Gordon v. United States

• Decision Date: 20 January 1960
• Docket Number: Cong. No. 9-55.
• Citation: 148 Ct. Cl. 31,180 F. Supp. 591
• Parties: Edward GORDON, Morton Gordon, John J. Dahill, Esteban Melendez, Jean Garcia, Marie Flynn, Carmen Rodriquez, and 62 Lenox Ave., Incorporated v. UNITED STATES.
• Court: U.S. Claims Court

180 F. Supp. 591

148 Ct. Cl. 31

Edward GORDON, Morton Gordon, John J. Dahill, Esteban Melendez, Jean Garcia, Marie Flynn, Carmen Rodriquez, and 62 Lenox Ave., Incorporated v. UNITED STATES.

Cong. No. 9-55.

United States Court of Claims.

January 20, 1960.

Richard T. Davis, New York City, for plaintiffs.

Martin E. Rendelman, Chevy Chase, Md., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant.

BARKSDALE, District Judge, sitting by designation.

This case is before the court pursuant to House Resolution 273, 84th Congress, 1st Session, adopted July 5, 1955, referring a bill, H.R. 2458, as authorized by 28 U.S.C. § 1492 and § 2509. At issue are the plaintiffs' claims for damages for injuries sustained from the explosion, by three members of the armed services while on leave, of grenades on the premises of plaintiff, 62 Lenox Ave., Incorporated, known as "Royal Flush Bar and Grill", in the City of New York, during the early morning hours of December 23, 1952. Pursuant to 28 U.S.C. § 2509, the court is charged with the duty of reporting "the facts in the case" and also "conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant." The resolution of reference and the referred bill are set out in full in the findings of fact which will appear later herein.

Plaintiffs contend, first, that defendant is legally liable to them under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). In the alternative, plaintiffs contend that, if the defendant is not legally liable to them, their claims against the defendant are equitable.

Briefly, the essential facts upon which liability depends, are that, about 1:15 a. m., on the morning of December 23, 1952, the individual plaintiffs were lawfully in the Royal Flush Bar and Grill, in New York City, the premises of plaintiff, 62 Lenox Ave., Incorporated. The plaintiffs did nothing to cause or provoke the explosion which followed and caused the injuries complained of. About that time, three servicemen came in, namely, Eugene Francis McDermott, nineteen years of age, a supply sergeant in the United States Marine Corps attached to the Headquarters and Service Company, 3d Battalion, 8th Marines, stationed at Camp LeJeune, N. C., and at that time on leave; Mark Sutter, nineteen years of age, a private in the United States Army, on leave from his station at Wolter's Air Force Base, Texas; and Patrick J. Shanahan, nineteen years of age, a seaman in the United States Navy on leave from the Naval Technical Training Center, Jacksonville, Florida. All three were thoroughly intoxicated. McDermott had in his possession a white phosphorus incendiary grenade and a hand illuminating grenade, military ordnance manufactured specifically for use by the armed services. Although not ammunition for use against personnel such as a fragmentation grenade, they were intended to be used for illumination and as incendiaries, and were capable of causing severe burns and starting fires. Motivated by their feeling of intolerance of, and dislike for Puerto Ricans of Spanish origin, and their desire to cause trouble and frighten persons in a Puerto Rican neighborhood, the servicemen exploded the two grenades, causing severe injuries to the individual plaintiffs and damages to the premises of the corporate plaintiff.

McDermott, who had the grenades in his possession, was killed by a police officer while resisting arrest, so the question of how and where the grenades came into his possession depends largely upon circumstantial evidence. Live ammunition for Camp LeJeune was stored in magazines located five to ten miles from the camp. There was no evidence of the use of any grenades at Camp LeJeune more than a possibility that some pyrotechnics might have been issued. During the fall of 1952, the command of which McDermott was a member engaged in maneuvers in Puerto Rico during which the troops used grenades, both fragmentation and pyrotechnic. The grenades were issued one at a time, and then exploded, and a careful check was kept to prevent the removal of any. Although there is no direct evidence of how McDermott came into possession of these grenades, the Commissioner found that:

"It would seem a strong probability that McDermott, in the course of such maneuvers, in some manner obtained the two grenades in question and carried them back to Camp LeJeune with him, undetected, and took them with him when he went on leave. McDermott was the supply sergeant of the Headquarters and Service Company of the Battalion, and any such pyrotechnic grenades issued for the use of his company on maneuvers were probably distributed through him. The removal of such explosives from Camp LeJeune, N. C., was specifically prohibited by Marine Corps Regulations."

The Tort Claims Act, in effect, provides that the United States shall be liable in money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

We agree with plaintiffs' contention that the North Carolina law of master and servant and the application by the courts of that State of the doctrine of respondent superior, are applicable here to everything which took place in North Carolina. In the case of Williams v. United States, 9 Cir., 215 F.2d 800, 802, the Court of Appeals held that the question of whether a soldier was "acting within the scope of his office or employment", at the time his negligent conduct caused injury to the plaintiff, was a Federal question, not governed by the California law of master and servant. The Supreme Court reversed, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761, saying in a per curiam opinion:

"This case is controlled by the California doctrine of respondeat superior, the judgment is vacated and the case is remanded for consideration in the light of that governing principle."

Plaintiffs contend that McDermott was "acting within the scope of his office or employment" in taking the grenades away from Camp LeJeune, that the defendant was negligent in permitting him so to do, and that this negligence was the proximate cause of the plaintiffs' injuries. Plaintiffs cite North Carolina authorities holding that persons having custody of dangerous explosives must exercise the highest degree of care, the degree of care required being commensurate with the dangerous character of the article. This is, no doubt, the law of all the States, but the evidence in this case does not disclose any breach of this duty on the part of the defendant.

There is no direct evidence of how McDermott obtained these grenades, nor how he managed to bring them away from Camp LeJeune. Indeed, there is no direct evidence that he did obtain them at Camp LeJeune or during the Puerto Rican maneuvers, but it would seem that such an inference would be reasonable. Viewing the evidence in the light most favorable to plaintiffs, the most that can be inferred is that these grenades were issued to McDermott as supply sergeant for use by the personnel of his battalion, but that, instead of using them for their proper purpose, or issuing them to others for such use, he secreted them and surreptitiously brought them with him to New York from Camp LeJeune when he went on leave. This was directly contrary to his duties as supply sergeant, and directly contrary to a specific Marine regulation. Prior to December 23, 1952, McDermott had a perfect military record, and there were no facts or circumstances to put his superior officers on notice he might be guilty of any dereliction of duty or violation of orders.

The North Carolina authorities relied on by plaintiffs do not justify a conclusion of negligence on the part of the defendant upon these facts. Plaintiffs rely primarily on Stewart v. Cary Lumber Co., 146 N.C. 47, 59 S.E. 545, 546. There, the engineer of one of defendant's trains, while operating his locomotive about his master's business, "as he was passing near plaintiff, wantonly and unnecessarily blew the whistle of the engine to frighten plaintiff's mule;" the whistle being blown violently and for some time for the sole purpose of frightening the mule to amuse the engineer. In affirming a judgment for the plaintiff, the court said:

"I fully agree that the rule obtains generally that the master is not answerable in damages for the wanton and malicious act of his servant, when not done in the legitimate prosecution of the master's business, and that the evidence in this case presents a `positive affirmative tort, pure and simple', committed by the engineer without the master's knowledge, approval, or ratification."

The Court then went on to quote with approval the following:

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