256 F.2d 786 (7th Cir. 1958), 12271, Voytas v. United States

Docket Nº:12271.
Citation:256 F.2d 786
Party Name:Joseph VOYTAS, Individually and as Administrator of the Estate of Edward J. Voytas, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:June 26, 1958
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 786

256 F.2d 786 (7th Cir. 1958)

Joseph VOYTAS, Individually and as Administrator of the Estate of Edward J. Voytas, deceased, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 12271.

United States Court of Appeals, Seventh Circuit.

June 26, 1958

Page 787

Kenart M. Rahn, Chicago, Ill., for appellant.

Robert Tieken, U.S. Atty., Richard C. Bleloch and John Peter Lulinski, Asst. U.S. Attys., Chicago, Ill., of counsel, for appellee.

Before DUFFY, Chief Judge, and SCHNACKENBERG and PARKINSON, Circuit judges.

DUFFY, Chief Judge.

Plaintiff brought this action individually and as administrator of the estate

Page 788

of Edward J. Voytas, deceased, to recover damages from the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) and 28 U.S.C.A. Ch. 171. The trial court made findings of fact and conclusions of law. It decided the issues in favor of the defendant.

Edward, who was the eight-year-old son of plaintiff, was killed while walking upon a sidewalk in Chicago, Illinois, by a metal fragment which was hurled in his direction as the result of an explosion of Composition C-3 which had been detonated by one William Barnabee, aged seventeen. Private Mifflin C. Schat, United States Army, who had been in Chicago on leave from the Demolition and Mine Section of Headquarters Company, Second School Battalion, Engineers Center Regiment, Fort Belvoir, Virginia, had given the explosive to Barnabee.

Fort Belvoir was and is a military installation of the United States and was used in part for training military personnel in the use and handling of explosives and demolition equipment. Schat was a 'set-up' man and 'ammo' guard at Fort Belvoir. As a set-up man Schat was authorized to handle the equipment used in connection with explosives. As ammo guard his duty was to protect explosives from pilferage. He also assisted a truck driver in returning unused explosives from a demolition area to the storage magazine after regular duty hours.

On or about May 1, 1953, while at the magazine building for the purpose of unloading explosives, Schat went inside the building and stole several packages or blocks of Composition C-3 from shelves where the explosive was stored. He also took some blasting caps and a length of By concealing the explosives and other items in his clothing, he escaped detection by a guard who was patrolling the outside area of the magazine's wired and locked enclosure. He concealed the stolen material in his foot locker at his quarters for several days before he left for Chicago on leave. When Schat arrived in Chicago he was wearing civilian clothes as he was permitted to do while on leave, and he carried the explosives with him. Severals days later he exploded some of the Composition C-3 upon a railroad track in the presence of William Barnabee and others. The day before he left Chicago to return to Fort Belvoir, he gave Barnabee the remainder of the Composition C-3, and also the remaining caps and fuses. Schat had left Chicago at the time when Barnabee exploded the charge which resulted in young Voytas' death.

The Federal Tort Claims Act gives the District Court jurisdiction of civil actions against...

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