Deeds v. United States

• Decision Date: 10 November 1969
• Docket Number: Civ. No. 2567.
• Citation: 306 F. Supp. 348
• Parties: Sandra DEEDS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Montana

306 F. Supp. 348

Sandra DEEDS, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 2567.

United States District Court D. Montana, Havre-Glasgow Division.

November 10, 1969.

Aronow & Anderson, Shelby, Mont., for plaintiff.

Otis L. Packwood, U. S. Atty., and Clifford E. Schleusner, Asst. U. S. Atty., Billings, Mont., for defendant.

ORDER AND OPINION

JAMESON, District Judge.

Plaintiff seeks damages under the Federal Tort Claims Act¹ for injuries sustained on May 31, 1963, when an automobile owned and being driven by Gerald B. Tanberg, in which plaintiff was riding as a guest passenger, left the road and rolled over on Montana secondary highway No. 232, generally known as "Wild Horse Road".

Tanberg was a 19 year old second class airman, stationed at the Havre Air Force Station, herein called the Havre Radar Base, located 39 miles north of Havre, Montana, on Wild Horse Road. Plaintiff, Sandra Deeds, was a 17 year old high school junior. On the night of May 30 and early morning of May 31, 1963, plaintiff, Tanberg, and Gerald R. Freeland, another 19 year old airman, were among those attending a party at the Non-Commissioned Officers Club at the Havre Radar Base.²

Staff Sergeant Raymond Brammier and other servicemen were employed at the club and served intoxicating liquor and beer to Tanberg and other minors during the course of the evening. It is conceded that Tanberg consumed alcoholic beverages at the party.³

The evidence discloses that on the afternoon of May 30, a Sergeant Wallace, who was stationed at the Radar Base, invited plaintiff to attend the party at the N.C.O. Club that night.⁴ Plaintiff went to the party alone, after hitchhiking two rides from Havre to the Base. Later in the evening she met Freeland, whom she had dated for several months, and who had been at her home late the afternoon of May 30. Sometime between two and three A.M. on May 31 Freeland persuaded plaintiff that she should return to her home in Havre and asked Tanberg to give Sandra and him a ride to Havre.

The only transportation available to plaintiff for her return to Havre was by private automobile, no bus or other public transportation being available. Nor is there any evidence that any private vehicles were available except those owned and operated by Air Force personnel. Freeland's car had been left in town on the afternoon of May 30 and he had returned to the Radar Base with another airman.

Tanberg agreed to take Freeland and plaintiff to Havre in his car. Plaintiff and Freeland rode in the back seat. While traveling at a high rate of speed, the car left the road and rolled over, wrecking the car and injuring the three occupants.

Plaintiff contends that (1) the Air Force servicemen who dispensed liquor to minor servicemen and minor civilians at the club did so in violation of Section 4-413 R.C.M.1947⁵ and Air Force Regulations⁶ in that (a) Tanberg was a minor and (b) sales were made or liquor was given to him after he became intoxicated; (2) as a proximate result of the unlawful acts of the Air Force personnel Tanberg became intoxicated, drove his vehicle at an excessive rate of speed, and the plaintiff was injured as a consequence thereof; and (3) defendant accordingly is liable to plaintiff for damages as a result of the injuries sustained in the accident.

Defendant denies that it is liable for the injuries plaintiff sustained in the accident and contends (for the reasons hereinafter discussed) that plaintiff assumed the risk of Tanberg's conduct and negligence in the operation of the automobile, and that the accident was caused by the intervening negligence of Tanberg, while not in the course of any employment for defendant, "in serving to himself, and drinking, without the consent or permission of defendant's agents or employees" three glasses of whisky just before leaving the club and then getting into his automobile and driving at a high rate of speed toward Havre.

In its post-trial brief the defendant recognizes that under the Federal Tort Claims Act, "the United States has given its consent to be sued and to be liable for the torts of its employees in the same manner as would a private person, and in accordance with the law of the place where the tortious act or omission occurred".⁷

At the outset it may be noted that the parties agree that at the time of the accident Tanberg was driving his automobile at an excessive rate of speed, the defendant initially contending that this was ordinary negligence assumed by the plaintiff guest.⁸ The court finds from the evidence that Tanberg was grossly negligent and reckless in his operation of the vehicle. The parties agree and the evidence supports a finding, that he was traveling at a speed of at least 80 to 90 miles an hour. The highway patrolman who investigated the accident testified that the curve where the accident occurred "could be negotiated safely by a reasonably good driver" at 55 miles an hour "under ideal conditions", and that above that speed it would be hazardous.⁹

The parties agree also that Tanberg was served intoxicating liquor at the N.C.O. Club. They disagree regarding the amount consumed and its subsequent effect on Tanberg's driving, as well as the responsibility of the Air Force personnel who were acting as bartenders.

Tanberg testified that while he was in the club (between approximately 10:00 P.M. and 2:00 A.M.) he had six or eight drinks of whisky with coke or seven-up, and that he was "feeling good" when he left the club, except that he was upset because the girl he had escorted to the dance had left him for another airman.¹⁰

Wanda McNight (formerly Wanda Ehry), a 17 year old high school girl who accompanied Tanberg to the party, testified that Tanberg had "quite a few" drinks; that it would be more than six or seven; that he was drinking whisky or vodka; that "(h)e had quite a bit to drink" and she "would say he was very high" when he left the club.

The plaintiff testified that she did not spend much time around Tanberg at the club but that she did see him "walk around with a drink in his hand". Freeland testified that he had observed Tanberg drinking at the club but did not know how much; that he had seen Tanberg drink heavily on other occasions; that when Freeland asked Tanberg to take Sandra and him to Havre Tanberg did not appear "intoxicated, but he was pretty close" and that "about everybody else was intoxicated too";¹¹ that Freeland and Sandra were in the car 15 or 20 minutes when Tanberg came to the car and Tanberg appeared to have had more to drink in the meantime.

Joan Conley Gaspard, another 17 year old girl, testified that she observed Tanberg drinking at the party; that he was drinking quite a bit ("we all were"); that she observed Wanda Ehry leave the club sometime after midnight and at that time Tanberg "was pretty well drunk"; that after Wanda left, Tanberg came back to the table and when he found Wanda had left with another airman "went to the bar and got a bottle from behind the bar and a shot glass, and poured three shots, straight shots of some whisky or bourbon or scotch and drank them * * (in) less than a minute". She observed Sandra and Freeland leave the club about half an hour before Wanda.

On cross-examination Joan testified further that Tanberg served himself the last three shots of whisky; while the bartender was at the other end of the bar; that Tanberg did not pay for these drinks; that the bartender took the bottle and glass away from Tanberg and was trying "to quiet him down"; that Tanberg was upset because of his fight with Wanda and "was very high" but not "completely drunk" when Sandra and Freeland left the club.

Both the plaintiff and Freeland testified that when Tanberg came to the car he couldn't find his key, threw everything out of his pockets, and finally found the key and started the car; that he came out with a drink in his hand and threw the glass on the parking lot.

From the time they left the Base, Tanberg drove at a high rate of speed. Apparently they followed another car in which Wanda was riding. This car parked and Tanberg tried to talk to Wanda, but she refused to talk to him. Tanberg then got back in his car, and according to Freeland "turned it around in one sweep and took off toward town"; that he was going fast enough that Freeland "was scared"; that on two occasions Freeland asked Tanberg to slow down; that Tanberg was unable to make the curve where the accident occurred, and the car left the highway. Freeland was thrown from the car and escaped with minor injuries. Tanberg and Sandra were pinned in the car and sustained very serious injuries.

According to Howard Lem, the highway patrolman who investigated the accident, the car traveled 225 feet down an embankment where it "made its first roll over", flipped a fence into a plowed field, where it traveled for 30 feet, rolled 36 feet, traveled 60 feet, clearing a group of trees and shrubs ten or twelve feet high before it came to rest; that "after the fence" the car took "one and a half roll overs before going over the trees and into its final resting place". Lem estimated the car must have been traveling at a speed between 85 and 100 miles an hour when it left the highway.

Lem could smell alcohol on Tanberg and wanted to have a blood test taken, but the doctor refused because of Tanberg's condition, feeling that it would be unsafe to take the blood sample.

The foregoing summarizes the testimony offered at the trial. Sergeant Brammier, who was in charge of the bar, did not testify; nor did any of the other bartenders. There was no evidence to contradict the testimony set forth above relative to the dispensing of liquor to the minor airmen and civilians and the amount of liquor consumed by Tanberg.

Non-appropriated fund instrumentalities are "integral parts of the Government's military services". United States v. Forfari, 9 Cir. 1959, 268 F.2d 29, 31, cert. den. 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157. Mess...