTION TO AMEND AND SUPPLEMENT FINDINGS
OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

The plaintiff above named moves the Court to amend
and supplement its findings of fact, conclusions of law and
judgment heretofore filed, in the following particulars:

1. Amend Finding of Fact No. 7 to read as follows:

One of these sparks ignited the fumes arising
from the gasoline bucket and a fire resulted in the
bucket of gasoline emitting flames therefrom. The
plaintiff came into the kiln at the time the gasoline
fire began: and confronted with the sudden emergency
and reasonably apprehensive of the peril and danger
to the lives of the persons working in the kiln on the
catwalk, some of whom apparently did not recognize
the danger, and seeing that Searcy, defendant’s em-
ployee, and the other workers were moving along the
catwalk and dragging the hoses leading from the
acetylene torch to the oxygen tanks closer to the flames,
and fearful that the flames would sever the hoses caus-
ing the kiln to fill up with oxygen from the escaping
valves and cause either an explosion or conflagration
of the fire to the peril of those on the catwalk, plaintiff
immediately picked up a wooden stick, two or three
feet in length, which he found nearby, ran it through
the handle of the bucket, lifted the bucket and started
out of the building with the burning gasoline in the
bucket. While so removing the flaming bucket, plain-
tiff stumbled and fell causing the gasoline and fire to
be spilled over him resulting in very serious burns
over much of his body.

2. Amend Finding of Fact No. 8 to read as follows:
At the time plaintiff was confronted with the sud-
den burst of flames from the burning bucket of gas-
oline while Searcy and other workers were moving the
hoses leading from the oxygen tanks up to the catwalk
closer to the flames, and acted in an effort to remove
the flaming bucket, he asserts and reasonably believed
that the persons working on the catwalk were in peril

20 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

or danger of loss of life or serious bodily injury, par-
ticularly since some of them were in a position where
they might not have been able to recognize the danger
and were in the process of moving along the catwalk
bringing the hoses leading from the tanks to the

ee re tre es ee

APPENDIX 21

of the gasoline and create a condition dangerous to
the safety and lives of the persons working in the
premises and to the equipment therein.

6. Consistently with the findings of fact as so amended

and supplemented, the conclusions of law be amended to
state in addition to paragraph A, and in lieu of paragraphs
B and C, the following:

acetylene torch on the catwalk closer to the flames;
and the plaintiff’s actions were an effort to protect or

rescue such persons from the apparent peril or danger
to their lives and to protect the equipment from the
danger of damage or destruction by fire.

3. Amend Finding of Fact No. 9 to read as follows:

The plaintiff was engaged in the protection or
rescue of the persons working in the kiln from the
apparent imminent danger or peril of loss of lives or
serious bodily injuries and the protection of the equip-
ment from the danger of destruction or damage by fire
when he attempted to remove the flaming bucket of
burning gasoline from the premises, and at the time
was acting in a sudden emergency created by the ac-
tions and conduct of defendant’s employee in using
an acetylene torch to cut metal which caused sparks to
be emitted and ignite the fumes from the bucket of
gasoline in close proximity to the hoses leading from
the tanks on the floor of the kiln to the catwalk above.

4. Amend Finding of Fact No. 10 to read as follows:

In view of the conclusions of law based upon the
above findings of fact, the plaintiff is entitled to a
recovery against the defendant for the injuries and
damages sustained by him.

5. Make the following additional findings of fact:

The defendant, by and through its agent and em-
ployee working on the catwalk within the course and
scope of defendant’s employment, used an acetylene
torch on metal causing sparks to fly which resulted in
a fire when a spark struck the fumes of the gasoline in
the bucket notwithstanding that defendant’s employee
knew that the bucket contained gasoline which was in
close proximity thereto and that the emission of the
sparks would likely result in the ignition of the fumes

The defendant, by and through its agent and em-
ployee acting within the course and scope of employ-
ment, was negligent, reckless and wanton in using an
acetylene torch on metal emitting sparks which struck
the fumes of the gasoline and caused it to ignite when
said defendant’s employee knew that the bucket of
gasoline was in close proximity thereto and that the
use of the acetylene torch on metal would emit sparks
and likely result in the ignition of the fumes from the
gasoline, dangerous to the safety and lives of the per-
sons working in the premises and to the equipment
therein.

The negligence, recklessness and wantonness of
the defendant by and through its employee acting with-
in the course and scope of his employment was a prox-
imate cause of the fire and resulting injuries and dam-
ages to the plaintiff.

The plaintiff, upon suddenly being confronted with
a flaming bucket of burning gasoline in his employer’s
building in close proximity to mabber hoses leading
from an oxygen tank on the floor of the kiln to an
acetylene torch on the catwalk above and reasonably
believing that the persons work' ; in said building
were in danger of loss of lives or serious bodily in-
juries and that the equipment therein was in danger
of destruction or damage by fire, acted as a reasonably
prudent person would have acted under the same or
similar circumstances and was not contributorily
negligent, reckless or wanton in attempting to protect
or rescue the workers and the equipment therein from
the danger by acting to remove the burning bucket of
gasoline from the premises.

JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

“As summarized by The Restatement of the Law
of Torts, Vol. 2, Sec. 472, ‘it is not contributory neg-
ligence for a plaintiff to expose himself to danger in
a reasonable effort to save a third person or the land
or chattels of himself or a third person from harm.’”
Breslin v. State, 189 Mise. 547, 72 N. Y. Supp. 2d 62
(1947).

In the cited case, wherein the facts are similar to
those in the present case, the Court held that it was
not contributory negligence for a plaintiff to expose
himself to danger by assisting and removing a blazing
barrel from a storage room. In holding that contrib-
utory negligence could not defeat a recovery in such
circumstances and discussing the “Rescue Doctrine”
which is equally applicable to the facts in the present
case, the Court stated:

“Danger invites rescue .... The law does not

ignore these reactions of the mind in tracing con-

duct to its consequences. It recognizes them as
normal. It places their effect within the range of
natural and probable. The wrong that imperils

life is a wrong to the imperiled victim; it is a

wrong also to his rescuer.”

The “Rescue Doctrine” is followed in South Caro-
lina. In Sarratt v. Holston, 174 S. C. 262, 177 S. E. 135
(1934), the Court stated:

“. .. The action of the person who goes to the
rescue of one in peril and danger must he viewed
in the light of the conditions and circumstances
surrounding him at the time he acts. One going
to the rescue of a person... in apparent danger
of immediately losing his life does not, if he is a
normal person, take time to think out and delib-
erately plan the safest way to protect himself from
danger in carrying out the purpose of his act;
that is, to rescue a person in danger. All that is
required of him, under the law, is to act and do as
the normal person would under like cireum-
stances.”

APPENDIX 23

Also applicable to the present case is the “Sudden
Emergency Doctrine” stated in Porter v. Cook, 196
S. C. 433, 13 S. E. 2d 486 (1941), wherein the Court
held that one is not guilty of negligence if he is “sud-
denly placed in an emergency and compelled to act
instantly and makes a choice as a person of ordinary
prudence placed in such a position might make, even
thongh he does not make the wisest choice.” The Court
therein stated as follows:

“Persons who have to act in the face of sudden
and imminent peril, are not to be judged in the
light of later events, but are to be judged under
all the circumstances which surround them at the
time, by the standard of what a person of ordinary
prudence would have been likely to do under the
same conditions.”

The “Rescue Doctrine” and the “Sudden Emer-
gency Doctrine” extend to the facts in the instant case.
The blazing bucket of gasoline presented to the or-
dinary reasonable person suddenly confronted with it
a potential danger to both life and property. Immediate
action was necessary. The action taken by plaintiff in
the sudden emergency to rescue the persons whom he
reasonably believed were in danger was natural and
reasonably calculated to eliminate the danger. Under
such circumstances, I cannot find contributory neg-
ligence on the part of the plaintiff.

Based on the record in this case the plaintiff is
entitled to recover against the defendant damages in
such amount as will fairly compensate him for his
injuries and damages sustained.

IT IS, THEREFORE, ORDERED that the Clerk
enter judgment for the plaintiff against the defendant
for such amount of damages as the Court will here-
after determine and order.

a—x———eEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEe———————

24 JorDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

7. Consistently with the findings of fact and conclu-
sions of law as so amended and supplemented, the judg-
ment be amended as follows:

IT IS ORDERED AND ADJUDGED that the
plaintiff, BrueeK. Jordan, recover from the defendant,

U. S. Natural Resources, Inc., Irvington Moore Divi-

sion, such damages as the Court may hereafter deter-

This motion is based upon the grounds that the un-
disputed facts clearly manifest that the defendant by and
through its employee was negligent, reckless and wanton in
the fire and resulting damages to the plaintiff by

causing

using an acetylene torch on metal which emitted sparks to
fiy in close proximity to the bucket of gasoline located near
hoses leading from oxygen tanks on the floor of the kiln to
the acetylene torch on the catwalk; that the aforesaid neg-
ligence, recklessness and wantonness proximately caused
the fire and resulting injuries and damages to the plaintiff;

and that the plaintiff acted as a reasonably prudent person
uld h ted under the same or similar circumstances
and was not contributorily negligent and reckless in at-

aa *
tempting to remove the bucket of gasoline from his em-
S = » LEMIVVE L4if WUCASL UL aa: Lidi ‘ Lit il
=- . . — . . + . —s : + t} 2c ~
p.over s premises in order to rescue or protect the persons
worlkine therein from the danger of loss of life or serious
WOrsk1n e therein Irom the danger Or 10s: I lil : ] :
= 34397 ~ = . + +~4¢ , 7\?) 7) + m ¢ Oro
liv injuries and to protect equipment trom tne danger
ea 1. 4
f destruction or damage by fire

JOHN C. LINDSAY,

Bennettsville. South Carolina,

HENRY HAMMER,
Columbia, South Carolina,
Attorneys for Plaintiff.

APPENDIX 25

CERTIFICATE

I, Henry Hammer, one of the attorneys for plaintiff
in the above entitled action, hereby certify that on the 23rd
day of December, 1975, I served the foregoing Motion upon
Saunders M. Bridges, Esquire, attorney for defendant, by
depositing a copy of same in the U. S. mails, post-paid,
addressed to him at 318 West Palmetto Street, Florence,
South Carolina, 29501.

HENRY HAMMER.
December 23, 1975.

Civil Action No. 74-922
ORDER

This matter is before the Court upon motion of the
plaintiff for an amendment to and supplemental Findings
of Fact and Conclusions of Law. The effect of the plain-
tiff’s motion, if granted, would be to completely change the
basie Findings of Fact and Conclusions of Law on the issue
of liability. The Court has weighed the evidence carefully
in this case and finds that the evidence supports the original
Findings of Fact and the Conclusions of Law. No good
cause has been shown as to why these should be amended
or supplemented.

IT IS, THEREFORE, ORDERED that the motion be
and the same is hereby denied.

AND IT IS SO ORDERED.

/s/ ROBERT F. CHAPMAN,
United States District Judge.

January 26th, 1976,
Florence, South Carolina.

ee ee Ot ee

om decane ees mamma CO neta lll i an NN a Ne Me i or acevo

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 76-1303

BRUCE K. JORDAN, AppeE.Liant,
versus

U.S. NATURAL RESOURCES, INC.,
IRVINGTON MOORE DIVISION, Appe.ier

Appeal from the United States District Court for the
District of South Carolina, at Florence. Robert F. Chap-
man, District Judge.

Argued: April 5, 1977. Decided October 5, 1977.

Before CLARK, Supreme Court Justice,* HAYNS-
WORTH, Chief Judge, and RUSSELL, Circuit Judge.

John C. Lindsay and Henry Hammer for Appellant;
Saunders M. Bridges, Jr. and Saunders M. Bridges for
Appellee.

PER CURIAM:

The plaintiff sued to recover for injuries sustained
while attempting to remove an ignited gasoline bucket from
an enclosed kiln in which work by a number of persons was
in process. Tried without a jury, the District Judge made
findings of fact and conclusions of law, under which he
granted judgment for the defendant.

* Sitting by designation. Justice Clark died before the opinion was
prepared.
(27)

28 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

The facts giving rise to this action are as follows: The
plaintiff was employed as a foreman by the Boro Wood
Products, Ine. The manufacturing operations of Boro Wood
Products were conducted in a kiln which was about 25 feet
wide, 125 feet long, and 13 feet high from the dirt floor to
a catwalk, on which there was standing room for a man
between the catwalk and the ceiling of the building. The
catwalk was reached by a ladder located at the front of the
kiln.

Some time before plaintiff’s accident, Boro entered
into a contract with the defendant incident to the repair
and modernization of the kiln. Under the contract the de-
fendant was to furnish the materials used in the work and
a supervisor io direct the actual work. Boro, however, was
to furnish employees to assist the supervisor in the per-
formance of the work. The defendant assigned its employee
Searcy to supervise the work. Union rules, however, re-
quired Boro to furnish a supervisor for its own employees
and the plaintiff was assigned by Boro to perform this task.

At the time of plaintiff’s accident, some employees were
engaged in cleaning metal bearings with gasoline. There
were approximately two and one-half gallons of gasoline in
a five gallon bucket, which had been brought into the kiln
with Searcy’s knowledge. The bucket was situated near cer-
tain tanks containing oxygen and acetylene. Hoses extended
from these tanks up to the catwalk where they connected
with and supplied fuel for the acetylene torches being used
by Searcy in cleaning some metal. In his use of the torches,
Searcy was progressing from the front to the rear of the
kiln. As he reached a point on the catwalk where he was
largely overhead the gasoline bucket, a spark from the
torch fell into the gasoline bucket and ignited it. The bucket
burst into flame. The plaintiff entered the kiln at about this
time, saw the burning bucket, cried “fire,” and rushed to
the front of the kiln to get a short stick he had apparently
seen there. He ran this stick through the handle of the
bucket, lifted it and started out of the building with it. As
he neared the entrance of the kiln, his vision was obscured
by the flames from the gasoline, he stumbled, overturning

APPENDIX 29

the bucket, with the result that the gasoline and fire spilled
over him causing the injuries for which he sought damages.

It was plaintiff’s contention that Searcy, as defen-
dant’s agent, was guilty of negligence in permitting the gas-
oline to be placed in dangerous proximity to the acetylene
tank while he was working with an acetylene torch on the
catwalk overhead. The defendant countered with pleas of
assumption of risk and contributory negligence. It seems to
have been agreed that the dispositive issue in the case was
whether the plaintiff’s right to recover was defeated by his
own contributory negligence. The plaintiff contended that,
in resolving that issue, the district court in this diversity
action was controlled by the South Carolina decision of
Sarratt v. Holston Quarry Co. of 8. C. (1934), 174 S. C. 262,
177 S. E. 135.

Sarratt established the principle that, in determining
whether a plaintiff who “goes to the resene of one in peril
and danger” on account of the negligence of the defendant,
was guilty of contributory negligence, his conduct is to be
measured by what “the average normal person” would do
“situated under like circunistances,” 174 S. C. at 279, or, as
Justice Cordozo phrased it in the classie rescue ease relied
on by the Court in Sarratt, Wagner ». International Ry Co.
(1921), 232 N. Y. 176, 133 N. E. 437, 438, 19 A. L. R. 1, by
a “reason fitted and proportioned to the time and the
event.” In Sarratt, the defendant had installed uninsulated
electric lines of a high voltage leading down to a shed in the
quarry. The night of the accident was “marked by damp
and inclement weather.” As a result of the faulty wiring
and lack of insulation in the heavy voltage line to the shed,
the shed had become dangerously electrified. When the
night watchman at the quarry attempted, in the course of
his duties, to enter the shed, :e was knocked down by an
electric charge and “lay prostrate, in the grasp of the elec-
tric current and heavy voltage,” in fear for his life. 174 S.
C. 267-8 and 277. His “cries and wails, caused by his agony
and suffering, could be heard for some distance.” 174 S. C.
at 277. Whether the action of the plaintiff, in answering
the night watchman’s ery of distress under these cireum-

30 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

stances was contributory negligence was held by the Court
to be a question for the jury.

Unquestionably the facts im this case are no more com-
pelling for the plaintiff than were the facts in Sarratt. In
fact, the district judge found that they were much weaker
and we are inclined to agree with him. In Sarratt, there
was every indication that the watchman was in dire peril
for his life and that he could be saved by the action in which
plaintiff was engaged at the time he met his death. There
certainly was not the same obviousness of danger to human
life in this case and the district judge made a finding to this
effect is distinguishing Sarratt. Further, in Sarratt the
watchman was sending out the most agonizing cries for
rescue. Nothing like this was present in this case. The dis-
trict judge found here that none of the persons in the kiln
were “calling for help, none of them were helpless or had
been injured in the fire, no equipment of the company had
been ignited and the other people present were not unduly
excited about the blaze.” The District Court, also, found
that there was no immediate danger requiring prompt ac-
tion on the part of the plaintiff.

If the facts in Sarratt were sufficient only to make the
issue of contributory negligence on the part of the plaintiff
one for the jury, the plaintiff can claim no greater right in
this case. But, since this case was tried without a jury, that
issue was to be resolved, not by the jury, but by the district
judge. The district judge did resolve it and we can no more
reverse his findings than could an appellate court disturb
the jury’s resolution of the similar question in Sarratt.

Judgment affirmed.

ca ne

PETITION FOR REHEARING OR ALTERNATIVELY
FOR REHEARING EN BANC

United States Court of Appeals

FOR THE FOURTH CIRCUIT

Case No. 76-1303

BRUCE K. JORDAN, Appetiant,
versus

U. S. NATURAL RESOURCES, INC.,
IRVINGTON MOORE DIVISION, Appe.iee

APPEAL FROM THE Unitep States District Court
From THE District or Soutn CAROLINA
FLorENcE Drvision

PETITION FOR REHEARING

The appellant, pursuant to Rule 40 of the Federal
Rules of Appellate Procedure, respectfully petitions this
Court for a rehearing of its decision of October 5, 1977, af-
firming the judgment of the District Court, for the follow-
ing reasons:

I

This Court, in stating in its opinion that “it was plain-
tiff’s contention that Searcy, as defendant’s agent, was
guilty of negligence in permitting the gasoline to be placed
in dangerous proximity to the acetylene tank while he was
working with an acetylene torch on the catwalk overhead”
and that “it seems to have been agreed that the dispositive
issue in the case was whether the plaintiff’s right to recover
was defeated by his own contributory negligence,” appar-
ently misapprehended or overlooked one of plaintiff’s main

(31)

32 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

contentions, as appears from (1) the Complaint, (2) Mo-
tion to Amend Findings, and (3) Brief of Appellant, that
the only reasonable conclusion to be drawn from the evi-
dence was that defendant’s agent was guilty not only of
negligence but also of recklessness, and that contributory
negligence is not a defense to recklessness in accordance
with the law of South Carolina.

II

This Court, in affirming the judgment of the District
Court, misapprehended the effect of the uncontroverted
facts, overlooking that there was not one iota of evidence
to support a finding that plaintiff was guilty of contribu-
tory negligence in going to the rescue of defendant’s agent
and others by removing from the premises an open bucket
of gasoline in close proximity to rubber hoses carrying
highly inflammable and hazardous gases of oxygen and
acetylene ignited by the fault of defendant’s agent, creating
a situation which plaintiff believed to be dangerous to the
life and limb of defendant’s agent and others working in
the premises; and that the only reasonable conclusion de-
ducible from the uncontroverted facts is that the plaintiff’s
course of conduct, acting from the “most unselfish motives”
and “prompted by the noblest impulses” in going to the
rescue of others was that of a normal and reasonably pru-
dent person.

III

This Court, in affirming the finding of the District
Court that there was no immediate danger requiring
prompt action on the part of the plaintiff, apparently over-
looked that the Distriet Judge must have reached such find-
ing by viewing the evidence in retrospect and not in light
of what the plaintiff must necessarily have believed in the
haste and confusion of the moment. Such view of the evi-
dence is contrary to the principle that what the average
normal person would do in going to the reseue of one be-
lieved to be in peril or danger must be viewed in the light
of what that person “must necessarily have believed in the
haste and confusion of the moment. ... For the law mea-
sures acts done under the spur and stress of sudden emer-

a a en

APPENDIX 33

gencies ... when done for the purpose of averting serious
or even fatal consequences to others, with more indulgence
than where they are impelled by no such motive.” Wilmer
u. Rittenhouse (CA 4, 1954), 209 F. (2d) 554. Such persons
“are not to be judged in the light of later events,” Pcrter
v. Cook, 196 S. C. 433, 13 S. E. (2d) 486 (1941), nor is the
conduct of such persons to be viewed in retrospect, and
when so viewed, even though the course which the rescuer
took may have proved unnecessary. ‘+ cannot constitute con-
tributory negligence. 158 A. L. R. 19, 193. As stated in Sar-
ratt v. Holston Quarry Co. of S. C. (1934), 174 S. C. 262,
177 S. E. 135, “One going to the rescue of a person... does
not, if he is a normal person, take time to think out and
deliberately plan the safest way to protect himself from
danger in carrying out the purpose of his act: that is, to
rescue a person in danger.”

IV

This Court, in affirming the judgment of the District
Court, held that “we can no more reverse his findings [the
District Judge’s] than could an appellate court disturb the
jury’s resolution of the similar question in Sarratt.” In so
holding, this Court apparently overlooked or misappre-
hended the standard of appellate review applicable in re-
viewing a district court’s findings of fact *, particularly
where, as here, the findings and conclusions of the District
Court were based upon uncontroverted material facts.

* The applicable standerd of review is clearly stated in Daniel H.
Tuttle v. American Oil Co., 292 F. (2d) 123 (CA 4, 1961), quoting from
McAllister v. United States, 1954, 348 U. S. 19, 20, 75 S. Ct. 6, 99 L.
Ed. 20, as follows:

“... 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.”
and in Western Oil Co. v. Hodger Co. (CCA 5, 1955), 218 F. (2d) 158,
161, as follows:

“. .. This Court has held, in conformity with this rule, that it may
reverse ‘(1) Where the findings are without substantial evidence
to support them; (2) Where the Court misapprehended the effect
of the evidence; and (3) if, though there is evidence which if credi-
ble would be substantial, the force and effect of the testimony con-
sidered as a whole convinces that the finding is so against the great
preponderance of the credible testimony that it does not reflect or
represent the truth and right of the case.’”

34 JORDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

Vv

This Court, in affirming the reasoning of the District
Court that plaintiff was guilty of contributory negligence
because “none of the persons in the kiln were ‘calling for
help, none of them were helpless or had been injured in the
fire, no equipment of the company had been ignited and the
other persons were not duly excited about the blaze’ ”, over-
looked the uncontroverted evidence that one of the persons,
upon seeing the blaze, was afraid of the fire, which “looked
like it would get me, so I figured I would get out of there,”
the defendant’s agent was oblivious to the fire as he was
working on the catwalk overhead cutting steel with an acet-
ylene torch, and none of the persons were helpless or had
been injured in the fire because of the prompt action of the
plaintiff in removing the blazing bucket before it could do
any damage or harm.

PETITION FOR REHEARING EN BANC

The appellant, in the alternative, pursuant to Rule 35
of the Federal Rules of Appellate Procedure, respectfully
petitions this Court for a rehearing en banc of its decision
of October 5, 1977 in the above entitled case for the reasons
set forth above and for the following additional reasons:

I

Due to the death of Mr. Justice Clark after hearing
oral argument as a member of the three-judge panel and
before the opinion was prepared, appellant was deprived
of the right and benefit of having his case fully considered
and determined by a panel of three judges of this Court,
particularly in light of the fact that nowhere in the opinion
does there appear any discussion or treatment of one of the
main questions raised by appellant of whether defendant’s
agent was guilty of recklessness.

APPENDIX 35

II

The two-judge panel of this Court, in holding that it
can no more reverse the finding of the District Court than
could an appellate court disturb the jury’s resolution of a
similar question, apparently applied a standard of appel-
late review of a district judge’s findings, particularly
where, as here, it is based upon uncontroverted facts, in
conflict with the standard of review enunciated by the
United States Supreme Court in McAllister v. United
States (1954), 348 U. S. 19, and heretofore applied by this
Court, Daniel H. Tuttle v. American Oil Co. (CA 4, 1961),
292 F. (2d) 123 and MacMullen v. 8S. C. Electric and Gas
Co., 312 F. (2d) 662 (CA 4, 1963).

The allowance of this petition will afford all judges of
this Court the opportunity to resolve the conflict and secure
or maintain uniformity of its decisions.

III

With all due deference to the District Judge, the un-
derlying rationale and philosophy of his decision critical of
and condemning the plaintiff by holding him guilty of con-
tributory negligence for his conduct in going to the rescue
of persons, including the defendant’s agent, who was guilty
of creating a situation which the plaintiff reasonably be-
lieved placed such persons in danger of life or serious
bodily harm, offends the traditional notions of justice and
the high regard that society and the law hold for human
life, as is expressed by the courts with such poignancy in
Maryland Steel Co. v. Marney, 88 Md. 482, 42 Atl. 60 (1898),
as follows:

“The law has so high a regard for human life that it
will not impute negligence to an effort to preserve it,
unless made under such circumstances as to constitute
rashness, in the judgment of prudent persons.’.. . In
Linnehan v. Sampson, 126 Mass. 506, where the court
said: ‘The law does not require cowardice or inaction
in such a state of things, and it does not follow, as a
matter of law, that in encountering the danger he was
necessarily guilty of a want of due and reasonable
eare.’... The plaintiff in this case, though moving in

36 JoRDAN, PETITIONER, v. U. S. NATURAL REs., INC., RESPONDENT

a humble sphere, has given an example of genuine and
heroic manhood, and has demonstrated that in his esti-
mation ‘the duties of life are more than life.’ ”;

in Corbin v. City of Philadelphia, 195 Pa. St. 461, 468, 469,
45 A. 1070 (1900), as follows:

“*A rescuer, one who, from the most unselfish motives,
prompted by the noblest impulses that can impel man
to deeds of heroism, faces deadly peril, ought not to
hear from the law words of condemnation of his brav-
ery, because he rushed into danger, to snatch from it
the life of a fellow creature, imperilled by the negli-
gence of another; but he should rather listen to words
of approval, unless regretfully withheld on account of
the unmistakable evidence of his rashness and impru-
dence. This conscience and reason approve, and the
best judgment of thoughtful and intelligent judges has
declared it to be the law of the land.’ ”;

and in Breslin v. State, 189 Mise. 547, 72 N. Y. S. (2d) 63
(1947), involving a factually similar situation, as follows:

“Tt seems to us that the State is in effect saying that
the claimant, upon perceiving the danger, should forth-
with have run away, leaving the instructor to shift for
himself with the blazing barrel as best he might, what-
ever the consequence to him or the school building. We
do not propose to countenance any such cowardly
proposition, and do not believe it to represent the law.
The boy, whatever his previous and subsequent record,
did the natural and manly thing in attempting to help.
Had the joint endeavor been successful, undoubtedly
he would have been commended for his quick thinking
and bravery. But the barrel tipped over, so, instead,
he is guilty of contributory negligence.”

The true effect of the rationale and philosophy of the
District Judge would be to discourage traditional notions
of bravery exercised by persons acting “from the most un-
selfish motives” and “prompted by the noblest impulses”
from going to the rescue of others who may otherwise suf-
fer death or serious bodily harm. This is so, particularly

APPENDIX 37

when the rescue may not be successful and the course of the
rescuer’s conduct is viewed in retrospect, and when so
viewed, may have proved unnecessary.

The allowance of this petition for rehearing en banc
would afford all judges of this Court the opportunity to
review and resolve the problems herein on an important
question affecting the loss of human life which otherwise
may be saved.

CONCLUSION

For all of the reasons set forth above and those in the
Brief of Appellant heretofore filed, it is respectfully urged
that a hearing be granted under Rule 40 of the Federal
Rules of Appellate Procedure, or, in the alternative, a re-
hearing en banc be granted under Rule 35 of the Federal
Rules of Appellate Procedure, and that upon such hearing
the judgment of the District Court be reversed and the
cause be remanded to the District Court with directions to
assess damages in favor of plaintiff.

Respectfully submitted,

/s/ JOHN C. LINDSAY,
Bennettsville, South Carolina,

/s/ HENRY HAMMER,
Columbia, South Carolina,
Attorneys for Appellant.

October 12, 1977.

CERTIFICATE OF COUNSEL

We hereby certify that the foregoing Petition for Re-
hearing or Alternatively for Rehearing En Banc is pre-
sented and filed in good faith and not for delay.

/s/ JOHN C. LINDSAY,
Bennettsville, South Carolina,

/s/ HENRY HAMMER,
Columbia, South Carolina,

Attorneys for Appellant.
October 12, 1977.

mee

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 76-1303

BRUCE K. JORDAN, Appe.iant,
versus

U.S. NATURAL RESOURCES, INC.,
IRVINGTON MOORE DIVISION, Appe.iee

ORDER

Filed November 7, 1977

Upon consideration of the appellant’s petition for re-
hearing and suggestion for rehearing en banc, and no judge
having requested a poll on the suggestion for rehearing en
banc,

It is aceordingly ADJUDGED and GRDERED that
the petition for rehearing and suggestion for rehearing en
banc are denied.

Entered at the direction of Judge Russell with the con-
eurrence of Chief Judge Haynsworth.

For the Court,

WILLIAM K. SLATE, II,
Clerk.

A True Copy, Teste:
WILLIAM K. SLATE, IT, Clerk,

By FAYE L. SMITH,
Deputy Clerk.

(39)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0255%3A1. Public record. Not legal advice.