Folk v. United States

• Decision Date: 05 February 1952
• Docket Number: 1171.,Civ. A. No. 1170
• Citation: 102 F. Supp. 736
• Court: U.S. District Court — District of South Carolina
• Parties: FOLK v. UNITED STATES (two cases).

102 F. Supp. 736

FOLK v. UNITED STATES (two cases).

Civ. A. Nos. 1170, 1171.

United States District Court W. D. South Carolina, Greenwood Division.

February 5, 1952.

B. E. Nicholson, Joe F. Anderson, Edgefield, S. C., for plaintiff.

John C. Williams, U. S. Atty., Frank E. Jordan, Jr., Asst. U. S. Atty., Greenville, S. C., for defendant.

WYCHE, Chief Judge.

These two actions are brought under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), one for damages for wrongful death, under Sections 411 and 412, Code of Laws of South Carolina, 1942, and the other for damages for conscious pain and suffering under Section 419, Code of Laws of South Carolina, 1942, and were consolidated and tried together before me without a jury.

In compliance with Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law thereon, in the above causes, as follows:

Findings of Fact

Shortly after daylight, on the morning of Saturday, January 13, 1951, Roy L. Cecil, Criminal Investigator, Alcohol Tax Unit, of United States Treasury Department, hereinafter called the officer, acting within the scope of his employment, and while in the active discharge of his duties, accompanied by Criminal Investigators of the Alchohol Tax Unit, W. C. Elrod, W. H. Wetzel and Cecil D. Martin, together with South Carolina State Constables Charlie Branyon, Elliott J. Long and Clyde R. Jackson, conducted a raid on an illicit distillery for the manufacture of whiskey, in the Morgana section of Edgefield County, South Carolina, at which John Henry Hammond, a colored man, thirty-six years old, a resident of Aiken County, South Carolina, was working, along with three other persons.

The illicit distillery had previously been located and those participating in the raid had been placed at different locations in the proximity of the distillery site. The distillery was in the bed of a creek between high embankments. The officer walked into the distillery site and observed four men, none of whom he knew, working at the distillery. Whether they were there as owner, worker or by-stander, was not known to him. He did not observe any weapons or firearms in or around any of the men, but he drew his forty-five caliber automatic army pistol, which he was then carrying, called to the men "A Federal Officer — don't run". Immediately after hearing these words, the four men at the distillery fled, with John Henry Hammond and another colored man, later ascertained to be Ernest Holmes, running up the embankment side-by-side near the officer.

When the officer started running after Hammond he took the safety off of his loaded forty-five caliber army automatic pistol, and while continuing to hold it in his hand, cocked, with the safety off, pursued John Henry Hammond and Ernest Holmes through the woods and up the hill. A short distance up the hill Ernest Holmes turned to the left, and shortly thereafter ran into Criminal Investigator Cecil Martin and was apprehended.

Hammond continued up the hill with the officer still in pursuit, gaining on him, with his cocked, loaded pistol with the handle in his hand, with the safety off. At a point approximately one hundred yards from the distillery, and when the officer was "20 or 25 steps" behind him, Hammond jumped over a ditch, and when the officer attempted to jump the same ditch in pursuit with his cocked, loaded pistol, with the handle in his hand, with the safety off, he fell, discharging the pistol in the direction Hammond was fleeing, the bullet from which entered the right forearm of Hammond, entering from the back of the arm, severing an artery, and coming out in the front. Hammond proceeded up the hill with the officer following him to the crest of the hill, a distance of sixty-five yards from the place where his pistol was discharged, and in the course of pursuit to the top of the ridge, he discharged his pistol two more times as signal shots to his associates. It is customary to fire "two or three" shots as a signal to notify other officers that, one is fleeing through the woods, or that assistance is needed.

At no time in the course of flight did Hammond offer any resistance, draw any weapon, or act in any manner indicating any intention of offering any resistance to the officer, or to do him any bodily harm. Hammond was unarmed and at all times during the chase was fleeing from the officer.

After looking for Hammond about "five or ten minutes", the officer returned to the site of the distillery with Hammond's shoes in his hand. He made no statement at that time to the other officers with him on the raid of having fallen in the ditch and discharging his pistol, or of having chased the deceased with a cocked, loaded pistol, with the handle in his hand, with the safety off. He did not say anything to anyone about these facts until the following Sunday night after Hammond's body was found.

The officer remained in the vicinity of the distillery, with the others associated with him in the raid, approximately three hours and no further search was made for Hammond.

The following Sunday afternoon, January 14, 1951, Hammond's body was found by friends, who were searching for him at the instigation of members of his family, after he failed to return home.

The body was found in a ditch at the bottom of the hill, one hundred, ten yards from the crest of the hill, where the officer had stopped in his pursuit of Hammond. Hammond had bled to death from the bullet wound in his arm.

On Monday, January 15, 1951, blood was found by another officer on several trees at the crest of the ridge at or near the point where the officer ceased his pursuit of Hammond.

The terrain from the distillery site to where the body of Hammond was found, and along the course of his flight, consisted of woodland from which all large timber had been cut, with some undergrowth, with visibility unhampered, except by the hill and a few small scattered pine trees.

A Criminal Investigator of the Alcohol Tax Unit is instructed by the Deputy Commissioner of Internal Revenue to go armed at all times for the "defense" of himself and his fellow officers. There are no instructions "for an officer to pull out his gun and take off the safety" to pursue a man running from him through the woods.

Of those participating in the raid only the officer and W. C. Elrod testified.

Hammond was thirty-six years of age at the time of his death, in good health, worked regularly and had an average income of $45 per week. His mother, Fannie M. Hammond, with whom he resided, is sixty-five years old, practically blind and crippled, in bad health, and solely dependent on him for her support and livelihood, and to whom he contributed approximately $78 per month, for food, clothing and medicine.

Hammond had a life expectancy of 31.07 years.

There is no evidence that Hammond suffered any shock, pain, mental or otherwise, after being shot, while conscious and before bleeding to death. However, the court will assume that he knew he was shot; that he suffered some shock and some pain before losing consciousness.

It is admitted that J. R. Folk is the duly appointed administrator of the estate of John Henry Hammond, and brings Civil Action Number 1170 for the benefit of Fannie M. Hammond, the mother of John Henry Hammond.

It is agreed that Louise Turner Hammond, the former wife of John Henry Hammond, abandoned John Henry Hammond approximately eight years ago, and shortly thereafter married another man, without having obtained a divorce, and that she was at the time of the death of John Henry Hammond, and now is, living with another man and going by the name of Louise Turner Hammond Anderson, and by reason of these facts she is barred and estopped from claiming any benefit under Section 412, Code of Laws of South Carolina, 1942, and that any recovery by plaintiff in this action will be for the benefit of Fannie M. Hammond, the mother of John Henry Hammond, deceased.

Civil Action Number 1171 is brought by J. R. Folk, as Administrator, for the benefit of the estate of John Henry Hammond.

It is further admitted by the pleadings that the officer was acting within the scope of his employment and in the discharge of such duties in conducting the raid upon the distillery.

It is admitted that the officer was using a forty-five caliber army automatic pistol (Model 1911, United States Army), and agreed that I am permitted to examine one as evidence in this case. When a cartridge from the magazine is fed into the chamber of the pistol, it is automatically cocked. When the safety on the pistol is pushed up to the safety position, the pistol cannot be fired. The safety cannot be put on or taken off unless the pistol is cocked; the safety cannot be moved unless the pistol is cocked. The pistol also has a grip-safety, which is just under the hammer of the pistol on the back of the handle. The pistol cannot be fired unless it is cocked; it cannot be fired unless the safety is off and the grip-safety is pressed and the trigger is pulled; it cannot be fired by pulling the trigger unless the pistol is cocked, the safety off, and the grip-safety is pressed at the same time the trigger is pulled. Knowing the pistol as I do, and from an examination of one as evidence, and from the evidence in the case, I find, that when he was pursuing Hammond, the officer held the pistol by the handle, cocked, with the safety off and his finger inside the trigger guard and his hand over the grip-safety. Otherwise, in my opinion, the pistol could not have been discharged, unless there was something mechanically wrong with it, and there is no evidence to indicate that there was.

The officer had used the army automatic pistol in two world wars and had had many years' experience as a Criminal Investigator, Alcohol Tax Unit, United...