Kirk v. United States

• Decision Date: 20 September 1954
• Docket Number: No. 3067.,3067.
• Citation: 124 F. Supp. 233
• Parties: Martha M. KIRK, an adult, and Kenneth William Kirk, a minor, who sues by his Guardian Ad Litem, Martha M. Kirk, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Idaho

124 F. Supp. 233

Martha M. KIRK, an adult, and Kenneth William Kirk, a minor, who sues by his Guardian Ad Litem, Martha M. Kirk, Plaintiffs, v. The UNITED STATES of America, Defendant.

No. 3067.

United States District Court D. Idaho, S. D.

September 20, 1954.

Richards, Haga & Eberle, Boise, Idaho, for plaintiff.

Sherman F. Furey, Jr., U. S. Dist. Atty., Boise, Idaho, for defendant.

TAYLOR, District Judge.

This is an action in tort charging that the United States, by and through its negligence, was responsible for the death of one William M. Kirk. Plaintiffs are the wife and minor child of deceased, said wife appearing in her own right and as guardian ad litem for the minor. The action was commenced and is being prosecuted under and pursuant to the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., and the jurisdiction of this court is invoked under and pursuant to 28 U.S. C.A. § 1346(b). The cause is now before this court on the motion of the defendant for a summary judgment.

Plaintiffs complaint alleges that the defendant, the United States of America, "was engaged in the construction of a dam * * * on the Boise River about ten miles East of Boise in Ada County, State of Idaho; that said project was being carried out by the Department of the Army, Corps of Engineers and by the Chief Engineer of said Corps, * * * as authorized by statute and regulation of the United States of America and the Department of the Army." It is further alleged that Kirk "was employed as a carpenter upon the Lucky Peak Dam project by Bruce Construction Company and Russ Mitchell, Inc., which said parties were contractors performing work upon said project for the Defendant * * *; that said William M. Kirk while employed by said contractors and while performing carpenter work upon said project, * * *, through the negligence and wrongful acts and omissions of the Defendant and its employees died * * *." Plaintiffs specifically allege that, "said Lucky Peak Dam, the control works and the land occupied thereby, were in the possession of and under the control, dominion and authority of said Defendant, the United States of America." (Emphasis supplied). Also, that at about the time of decedent's death, "Major Grahm Emore, U.S.A., acting within the scope of his employment with Defendant, was present and supervising the work," and that said Major Grahm Emore was a, or the, "U.S. Army engineer" on the project. Referring to Major Emore and certain other Federal employees who were allegedly associated with the project, plaintiffs further allege, "These employees of the Government, engaged in the supervision of the construction of the Dam and within the scope of their employment, carelessly, heedlessly and negligently by act and omission failed to perform their duties under the statutes and regulations of the United States, and carelessly, heedlessly and negligently by act and omission failed to provide a reasonably safe place for said William M. Kirk to work, thereby causing the injury and death of said William M. Kirk." (Emphasis supplied.)

In response to defendant's request for admissions, plaintiffs admitted that they had "applied for and received a substantial sum under the Idaho Workmen's Compensation Act, and that said sum was paid plaintiffs by Bruce Construction Company and Russ Mitchell, Inc., as employers of said William M. Kirk, or by their insurer under the terms of said act." (Emphasis supplied.)

Defendant in support of its motion for summary judgment relies on the interpretation of 28 U.S.C.A. § 2674. This section provides as follows:

"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

Defendant contends that the United States should be classed "owner" or "employer" under Idaho's Workmen's Compensation Act, and as such is not subject to this action because plaintiffs have received compensation benefits from the contractors as a result of the death of said William M. Kirk, growing out of and in the course of his employment.

Section 72-203, I.C., provides as follows:

"The rights and remedies herein granted to an employee on account of a personal injury for which he is entitled to compensation under this act shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury."

Section 72-811, I.C., provides as follows:

"An employer subject to the provisions of this act, shall be liable for compensation to an employee of a contractor or subcontractor under him or who has not complied with the provisions of section 72-801 in any case where such employer would have been liable for compensation if such employee had been working directly for such employer. The contractor or subcontractor shall also be liable for such compensation, but the employee shall not recover compensation for the same injury from more than one party. * * *"

Section 72-1010, I.C., provides as follows:

"`Employer,' unless otherwise stated, includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is not the direct employer of the workmen there employed. If the employer is secured it includes his surety so far as applicable."

Plaintiffs assert that the Supreme Court of Idaho has held that the Workmen's Compensation Act does not bar an action for wrongful death by decedent-employee's estate or personal representatives against a third person; i. e., one not his employer, even though said employee or his estate or personal representatives have previously recovered compensation under the Act. In this we believe plaintiffs are correct, and, to this effect, Lebak v. Nelson, 1940, 62 Idaho 96, 107 P.2d 1054, is correctly cited. Plaintiffs contend that the United States is a "third party" and cannot claim to be an "employer" or "owner" under the Act since said act does not and cannot require the federal government to carry compensation insurance as an ordinary employer. The contractors performing the work for the United States were compelled to, and did comply with the Workmen's Compensation Laws of the State of Idaho, not only because of the terms of their contract with the United States, but because they were required to do so under the statutes of Idaho. Under the allegations of plaintiffs' complaint the contractors for whom the decedent was working at the time of his death were the agents of the defendant and the defendant maintained supervision and control of the construction. Under such circumstances the United States was the employer as defined by the Workmen's Compensation Laws of Idaho. Under and by virtue of the Federal Tort Claims Act the United States has consented to be sued for torts committed by it in the same manner and to the same extent as a private individual under like circumstances. The United States having submitted to suit as if a private person, its liability and defenses under local law must be considered in terms of the application of said local law to a private individual. It must be conceded that under the circumstances of this case a private individual would not be liable to the plaintiffs due to the provisions of Section 72-203, I.C.

Plaintiffs insist that the United States, as owner of the premises, does not fall within the statutory definition of employer under Sections 72-1010, I.C. In support of this proposition plaintiffs cite Moon v. Ervin, 64 Idaho 464, 133 P.2d 933. In this case the owner of property upon which he had let a contract for the construction of a home was held not to be an employer within the meaning of the Workmen's Compensation Act. However, the owner had not retained any right to control or direct the activities of the contractor's employees on the job. Gifford v. Nottingham, 1948, 68 Idaho, 193 P.2d 831, wherein a general contractor was sued by an employee for wrongful death, holds that the city for whom the contractor was doing the job was not an "employer" within the Act. The Moon case, supra, was cited as authority. The rule announced in those cases is reasonable and correct under the circumstances, but does not seem to be applicable under the facts of this case. As hereinabove stated, the plaintiffs have alleged that defendant was "engaged in the construction of a dam", "that said project was being carried out by the Department of the Army", that the "Dam, the control works and the land occupied thereby, were in the possession of and under the control, dominion and authority of said Defendant, the United States of America", and that a Federal official, Grahm Emore, "acting within the scope of his employment with Defendant, was present and supervising the work" at the time of decedent's death. The allegations of the plaintiff's complaint makes the defendant an employer within the meaning of Section 72-1010, I.C. The defendant being an employer within the meaning of the Idaho Workmen's Compensation Act, it follows that under Section 72-203, I.C., plaintiffs exclusive remedy for the death of said William M. Kirk was, and is, the admitted collection of Workmen's Compensation benefits and therefore plaintiffs are estopped from bringing this action.

Plaintiffs contend that under the Federal Tort Claims Act the United States generally may be sued in tort as if an individual, and that in addition to having waived its immunity to suit, it also has waived...