Beasley v. United States

• Court: U.S. District Court — District of South Carolina
• Writing for the Court: Ben Scott Whaley and Russell D. Miller, both of Charleston, S. C., for defendant
• Citation: Beasley v. United States, 81 F.Supp. 518 (D. S.C. 1948)
• Decision Date: 23 December 1948
• Docket Number: 1902.,Civ. A. No. 1901
• Parties: BEASLEY v. UNITED STATES. BEASLEY et al. v. UNITED STATES.

81 F. Supp. 518

BEASLEY v. UNITED STATES.

BEASLEY et al. v. UNITED STATES.

Civ. A. Nos. 1901, 1902.

United States District Court E. D. South Carolina, Charleston Division.

December 23, 1948.

COPYRIGHT MATERIAL OMITTED

J. C. Long, Arthur Rittenberg, and Thomas P. Bussey, all of Charleston, S. C., for plaintiffs.

Ben Scott Whaley and Russell D. Miller, both of Charleston, S. C., for defendant.

WARING, Chief Judge.

The two above entitled cases are brought against the United States under the Federal Tort Claims Act, Title 28 U.S.C.A. § 931 et seq.,¹ The first is brought on behalf of William R. Beasley, a minor, by his Guardian ad Litem, for personal injuries. The second is brought by J. O. Beasley and Martha R. Beasley, parents of the said William R. Beasley, for loss of services, expenses of medicines, medical treatment, hospitalization and other items of damage. The two cases were heard together since they arise out of the same state of facts.

The cases are claims against the United States for damages and injuries suffered by William R. Beasley, a child of the age of 10 years on April 1, 1947, as a result of the explosion of powder on the United States Government Quarantine Reservation situate on James Island, Charleston County, South Carolina. The Quarantine Station is owned by and under the supervision and control of the United States; the officer in charge, then and now, being Dr. Joseph Bolten, medical officer in charge. Dr. Bolten has been in charge of the station since January 31, 1946.

It appears that a number of the officers and employees of the Quarantine Station reside upon the premises: Among others, Dr. Bolten and his wife, who occupy the medical officer's residence; J. O. Beasley, the chief clerical administrative assistant, the chief official in charge next to the medical official; and Marion L. Burn, a pilot. The plaintiff, William R. Beasley is the son of J. O. Beasley and lives with his parents. Marion L. Burn has a family, including a son Marion L. Burn, Jr., who is and was at the time of the explosion a student at the Citadel, a South Carolina Military Academy, located in Charleston. It appears that the last named young man, Marion L. Burn, Jr., with the help and assistance of a friend and fellow student of his, Howard R. Jacobs, Jr., built a small cannon, somewhat similar to a harpoon gun, which was referred to in the testimony as a toy cannon. It was some two or three feet long and was made of a brass cylinder surrounded by a cast iron ring and molten lead poured between the two so as to reinforce and protect the brass barrel. This toy cannon was used by the young men for firing charges and shooting small projectiles. They used a propulsive charge of black powder ignited by a spark created by a shot gun shell. It appears that this cannon had been in course of construction over a considerable period of time and had been fired fairly frequently, perhaps as many as two dozen times. Apparently, there was no concealment of this gun and its use was known to many of the persons living or employed on the station, including young Burn's father and young Beasley's father. Dr. Bolten disclaims any knowledge of the gun but various witnesses state that they had frequently heard explosions as of firing but as there was considerable hunting and target shooting in the vicinity no particular attention had been paid to it. The young men who operated the cannon testified that they had obtained the powder for the charges from an old Civil War shell that had been dug up, probably on Morris Island in this county, and had been de-activated and taken apart in the rear of the grounds of the Citadel by them and some of their associates. This information had been imparted to Marion L. Burn the pilot.

The Quarantine Station, being under the Public Health Service, the public may be admitted or not as directed. Certain parts of the grounds are supposed not to be visited, but generally speaking, the place is open during the daytime and visitors are allowed to go about and wander around the grounds. Considerable numbers of visitors go there since it has an excellent vista of Charleston Harbor, the City of Charleston, Sullivans Island, Fort Moultrie and particularly Fort Sumter. The site of the station is historically interesting since it was the location of the original Fort Johnson and there are remnants of buildings and relics of the War Between the States. There is one large cannon which was used by the Confederate forces in the Civil War and which is placed as an ornament and monument near the waterfront and immediately opposite the medical officer's residence. This old cannon has a length of approximately nine feet, and an interior muzzle diameter or bore of ten inches. It is said to have been originally a smooth bore gun but was later rifled. On April 1, 1947, it had inserted in its muzzle an old shell of the type that had been used to be fired in it, the point or nose of this shell being approximately even and flush with the muzzle of the gun. The gun was not mounted on any carriage but was lying on supports on the ground and had been silvered or painted with aluminum paint. Some plastic material had been put over the nose of the shell. It is uncertain how long the shell was in the muzzle of the gun but one witness testified that he recollected when there was nothing of this kind there since they had used the empty gun barrel to stow the post flag when it was hauled down in the evening. There were a number of shells of similar character lying on the ground near this gun some years ago but owing to the fact that visitors and tourists came to the spot frequently and it was reported that one or more of the shells had been taken away, the medical officer who was then in charge (one of Dr. Bolten's predecessors) had the shells stored away under the medical officer's house and presumably the one which we have discussed above was placed in the muzzle of the gun in the position where it was on the day of the explosion.

And so we now go to the day of the explosion which caused the death of one young man and the maiming of another. It was on April 1, 1947, that young Jacobs came to the Quarantine Station to visit his friend Marion Burn, Jr, (whose nickname was "Sonny" and was so called by most of the witnesses). They had conceived the idea of obtaining powder for their toy cannon by opening up the old shell which they had seen in the mouth of the Confederate cannon. In the afternoon of that day they proceeded to attempt to remove the fuse from the nose of the shell. According to the testimony they determined that the fuse had been corroded and could not be unscrewed and they proceeded with various tools to try and pry or pick it out. Finding this ineffectual in its then location, they determined to remove the whole shell and take it over to a more convenient place where they could work on it. While they were working on this shell, Dr. Bolten, the medical officer in charge, came out of his house and saw the young men. His testimony and theirs is approximately the same as to what happened. They state that he accosted them and asked what they were doing and they told him they were attempting to de-activate the shell and that he asked in what appeared to them to be a jocular manner whether they knew they might be arrested for taking or hurting government property and they replied, "No," and he stated, "Well, you had better be careful." Perhaps it would be best to quote the exact language of Dr. Bolten, himself:

"Q. When you came out of your quarters, did you notice any one with respect to the cannon? A. Two boys.

"Q. Did you recognize them? A. Sonny Burn and Howard Jacobs.

"Q. Describe to the Court what took place. A. I came down the steps, walked over to the gun and said, `Boys, what are you doing?' They said they were defusing the shell. I said in a joking manner, `Don't you know you can be arrested for defacing government property?' They replied that no they didn't. I said, `Be careful whatever you do.' Then walked away.

"Q. At that time did you see a wagon or cart which has been described as being a part of the government property over there? A. No, sir.

"Q. Did you see any tools? A. No, sir.

"Q. Will you state whether or not you saw any shell on the ground? A. No, sir.

"Q. State whether or not to the best of your knowledge the shell was still in the cannon? A. As far as I know the shell was still in the cannon because I did not see anything on the ground.

"Q. Will you tell us whether or not you anticipated, as a result of what they said to you, that the shell would be removed from the mouth of the cannon? A. No, sir. It was my understanding that they were taking the fuse out and nothing else. They said that was what they were going to do.

"Q. What did you think with reference to the fuse? A. Well, I didn't know. They were students at the Citadel and I thought possibly they were doing some experiment."

So it is clear that Dr. Bolten was aware that these two young men, both minors, were at work on a shell and whether they said "defusing" or "de-activating," either explanation would certainly carry to any normal mind the impression that they were working with an element that might explode and were attempting to render it harmless. Dr. Bolten says that he had no information or knowledge of their use of the cannon and that he did not know what they were doing to this shell and didn't think it dangerous. And so he walked away and took no further concern and knew nothing of what happened thereafter until after the explosion. A witness, Mrs. Nungezer, testified that Mrs. Bolten, the doctor's wife, had seen the boys take the shell out of the cannon and that she had communicated this to her husband, who stated he would attend to it later, that being a short time before the explosion. Both Dr. and Mrs. Bolten deny that this had taken place or that this information had been communicated to Mrs. Nungezer.

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