Fournier v. United States, Civ. A. No. 3296.

• Decision Date: 24 August 1963
• Docket Number: Civ. A. No. 3296.
• Citation: 220 F. Supp. 752
• Parties: James A. FOURNIER, Husband of Deceased Wife, Rachel Fournier, for and on Behalf of Himself and Deceased's Daughter, Billie Burt DeLaughter, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

220 F. Supp. 752

James A. FOURNIER, Husband of Deceased Wife, Rachel Fournier, for and on Behalf of Himself and Deceased's Daughter, Billie Burt DeLaughter, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 3296.

United States District Court S. D. Mississippi, Jackson Division.

August 24, 1963.

Abe Rotwein, Jackson, Miss., for plaintiff.

Robert E. Hauberg, U. S. Atty., Jackson, Miss., for defendant.

WILLIAM HAROLD COX, Chief Judge.

This is a suit under the Federal Tort Claims Act (28 U.S.C.A. § 2674) and the Mississippi Actionable Death Statute (§ 1453 Code 1942). The plaintiff is suing for the accidental death of his wife and for the use of himself and her daughter. The plaintiff is a member of an officers' mess or club on a military reservation in Jackson. This couple visited this facility for dinner and mixed drinks on the evening of December 7, 1960, when decedent was fatally injured while leaving the building about 10:45 that evening. There were no eyewitnesses to the accident.

FINDING OF FACTS

The decedent and her husband (plaintiff) visited the officers' mess club in Jackson on the evening of December 7, 1960, for dinner and mixed drinks. The decedent had at least eight full-sized drinks between her arrival and departure from the building. She knocked over two other drinks at the bar and fell off of the stool and had to be helped back before leaving the building. These facts were not disputed. The testimony shows that she and her husband were served drinks by the bartender in this facility beyond their capacities.

The decedent, while leaving the building in this condition and while descending the front steps to the building, which were not well lighted, slipped and fell a sufficient distance to strike her head against concrete at the base of the steps with sufficient force to cause serious brain damage from and as a result of which she died in a week. These steps were approximately six feet long with approximately eight inch risers and ten inch treads. There were seven treads or steps from the ground to the porch. Hand rails were provided at each end of the steps. The treads were made of two by four timbers which were spaced apart but there was no evidence to show that this construction had anything to do with the accident. The porch between the steps and the front entrance was approximately six feet wide or deep. A drop light with a hundred watt bulb was suspended from the ceiling, but was not burning when this couple arrived at and was not burning when they left the building. There was no defect in these steps, but the absence of this light on this evening, coupled with the effect of a misting rain on these uncovered steps, made for a dangerous condition, particularly in her condition. This was a dark night. A five hundred watt flood lamp on an adjoining building one hundred twenty feet away shone on these steps to some appreciable degree, but did not reveal sufficient details in the steps to allow for her reasonably safe passage under the circumstances.

The decedent was never more than semi-conscious after her injury at any time prior to her death. She, therefore, did not suffer much appreciable conscious pain. She was forty-nine years of age and according to the 1958 Standard Ordinary Table of Mortality had a life expectancy of 24.45 years. She had a job with a State agency at a monthly salary of $275.00. James A. Fournier, her widower, and Billie Burt DeLaughter, an adult daughter, are her sole heirs.

The City of Jackson leased this building and other buildings to the United States on condition that the government "perform its own maintenance in the area and buildings herein described." The buildings (including this building designated as T-22) were leased for: "military district and organized reserve corps requirements and other requirements of the government." This officers' mess was an integral part of this military establishment and was a non-appropriated fund instrumentality. It was operated exclusively from gross receipts from the sale of food and intoxicating beverages on the premises. Only military personnel, their family and guests, were served. This mess was operated by a civilian manager selected by a military officer in charge of the base. The manager hired and fired all personnel and paid them from the mess hall funds. This light at the head of these steps was controlled by a switch inside the front door. The switch was thrown, but the operator could not see whether or not the light was...