Crouch v. United States

• Decision Date: 13 July 1928
• Citation: 31 F.2d 211
• Parties: CROUCH v. UNITED STATES.
• Court: U.S. District Court — District of South Carolina

31 F.2d 211 (1928)

CROUCH v. UNITED STATES.

District Court, E. D. South Carolina.

July 13, 1928.

Huger, Wilbur, Miller & Mouzon, of Charleston, S. C., for petitioner.

J. D. E. Meyer, U. S. Atty., of Charleston, S. C., and Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C.

ERNEST F. COCHRAN, District Judge.

The plaintiff brought this action under the Tucker Act (24 Stat. 505) for damages in the sum of $4,076.50, caused by loss of a pile driver which the plaintiff had rented to the government. The plaintiff also claims seventeen days rental.

The answer sets forth in substance that the defendant had paid the sum of $58.50 for three days' use of the pile driver; that the pile driver had been sunk and damaged by a severe storm, although the defendant had used reasonable care to prevent the same, and denied that the defendant was liable either for the damages or for the seventeen days rental.

The case was heard by me, and the testimony taken and the evidence submitted in open court.

Opinion.

The first question to be considered is one of jurisdiction. It is contended on the part of the government that the case sounds in tort for alleged negligence, and jurisdiction is therefore excluded by the terms of the Tucker Act. But I do not think this conclusion is sound. There was undoubtedly a written contract entered into for the rental of the pile driver by the officers of the government, who had authority to make such a contract. The government was therefore a bailee for hire, and under an implied obligation to use reasonable care in the use of the property and for its preservation. If a bailee for hire is guilty of negligence, and the property through such negligence is either lost or damaged, he is liable to the bailor, not for a tort, strictly speaking, but upon the implied obligation to use due care arising out of the contract. If the contract had in express terms required the use of due care, the action could hardly be said to be one sounding in tort. The fact that the obligation to use due care arises as an implied obligation from the contract cannot change the situation. The suit, therefore, can be maintained under the Tucker Act as a suit upon implied contract.

This conclusion I think is abundantly sustained by the decisions. In the case of U. S. v. Bostwick, the Supreme Court held that, when the United States contracts with its citizens, it is controlled by the same laws that govern its citizens in that behalf, and that all obligations which would be implied against the citizen under the same circumstances will be implied against the United States. That case was a case between a landlord and the United States as tenant, and it was held that there was an implied obligation on the part of the United States, growing out of their relation to the petitioner as lessees to use due care. U. S. v. Bostwick, 94 U. S. 53, 65, 66, 24 L. Ed. 65.

In the case of Clarke v. U. S., there was a contract for the use of a vessel by the government, and the vessel was lost in a storm, but without any negligence on the part of the employees of the government. In that case the Supreme Court said that the implied contract was such as arose upon a simple bailment for hire, and the obligations of the parties were those as were incidental to such a bailment; that a bailee for hire is only responsible for ordinary diligence, and liable for ordinary negligence in the care of the property bailed, and that, as no negligence was attributed to the government in the case, the loss must fall upon the owner. Clarke v. U. S., 95 U. S. 539, 542, 543, 24 L. Ed. 518.

The government, however, relies further upon the case of Bigby v. U. S. But in that case there was no contract whatsoever from which an implied contract could arise. That was a case merely of a suit against the government for injuries caused by the fall of an elevator operated by the government. The court held that such an action was clearly an action in tort, and therefore the jurisdiction was excluded under the Tucker Act. Bigby v. U. S., 188 U. S. 400, 23 S. Ct. 468, 47 L. Ed. 519.

The government also relies upon Occidental Construction Co. v. U. S. But in that case the officers of the government were not authorized to enter into the contract for the hire of the property in question, from which it was sought to raise the implied contract. Here there is a contract for the rental of the pile driver, which the government officers were authorized to make, and that case is not in point in the present case. Occidental Construction Co. v. U. S. (C. C. A. 9th) 245 F. 817.

Under these decisions, I think that the vital question in the case is whether or not the government agents were negligent. If the damages incurred were on account of the storm, then the defendant is not liable. If, however, the government officers by the use of due care could have avoided the damage to the vessel, it was their duty to do so, and the failure to exercise such care would make the government liable for any damage resulting, by virtue of its implied obligation arising out of the express contract. This question of negligence is a question of fact, and the court has been greatly handicapped in reaching a correct solution. The loss of the pile driver occurred in April, 1915. The plaintiff brought no suit until July, 1916. It was suggested at the hearing that the delay in part was caused by the entry of the United States into the World War. But the United States did not enter the World War until April, 1917, and there was a period of nearly two years in which the plaintiff could have brought the case forward. However, I am not aware of the reasons for failure to bring the case forward in the time of my predecessor. There would appear to have been ample opportunity, after the ending of the World War, for this case to have been heard.

Be that as it may, certainly within the last 4½ years there was no effort made on the part of any of the parties to bring the case forward. The case was set down upon a special docket by the court, and the parties notified that they must be ready for trial and dispose of the case. Of the crew of the Snowdrop, not one is now available as a witness, except the cook, and he could hardly be presumed to know very much about the matter, except the bare facts coming under his observation. Capt. R. H. Lockwood, of the Cecilia, is dead, and his testimony unavailable. In the 13 years that have elapsed since the transaction in question, the memory of the few witnesses still available must necessarily have become more or less hazy and uncertain. From these observations, it is not to be inferred that the court means to suggest that the plaintiff should be denied any right which may have been established, by reason of the delays and the unfortunate loss of the testimony of the witnesses. But in such circumstances the court will scrutinize the case very carefully, and is not disposed to attribute negligence on the part of the government officers hastily or lightly. The counsel on both sides have done all that they can to assist the court in reaching a correct conclusion. It may be observed that none of the present attorneys were originally engaged in the cause, and necessarily they are not as familiar with the case as those who first had charge of it.

In considering the question of fact as to whether or not there was negligence, the charges may be ranged under three heads, to wit: (1) That it was negligence to take the pile driver out at all with a storm coming up. (2) That there was negligence in not making a proper use of the services of the Cecilia. (3) That there was negligence in taking the crew off of the pile driver and leaving her without a crew on the night in question.

As to the first proposition, I am clearly of the opinion that it is untenable. The evidence is overwhelming that, at the time the Snowdrop took the pile driver in charge and proceeded with her to Fort Sumter, the weather was fair, and there was no indication of any storm, or that there would be the slightest danger in taking the pile driver over at that time.

As to the second charge, it must be conceded that in some aspects the evidence presents rather a strange situation. There can be no doubt that the Cecilia was employed, that her commander was thoroughly competent, skilled, and experienced, that she was thoroughly equipped, that the plaintiff (the owner of the pile driver) was notified of her employment, and acquiesced in it, and was thoroughly satisfied. There can be no doubt also that, when the Cecilia arrived, she could not get in close enough to the pile driver, on account of the depth of water. Efforts were made by the Cecilia, assisted by the Snowdrop, to get a line on the pile driver, and then proceed to tow her to a safer place, but they all proved unavailing. The only point that seems strange is why the Cecilia did not attempt to use her own hawser. Upon that point, the testimony is that Capt. R. H. Lockwood said that it would cost $25 to wet the hawser. Capt. R. H. Lockwood unfortunately is not here to explain this transaction, or to say why he did not make further efforts to rescue the pile driver. But Capt. Gregg, a reliable witness, testified positively that he told Capt. R. H. Lockwood that it was not a matter of expense, and to do what was necessary to save the pile driver and to get equipment, if necessary, from Castle Pinckney. But for some reason, which is not explained, and which in all probability could be explained by Capt. R. H. Lockwood, if he were alive, Capt. Lockwood decided that the Cecilia could do nothing further towards rescuing the pile driver. The probabilities are that he came to the conclusion that the pile driver was in no immediate danger. Capt. J. J. Lockwood testified positively that, when the Cecilia left, the pile driver was apparently in no danger and could stay where she was through the night. He, however, knew nothing as to the nature of the contract...