Martin v. U.S., 78-2789

Decision Date11 May 1981
Docket NumberNo. 78-2789,78-2789
Citation649 F.2d 701
PartiesMildred MARTIN, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John F. Cordes, Asst. U. S. Atty., Los Angeles, Cal., for defendant-appellant.

David Silverton, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG and FERGUSON, Circuit Judges, and EAST, * District Judge.

HUG, Circuit Judge:

Plaintiff Mildred Martin brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), for injuries she sustained when a bath tub downspout broke in the house her mother had recently purchased from a government agency. The Government appeals on evidentiary grounds, and on the ground that the FTCA is inapplicable to a cause of action founded in a breach of contract. We affirm.

I

Mrs. Martin's mother purchased a house which had been repossessed by the Veterans Administration (VA). The VA, before putting the house on the market, hired a property manager to prepare it for sale. He inspected it and recommended certain repairs be made. The VA approved those repairs, but because of fear of vandalism, required that the purchaser occupy the house before the repair work would begin. The house was occupied on April 28, 1975, and the repairs agreed upon were underway and nearly completed before April 30, 1975. Additional repairs recommended by the plumbing contractor were underway during early May, 1975.

On May 7, 1975, Mrs. Martin tripped and fell while entering the bathtub. As she fell, she grabbed at the tub's porcelain downspout; it shattered, causing serious injury to her hand. She brought suit in the district court, alleging the tortious breach of a contractual duty to repair the premises and make them habitable and seeking damages in excess of $10,000. The district court entered judgment for Mrs. Martin and awarded damages in the amount of $35,000.

The principal questions raised on appeal are whether the district court: (1) erred in using parol evidence to find that a contractual duty on the part of the Government did exist; and (2) erred in finding jurisdiction and awarding damages in excess of

$10,000 under the FTCA in a case grounded on the tortious breach of a contractual duty.

II PAROL EVIDENCE

The determination of the district court that the contract is "uncertain enough on its face to allow parol evidence" is a conclusion of law freely reviewable by this court. United States ex rel. Union Building Materials Corp. v. Haas & Haynie Corp., 577 F.2d 568, 572 (9th Cir. 1978). The relevant portion of the plumbing repair schedule reads as follows:

"LAV: Install 2 single faucets, trap arm, 2 angle stops, supply tubes, P.O. plug

"WATER CLOSET: Install a ballcock, tank bell, lift wires

"TUB: Rewasher tub faucet and install a shower head and arm

"LAV $ 2: Install 2 single faucets, trap arm, 2 angle stops and supply tubes, P.O. plug

"WATER CLOSET $ 2: Install a BT $ B515 toilet 14 rough, seat, angle stop and supply tube."

Martin's cause of action under the FTCA rests upon the existence of a duty of care owed by the Government to Martin and arising out of a contract to repair the bathtub spout and other plumbing fixtures. It is therefore crucial to understand just what was to be repaired.

The cryptic form of the repair schedule requires interpretation of ambiguous terms and abbreviations. Additional ambiguity lies in the use of "LAV" and "LAV $ 2" as labels for the bathrooms and for the wash basins. The downstairs bathroom had a single spout system in the basin, whereby hot and cold water mixed together and flowed out one opening. The upstairs had an older-type double-faucet system where hot and cold water flowed from individual spouts. Thus, it would be very reasonable, standing in the "LAV" (the room) and seeing a single-spout fixture in the "LAV" (the basin), to understand the "2 single faucets" listed on the repair order to mean a replacement for the basin fixture and another "single faucet" in the only other logical place: the bathtub. The similarity in language for LAV $ 2 is explained by the need to replace the two individual taps in the basin there. The Government's contention is that the repairs opposite "LAV" refer only to the basin in that room.

Because the meaning of the terms on the repair list can be construed reasonably in more than one way, and because a meeting of minds would almost certainly require some explanation, most likely including a tour of the rooms with an on-the-spot description of the work to be done, we find the contract was ambiguous as to the scope of the plumbing repairs to be done by the Government. In this situation, then, it was proper for the district court to admit extrinsic evidence for the purpose of clarifying the terms of the repair agreement.

Interpretation of an ambiguous contract presents a mixed question of fact and law. Libby, McNeill and Libby v. City National Bank, 592 F.2d 504, 512 (9th Cir. 1978). The district court has made some determinations on the circumstances surrounding the contractual agreement. Those determinations are findings of fact and are reviewed using the clearly erroneous standard. The district court has also interpreted the meaning of the words of the contract in light of the surrounding circumstances. This presents a question of law freely reviewable by this court. See Kittitas Reclamation Dist. v. Sunnyside Valley Irr. Dist., 626 F.2d 95, 98 (9th Cir. 1980).

After hearing the extrinsic evidence, the district court determined that the spout was cracked and discolored before the accident; that Mrs. Martin and her mother believed it to be included on the repair list and expected it to be replaced; and that the Government's behavior in replacing the spout at its own expense after the accident indicated that it believed itself obligated to do so. As a result of these reasonable determinations, the district court interpreted the contract to include an obligation to repair the tub spout. We find no error in that interpretation.

III THE FEDERAL TORT CLAIMS ACT

The Government's assignment of error here is two-fold: (1) the present claim is contractual in nature; therefore, the FTCA does not provide jurisdiction in the district court; and (2) even if the claim were to be examined under the FTCA, the claim is not a tort under California law.

A. THE NATURE OF THE CLAIM

The Government contends that the claim against it sounds in contract. It points out the Tucker Act provides the district court with jurisdiction only for claims in contract not exceeding $10,000. Thus, it argues that this case action could have been brought only in the Court of Claims because damages in excess of $10,000 were sought. In support of this position, the Government first cites cases that discuss the legislative intent to limit the FTCA to "ordinary common-law torts," Dalehite v. United States, 346 U.S. 15, 28, 73 S.Ct. 956, 964, 97 L.Ed. 1427 (1953), and not "to visit the Government with novel and unprecedented liabilities." Feres v. United States, 340 U.S. 135, 142, 71 S.Ct. 153, 157, 95 L.Ed. 152 (1950), quoted in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1977). While the Government has accurately represented the import of those cases, it inaccurately uses them to conclude that the FTCA was improperly applied in the present situation. The Supreme Court's concern there was only that the United States' waiver of immunity be limited to liability for claims grounded in a negligent act leading to a traditional tort. Dalehite involved an absolute liability claim stemming from an ultrahazardous activity, and Feres and Stencel Aero concerned injuries to military personnel. The special problems present in those areas are not relevant here.

The Government also relies on Woodbury v. United States, 313 F.2d 291 (9th Cir. 1963) to dispose of the question of the FTCA's applicability to situations involving the breach of a contractual duty. The significant passage in Woodbury reads:

Many breaches of contract can also be treated as torts. But in cases such as this, where the "tort" complained of is based entirely upon breach by the government of a promise made by it in a contract, so that the claim is in substance a breach of contract claim, and only incidentally and conceptually also a tort claim, we do not think that the common law or local state law right to "waive the breach and sue in tort" brings the case within the Federal Tort Claims Act.

313 F.2d at 295. The factual circumstances of Woodbury, however, are readily distinguishable from the case at hand. The cause of action in Woodbury was based on the breach of the Government's fiduciary duty arising out of a contract to arrange long term financing for a home builder. The result of the alleged tortious breach was severe economic harm to the builder.

The other cases the Government cites for the same principle are all similarly contractual in nature, and allege the same type of economic damages. 1 While the Government would have us place this case in the same category, we feel it is more accurately characterized as analogous to Aleutco Corp. v. United States, 244 F.2d 674 (3d Cir. 1957).

In Aleutco, the purchaser of surplus materials from the Government brought suit for conversion when the Navy refused to release the goods. Because an essential element of conversion is ownership, and because Aleutco showed ownership by way of a sales contract, the cause of action had its basis in contract. However, as the Third Circuit noted, conversion is a classic case in tort: to deny jurisdiction in the district court merely because one element of the case is based on a contractual relationship would not further the statutory distinction made between those cases to be brought in the Court of Claims and those...

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