Duff v. United States

• Decision Date: 03 January 1949
• Docket Number: 5773.,No. 5772,5772
• Citation: 171 F.2d 846
• Parties: DUFF v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Fourth Circuit

171 F.2d 846 (1949)

DUFF v. UNITED STATES (two cases).

Nos. 5772, 5773.

United States Court of Appeals Fourth Circuit.

January 3, 1949.

Morris Rosenberg, of Baltimore, Md. (Robert H. Archer, Jr., of Baltimore, Md., on the brief), for appellants.

James B. Murphy, Asst. U. S. Atty., of Baltimore, Md. (Bernard J. Flynn, U. S. Atty., of Baltimore, Md., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

These companion cases were brought under the Federal Tort Claims Act, 28 U.S. C.A. § 921 et seq.,¹ one by a 14 year old boy, by his father and next friend, for personal injuries caused by a pistol wound inflicted accidentally through the negligence of Herbert S. Priddy, a member of the U. S. Navy, and the other by the father of the boy for the loss of services and the cost of medical care and treatment of his son. The accident occurred on the grounds of the Bainbridge Naval Training Center adjacent to the town of Port Deposit, Maryland, a United States reservation for the training of young men for service in the Navy. The reservation included 1100 acres of land and was occupied by 20,000 people, including 15,000 naval recruits and a household force of 2500 under a Commandant. It is conceded that at the time the injured boy was hurt he was a trespasser, or at most a licensee upon the premises. The District Judge rendered a verdict for the United States in both cases since he was of the opinion that the circumstances under which the accident occurred gave rise to no liability on the part of the United States under the law of Maryland which governs the cases by virtue of the express terms of Section 410(a), 28 U.S.C.A. § 931(a) now § 1346, of the statute. State of Maryland v. United States, 4 Cir., 165 F.2d 869, 1 A. L.R.2d 213.

The father of the boy was a civilian employee at the training station and the family lived in Port Deposit in a house whose grounds ran to a wire fence which enclosed the reservation at a level 500 feet above the town. A winding stairway led from the town to a gate in the fence and inside, near the gate, was a sentry box about 4 feet square which was used to house a telephone and to protect the guard on duty in bad weather. The townspeople customarily used this gate to gain access to public busses, and boys from the town, including the plaintiff and his brother, were allowed to enter the gate in order to use the football field, to visit the motion picture theater, to use the swimming pool, and to make purchases at the Hobby Shop, all located on the reservation. On the day of the accident, in the evening, the minor plaintiff carried some supper from his home to a friendly seaman on guard at the gate, and remained with him until about 8:45 P.M. Later the boy got some cake for seaman Priddy and walked with him while he made his rounds as an armed guard. Noticing some prowlers in the woods, Priddy put a cartridge clip in his pistol and injected a shell therefrom into the firing chamber so that it might be fired if necessary. When they returned to the gate Priddy decided to telephone the officer of the watch and entered the sentry box for the purpose. At that time the boy was in the box and Priddy, realizing the danger of carrying the pistol with a live cartridge in the firing chamber, attempted to unload it. In doing so he accidentally discharged the weapon and the boy was shot in the leg and seriously injured.

Priddy had had no experience with an automatic pistol before entering the Navy, and he was given no instructions as to loading or unloading such a weapon after he became a member of the armed forces other than the direction never to load or unload it in a building or immediately outside. He had never seen the weapon unloaded with a live cartridge in the firing chamber. However, he had seen other men insert and remove the cartridge clip from the stock of the weapon a number of times and had done so himself, and on the evening of the accident, he had inserted a live shell into the firing chamber without difficulty.

The District Judge made the following finding, which is supported by the evidence, as to Priddy's intention and behavior at the moment that the accident occurred:

"* * * Priddy had never had occasion to actually fire the pistol nor had he ever actually before had occasion to unload the pistol with a bullet in the firing chamber. When the pistol in his hands was accidentally discharged and Duff was shot, Priddy had no intention of firing the pistol but only of unloading it. He was unable to describe just exactly what he had done in the operation of attempting to unload it because, as he expressed it, `it all happened so quickly.' It was a pure accident so far as he was concerned and the discharge of the pistol was a great surprise to him. He was quite unconscious of any thought that in unloading the pistol it would likely or possibly be discharged and do himself or anyone else any harm. I find that his action in the matter and the resulting damage to young Duff was neither wilful or wanton or reckless on Priddy's part."

The plaintiffs advance the contention that the defendant should be held liable for the injury on the ground that the owner of land owes the duty to a licensee on the premises to exercise ordinary care to avoid injury to the licensee who the owner knows or by the exercise of ordinary care should know is in a position of peril. This is substantially the rule laid down in many jurisdictions with respect to the liabilities of possessors of land to trespassers as set out in 2 Restatement of Torts, §§ 333-338. The Restatement adopts the view (p. 1291), "that a possessor of land owes the same duty of careful action toward a known trespasser or gratuitous licensee as he would owe had the same situation arisen in a place in which both he and the trespasser or licensee had an equal right or privilege * * * to be." That rule, however, is not recognized by the Maryland courts. It was expressly repudiated in Jackson v. Pennsylvania R. Co., 176 Md. 1, 11, 3 A.2d 719, 724, 120 A.L.R. 1068, where the court said: "The Restatement of the Law of Torts, vol. 2, sec. 334, imposes a greater degree of care upon the owner than is enforce by the decisions of this Court."

In Maryland, the duty of the possessor to use care to avoid injury to a trespasser or licensee upon his land does not arise until he has actual knowledge that the other is in peril; and if he fails under such circumstances to exercise the care of a reasonably prudent man he is said to act with reckless disregard of the safety of others and his action is described as wilful or wanton misconduct.¹ The Maryland rule was carefully considered and applied in Jackson v. Pennsylvania R. Co. supra, where the plaintiff attempted to cross railroad tracks upon a path habitually used by the public, and was struck by a backing train which failed to give notice of its approach although for a long time previously trains in like situation had been accustomed to do so. In denying liability the court said:

"* * * By the clear and consistent decisions of this Court he was a trespasser or at most a bare licensee and the frequency of his trespass or use and of that of others did not impose any greater duty than that due to a bare licensee. It is so held in Baltimore & O. R. Co. v. Walsh, 142 Md. 230, 242, 120 A. 715. The duty did not begin until the operators of the engine and tender knew of the plaintiff's presence on the track. After such knowledge, the operators were bound to use the care and diligence of ordinarily prudent men in similar circumstances to prevent an injury to the plaintiff. Supra, and Anderson v. Baltimore & O. R. Co., 144 Md. 571, 573, 125 A. 393. Hence, under the allegations of the declaration in this case no duty of the defendant and its servants to the plaintiff could arise until the defendant's servants had knowledge that the plaintiff was in a position of peril in time for them to prevent an injury by the exercise of due care. This knowledge is the gist of the plaintiff's right of action." 176 Md. at pages 9, 10, 3 A.2d at page 723.

"* * * and, as in the case of the trespasser, the licensor, who is aware that a licensee is actually there is bound to take reasonable care to prevent injury to him after knowledge of the impending danger; and not to inflict wilful or wanton injury." 176 Md. at page 11, 3 A.2d at page 724.

The rule was again stated as follows in State v. Baltimore & O. R. Co., 144 Md. 571, 573, 125 A. 393, 394, in which the equitable plaintiffs were the dependents of a man killed while walking on the defendant's railroad track.

"* * * In order that his dependents might recover damages from the defendant on account of his death, it was necessary for them to prove that the operators of the train knew of his presence on the track in time to have obviated the accident by proper care and effort. Their knowledge of his hazardous situation, and their opportunity and failure, with such knowledge, to act efficiently for his protection, were facts essential to be proved as the basis of recovery. This rule of law is definitely settled and is not questioned."

See also Western Maryland R. Co. v Kehoe, 83 Md. 434, 452, 35 A. 90.²

The same rule is applied to the converse situation where the owner fails to exercise ordinary care to avoid injury to a trespasser or licensee of whose peril the owner is aware. See Baltimore & O. R. Co. v. Harris, 121 Md. 254, 88 A. 282, and Carr v. United Rys. & Elec. Co., 135 Md. 306, 108 A. 872. In both of these cases the defendant was held liable to a trespasser or licensee because it was shown that the defendant had knowledge of the position of peril in which the injured party was situated, and hence was bound to exercise reasonable care to avoid the injury. In the latter case the court said (135 Md. at page 311, 108 A. at page 874):

"* * * `As no one has a right to be negligently or wrongfully on a...