United States v. Praylou

• Citation: 208 F.2d 291
• Decision Date: 09 November 1953
• Docket Number: No. 6631,6644.,6631
• Parties: UNITED STATES v. PRAYLOU et al. UNITED STATES v. WALKER.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

208 F.2d 291 (1953)

UNITED STATES v. PRAYLOU et al.

UNITED STATES v. WALKER.

Nos. 6631, 6644.

United States Court of Appeals Fourth Circuit.

Argued October 19, 1953.

Decided November 9, 1953.

Morton Hollander, Atty., Department of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Ben Scott Whaley, U. S. Atty., Charleston, S. C., Russell D. Miller, Asst. U. S. Atty., and Paul A. Sweeney, Attorney, Department of Justice, Washington, D. C., on the brief), for appellant.

John D. Lee and M. M. Weinberg, Jr., Sumter, S. C. (Lee & Moise, Henry B. Richardson and M. M. Weinberg, Sumter, S. C., on the brief), for appellees.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and WILKIN, District Judge.

PARKER, Chief Judge.

These are appeals by the United States from judgments rendered under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, for damages caused by the falling near a government airfield within the State of South Carolina of airplanes operated by employees of the government on government business. In No. 6631 a government plane fell and exploded on the premises of one Sandy Praylou destroying his barn and live stock and seriously injuring three of his children. In No. 6644 the plane fell and exploded near a house on which the plaintiff Edward Walker was working and caused him to sustain injuries. The trial judge held that the government was liable in both cases under the South Carolina statute which enacts the Uniform Aeronautics Act as the law of South Carolina. 36 Statutes of South Carolina 220-222. Section 5 of that Act, being section 7104 of the Code of 1942, section 2-6 of the Code of 1952, provides:

"The owner of every aircraft which is operated over the land or waters of this State is absolutely liable for injuries to persons or property on the land or water beneath caused by ascent, descent or flight of the aircraft or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured or of the owner or bailee of the property injured. * * *"

The contention of the government is that because this section imposes absolute liability on the owner of aircraft for injuries caused by its flight, irrespective of negligence, the government may not be held liable thereunder by reason of the provision of the Tort Claims Act, which submits the government to the liability of an individual only where there is a negligent or wrongful act or omission of an employee of the government. The applicable provisions of the Tort Claims Act are 28 U.S.C. §§ 1346(b) and 2674 which are as follows:

"§ 1346(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the District Court for the Territory of Alaska, the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

"§ 2674. The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

The weakness of the position of the government is that it overlooks the fact that the effect of the South Carolina statute is to make the infliction of injury or damages by the operation of an airplane of itself a wrongful act giving rise to liability. Whether the United States could be held liable under the statute as owner of a plane which it was not operating, we need not stop to inquire, since it is admitted that the planes here were being operated by employees of the government within the scope of their authority. So far as applied to these cases, the statute does no more than adopt the common law rule of liability. As we said in D'Anna v. United States, 4 Cir., 181 F.2d 335, 337:

"One who flies an aeroplane is opposing mechanical forces to the force of gravity and is engaged in an undertaking which is fraught with the gravest danger to persons and property beneath if it is not carefully operated or if the mechanism of the plane and its attachments are not in first class condition. At common law, the hazardous nature of the enterprise subjected the operator of the plane to a rule of absolute liability to one upon the ground who was injured or whose property was damaged as a result of the operation. A.L.I. Restatement Torts secs. 519, 520, d; Prosser on Torts p. 452."

See also 6 Am.Jur. 39-40, notes 99 A. L.R. 176, 83 A.L.R. 336, 69 A.L.R. 320.

It should be noted that the liability asserted here against the government is not one arising out of the mere possession of property, but one created by law for the invasion of personal and property rights. It is clearly within the power of the state to enact legislation imposing such liability, and it is equally clear that any such invasion of rights, whether intentional or not, can be made a wrongful act on the part of the one guilty of the invasion, and is made such by a statute imposing liability therefor. As said in the A.L.I. Restatement of Torts, p. 16, the word "tortious", which means wrongful, "is appropriate to describe not only an act which is intended to cause an invasion of an interest legally protected against intentional invasion, or conduct which is negligent as creating an unreasonable risk of invasion of such an interest, but also conduct which is carried on at the risk that the actor shall be subject to liability for harm caused thereby, although no such harm is intended and the harm cannot be prevented by any precautions or care which it is practicable to require".

The old rule of the common law, cujus est solum ejus est usque ad coelum, has given way to the rule that there is a right to navigate the air at a sufficient distance above the surface of the earth not to interfere with persons or property beneath. United States v. Causby, 328 U.S. 256, 260, 66 S.Ct. 1062, 90 L.Ed. 1206; Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817, 99 A.L.R. 158; Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E. 385, 69 A.L.R. 300; United States Air Commerce Act, 44 Stat. 568, 49 U.S.C.A. § 171 et seq. And this is recognized in the Uniform Aeronautics Act adopted as law in the State of South Carolina, which expressly authorizes...