Legare v. United States

• Decision Date: 15 February 1961
• Docket Number: No. 4413-Civ.-J.,4413-Civ.-J.
• Citation: 195 F. Supp. 557
• Parties: Armand F. F. LEGARE, as Administrator of the Estate of Violet Alida Legare, deceased, and as surviving spouse of Violet Alida Legare, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

195 F. Supp. 557

Armand F. F. LEGARE, as Administrator of the Estate of Violet Alida Legare, deceased, and as surviving spouse of Violet Alida Legare, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. 4413-Civ.-J.

United States District Court S. D. Florida, Jacksonville Division.

February 15, 1961.

Nichols, Gaither, Beckham, Colson & Spence, Miami, Fla., for plaintiff.

E. Coleman Madsen, U. S. Atty., John L. Briggs, Asst. U. S. Atty., Jacksonville, Fla., for defendant.

SIMPSON, Chief Judge.

This action is brought under the Federal Tort Claims Act, §§ 2671-2680, Title 28 U.S.Code. This Court has jurisdiction under § 1346(b), Title 28 U.S. Code. Plaintiff asserts two distinct causes of action arising from the death of Mrs. Violet Alida Legare on April 6, 1959. The first cause of action is that of Armand F. F. Legare, individually, as surviving spouse of the decedent for damages for her wrongful death under Florida Statutes 768.01, F.S.A. and 768.02. The second claim is brought by Mr. Legare as administrator of the decedent's estate to recover under the Florida Survival of Action Statute, § 45.11 F.S.A. for his decedent's conscious pain and suffering as damages accruing to her and surviving to the personal representative under the Florida Statute, between the date of injury, March 17, 1959, and the date of death, April 6, 1959.

The case was tried before the Court, without a jury, and submitted by counsel for the respective parties on all issues of fact and law. Thereupon the Court makes the following

Findings of Fact

1. Jurisdiction is present, under the applicable statutes, noted above.

When the case was called for trial on the date it was set, October 6, 1960, with the parties, their counsel and their witnesses present for trial pursuant to notice, Government counsel suggested lack of jurisdiction or improper venue under Rules 3 and 7 of the Local District Rules. The original injury occurred in Key West Naval Hospital, Monroe County, Florida, in this District but in another Division (created by Local Rule 3, not by statute), and death occurred at Walter Reed Hospital, Washington, D. C. Jurisdiction is clearly present. The venue question was not timely raised, assuming it to be valid, and no prejudice to the rights of the Government in going to trial was suggested. The objection was overruled as being without substance.

2. At the opening of the trial, counsel for the Government admitted the liability of the defendant under the Tort Claims Act, and made specific admissions of record to pertinent paragraphs of the complaint with the exception of the allegations of damages. The case was tried on the issue of damages only, with the following matters admitted without further proof:

That on or about March 17, 1959, the plaintiff's decedent underwent pelvic surgery at the U. S. Naval Hospital in Key West, Florida, and that such surgery was performed by agents, servants and employees of the United States, that is United States Navy doctors, acting within the course and scope of their agency, service and employment; that before, after, or in the course of said operation, blood was introduced into the body of the decedent by the Navy doctors, of a type and RH factor which constituted a major mismatching of her blood. (In this connection it was admitted only that if the Navy doctors were called to testify it would be their medical opinion that there was a major mismatching of blood, and that there would be no other testimony on the point so that the Court is required to find for the plaintiff as to this factual issue); that the mismatching of blood was due to the negligence of employees of the United States; that as a direct and proximate result of the major mismatched blood transfusion, the decedent's physical condition rapidly deteriorated and she was moved to Walter Reed Hospital, Washington, D. C., where she died April 6, 1959, as a proximate result of the said carelessness and negligence of the defendant's employees, acting in the course and scope of their duties. It was also stipulated that Mr. Legare is the duly qualified and acting Administrator of his wife's Estate.

3. Except for cross-examination of the witnesses for the plaintiff, the defendant introduced no evidence. The following findings deal with the questioned issues of damages upon the two separate claims under the applicable Florida Statutes, the action of the surviving spouse of Mrs. Legare under §§ 768.01 and 768.02 F.S.A., and the Administrator's action under § 45.11 F.S.A.

Damages to Mr. Legare as Surviving Spouse

4. Mr. Legare is a career officer in the Submarine Service of the United States Navy. His present rank is Lt. Commander, and his present assignment is Commanding Officer of the USS Bicuna, a Guppy 1-A, Snorkel Submarine. He was given that command in September, 1959. The trial date was especially arranged to meet his shore time between cruises. He had then just returned from a cruise in undisclosed waters, of 58 days, during which time no "liberty ports" were entered, and during 39 days of which time the ship remained submerged, "snorkeling."

He entered the Navy as an enlisted man January 2, 1941, two days after his 17th birthday, and was picked from the ranks to attend Annapolis by a Navy Selection Board, as a result of rigorous competitive examinations. He was engaged in extensive action under fire in the Pacific aboard a heavy gun cruiser in late 1941, and until September, 1942, when he entered the U. S. Naval Academy as a Midshipman. He graduated in June 1945, and was commissioned as Ensign. A month later he married his childhood sweetheart, Violet Alida, in his home town of Haverhill, Massachusetts.

5. Mr. Legare's entire service as an officer has been spent in submarines. Members of that service are selected, from volunteers, and may be said to constitute an elite, dedicated and carefully chosen branch of the Navy. The importance of this service in the defense and retaliatory plans of this nation is a matter of general knowledge and requires no comment. Performance of his duties by Mr. Legare entails long absences at sea, when he is completely out of touch with his family and their welfare, at a time when his responsibilities are most demanding.

An official Navy publication (Pl.Ex. No. 2) says:

"The family of the naval officer is a vitally important part of the Navy team. Far more so than in civilian life, the Navy wife has the opportunity to further her husband's career. Her patience and understanding, her acceptance of additional family responsibility contribute immeasurably to his peace of mind. Considering the responsibilities of an officer in the world's foremost Navy, it is readily apparent that his peace of mind is essential to the best performance of his duty. It is no wonder then that the welfare of his wife and family, leading to a happy home life, play such a major role toward the success of the Navy."

This official view deals with U. S. Naval officers and their families generally, and takes on added emphasis when applied to an officer of the Submarine Service.

6. The evidence of those who knew her, unnecessary to recapitulate in detail, demonstrates that Mrs. Violet Alida Legare fully met her responsibilities as a wife and mother. She was an excellent Navy wife, in all that that term expresses and implies. She was her husband's partner, playmate and helpmate, and a devoted and conscientious mother. The children's care, their education, their social and religious training received her constant loving attention and understanding.

7. This couple had six children, two girls and four boys, including Michael, the youngest, born by Caesarian section March 17, 1959, on the occasion of his mother's receiving the fatal mismatching of blood. The names and ages (at the time of the mother's death) of the others are: Joan, 12, Charles, 10, Armand, 8, Marie, 3, and Felix, 2. Since their mother's death the three older children have made their home with Mr. Legare's brother, Phillip, a retired naval officer, and his wife, at Salem, New Hampshire. The three younger ones are being cared for in the home of Mr. Legare's sister, Blanche, and her husband (a double amputee, from wounds received in the Battle of the Bulge), at Haverhill, Massachusetts. The two places are eight or ten miles apart, and the children visit with each other often. For care of his...