United States v. Hull

• Decision Date: 19 March 1952
• Docket Number: No. 4622.,4622.
• Parties: UNITED STATES v. HULL
• Court: U.S. Court of Appeals — First Circuit

195 F.2d 64 (1952)

UNITED STATES v. HULL

No. 4622.

United States Court of Appeals First Circuit.

March 19, 1952.

Morton Hollander, Attorney, Department of Justice, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., George F. Garrity, U. S. Atty., and William J. Koen, Asst. U. S. Atty., both of Boston, Mass., and Paul A. Sweeney and Massillon M. Heuser, Attorneys, Department of Justice, both of Washington, D. C., on brief), for appellant.

Joseph S. Kennedy, Dedham, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

An appeal has been taken by the United States from a judgment for the plaintiff in the sum of $750 upon a complaint under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. The case is a simple one.

Around nine o'clock on the morning of October 11, 1948, the plaintiff entered the United States post office at Medfield, Massachusetts, to purchase some stamps. She went to the window marked "Stamps, General Delivery", which was open for business. There was the usual iron grille which came down to about two inches from the counter, leaving sufficient space for the customer to slide the money to the clerk and for the clerk to slide the stamps to the customer. Behind the grille was a window consisting of a frosted pane set in an oak frame one-half inch thick. The window was up at the time, though the clerk was not there. Hearing someone coming, the plaintiff, with her left hand, slid the money under the grille. At that moment the window dropped suddenly on the projecting tips of plaintiff's fingers causing the injuries for which she has recovered judgment. The evidence to the foregoing effect was convincing and indeed unquestioned.

The retaining mechanism was described in the evidence as a "pinch latch" which, when pinched together by the operator, automatically caused a pin to be retracted and thus to permit the window to be raised or let down. The window had to be raised all the way, otherwise the release of manual pressure on the pinch latch would not permit the retracted pin to slide across into a slot, or on to a small shelf or peg, and thus to secure the window from falling.

The original complaint charged in general terms "that said movable window and the retaining mechanism which should have held it up were then and there permitted to exist in a dangerous condition; that the existence of said dangerous condition was known to the defendant, its agents and servants or should have been known by them to exist had reasonable and proper inspections thereof been made." This charge was particularized by the plaintiff in answer to an interrogatory propounded by the defendant requiring the plaintiff to specify the manner in which the movable window with its retaining mechanism was negligently permitted to exist in a dangerous condition. Plaintiff answered that this was "by reason of the fact that in spite of previous notifications by the Postmaster to the effect that it was defective the Post Office Department did nothing to remedy the defect."

Since the premises were entirely in the control of the defendant, it is not surprising that plaintiff was unable to establish just why the window fell or to pin a fault of commission or omission on any identified employee of the government. Plaintiff introduced no testimony tending to prove that the postmaster knew of a defect in the retaining mechanism and that he had reported such defect to the Post Office Department. The postmaster, testifying as a defense witness, stated that prior to the accident he had received no report of any difficulty in the operation of the window nor any complaint that the window did not stay in a lifted position once it was raised. The defendant did not, however, offer any explanation of why the window fell without warning, as it undoubtedly did.

After the trial was over, and before the district judge had made his findings, plaintiff moved to be allowed to amend her complaint so as to add a count charging in general terms, with no attempt at further specification, that "by reason of the negligence of the defendant, its agents, servants or employees, a heavy movable window descended on her left hand with great force and violence".

It may be that such amendment was unnecessary; that plaintiff, though unable to sustain a charge of negligence in the specified particular asserted in her answer to the interrogatory, was nevertheless entitled to fall back upon a more generalized inference of negligence, if such inference was warranted under the proved circumstances of the accident. See Prosser, The Procedural Effect of Res Ipsa Loquitur, 20 Minn.L.Rev. 241 (1936); McDonough v. Boston Elevated Ry. Co., 1911, 208 Mass. 436, 94 N.E. 809; Rapp v. Butler-Newark Bus Line, Inc., 1927, 103 N.J.L. 512, 138 A. 377, affirmed 1928, 104 N.J.L. 444, 140 A. 921. At any rate, it does not appear that the government opposed the plaintiff's motion to amend. The court allowed the amendment, and the government did not claim surprise or prejudice because of such allowance, or ask that the trial be reopened to enable the defendant to offer evidence to explain how the window came to fall consistently with due care on the part of the various employees of the defendant. Such evidence, if defendant had any to offer, would of course tend to repel a generalized inference of negligence which might otherwise be drawn from the mere happening of this type of accident.

The district judge properly ruled that the plaintiff had failed to prove the specific negligence charged in her answer to the interrogatory. But he concluded that, under the amended complaint, the case was a proper one for the application of the doctrine of res ipsa loquitur; that the accident "would not have occurred in the ordinary course of things if the Post Office Department, having control of the window, had used proper care." Defendant had pleaded contributory negligence as a defense, but there was not the slightest evidence of that, and the court found that the window fell upon plaintiff's fingers "without any fault on her part". Cf. Jesionowski v. Boston & Maine Railroad, 1947, 329 U.S. 452, 458, 67 S.Ct. 401, 91 L.Ed. 416.

Contrary to appellant's contention, we think that the present is a routine case for the application of the doctrine of res ipsa loquitur in its most unsophisticated form. The plaintiff needed only to satisfy the trier of the facts that the balance of probabilities was in her favor as to each element of her case. From the sudden and unexplained falling of the window on the customer's fingers, defendant being in control of the premises, was it rational to infer that, more likely than not, the accident was attributable to some negligence or wrongful act or omission of defendant's employees in the scope of their employment? The answer to this question involved an exercise of factual judgment, based on ordinary, everyday experience. It is our judgment that such an inference was a rational one in this case, and that the generalized inference of negligence drawn by the trial judge cannot be said to be "clearly erroneous". Rule 52(a), F.R. C.P., 28 U.S.C. Cf. Jesionowski v. Boston & Maine Railroad, supra; San Juan Light & Transit Co. v. Requena, 1912, 224 U.S. 89, 98, 32 S.Ct. 399, 56 L.Ed. 680; Chiuccariello v. Campbell, 1912, 210 Mass. 532, 535, 96 N.E. 1101, 1102, 44 L.R.A.,N.S., 1050; Davies v. Boston Elevated Ry. Co., 1915, 220 Mass. 200, 107 N.E. 918; Michenen v. Hutton, 1928, 203 Cal. 604, 608, 265 P. 238, 239, 59 A.L.R. 480.

The use of the Latin phrase "res ipsa loquitur" in this connection may be unfortunate, as suggesting that some exotic doctrine is involved. It is nothing more than a case of circumstantial evidence, where plaintiff has proved enough "to get to the jury", and where the inference of negligence, though not necessarily a required one, is a permissible one on the balance of probabilities. See Prosser on Torts § 43 (1941); Sweeney v. Erving, 1913, 228 U.S. 233, 238-240, 33 S.Ct. 416, 57 L.Ed. 815.

Of course it is unnecessary, in order to recover from the employer, for the plaintiff to establish just which employee was at fault, and in what specific respect. It is enough if the trier of the facts is satisfied, on the balance of probabilities, that the injury was due to some negligent act or omission of some employee for whom the employer was responsible. In the present case, if the testimony of the postmaster is believed, the possibility may be eliminated that the postmaster himself had knowledge of a defect in the retaining mechanism and had reported it to the Post Office Department. But it still may be that some other employee knew of a defect and failed to report it, or that some employee, having the duty of inspection or maintenance, or both, failed to use care to discover the defect or to remedy it, or that the employee who had raised the window on the morning in question, assuming the retaining mechanism to be in order, negligently failed to raise the window to the full height so that the automatic device could operate to secure the window against falling. In other words, notwithstanding the testimony of the postmaster, we think it was still a permissible inference that the sudden falling of the window was due to some negligent act or omission of some employee for whom the defendant was responsible.

Appellant's other contention is that, under the Federal Tort Claims Act, the United States can be held liable in tort only where some "employee himself is legally liable to the person injured"; that though an agent or servant of the land occupier would be subject to liability for negligently creating a dangerous condition on the premises likely to injure a third person — as would be the case here if the postal employee...