Market Insurance Company v. United States, 26410.

• Decision Date: 08 September 1969
• Docket Number: No. 26410.,26410.
• Parties: MARKET INSURANCE COMPANY, Plaintiff-Appellant, Eva Nell Killion, widow of Jerome Killion, Deceased, and as Parent, Natural Guardian and Next Friend, et al., Intervening Plaintiff-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 459 (1969)

MARKET INSURANCE COMPANY, Plaintiff-Appellant, Eva Nell Killion, widow of Jerome Killion, Deceased, and as Parent, Natural Guardian and Next Friend, et al., Intervening Plaintiff-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 26410.

United States Court of Appeals Fifth Circuit.

September 8, 1969.

W. Swan Yerger, Jackson, Miss., Heidelberg, Woodliff & Franks, Jackson, Miss., of counsel, for appellants.

Robert E. Hauberg, U. S. Atty., W. E. Morse, Joseph E. Brown, Jr., Asst. U. S. Attys., Jackson, Miss., for appellee.

Before COLEMAN and GODBOLD, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge:

The prior opinion and judgment of this Court of June 10, 1969, are withdrawn, and the following opinion substituted therefor.

This action was brought against the United States of America for the wrongful death of Jerome Killion, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq., by plaintiffs-appellants, Market Insurance Company and Eva Nell Killion, widow of Jerome Killion, deceased, and as guardian and next friend of seven minor children.

Appellants challenge the findings of fact and conclusions of law by the District Court, claiming they are clearly erroneous and contrary to the law. The District Court found for the United States. We uphold the District Court's findings and affirm the judgment.

At the time of his death on July 18, 1964, Jerome Killion was an employee of Loftin & Woodard, Inc. (hereinafter referred to as Loftin), which company had a contract with the United States Corps of Engineers to remove brush, logs and stumps from the Tchula Lake area in order to accelerate the flow of water during flood conditions. Market Insurance Company, as the workmen's compensation carrier for Loftin, paid compensation benefits for which it seeks reimbursement from the United States. Eva Nell Killion, on behalf of herself and children, sues to recover for the death of her husband. The United States filed a third-party action against Loftin, but Loftin is not a party to this appeal. Upon a trial without a jury, the District Court dismissed the suit of Market Insurance Company and Eva Nell Killion.

On July 18, 1964, Jerome Killion, acting under authority and permission from the foreman of Loftin, was operating one of its motor boats and was returning in the boat from work to base camp when the boat struck a submerged highway bridge turntable located in the center of Tchula Lake. This collision caused another of Loftin's employees, Matthew Dukes, Jr., to fall overboard. While attempting to rescue this employee, Jerome Killion had a heart attack and died from shock. Matthew Dukes, Jr. drowned.

The submerged turntable was approximately 10 to 12 inches under water on the day of the accident. The width of Tchula Lake at the point of the collision was approximately 200 to 250 feet and the submerged bridge turntable was approximately in the center of the lake, located a short distance north of the base camp.

In accordance with the contract, the Corps of Engineers furnished Loftin certain drawings and maps of Tchula Lake. Although one of these drawings showed certain obstructions, prior to the collision the submerged bridge turntable was not shown. Neither was the turntable itself marked in any way which might serve as a warning.

The findings of fact as actually made by the trial court cannot be set aside by this Court unless clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20, 24 (1954); Pennington v. Colonial Pipeline Co., 387 F.2d 903 (5th Cir. 1968); Barron & Holtzoff, Federal Practice and Procedure § 1121 (Wright ed., 1961).

The District Court found that it was the sole duty of the contractor, Loftin, to warn its employees of any hidden hazards in Tchula Lake. Appellants contend that the United States Corps of Engineers was under a non-delegable duty either imposed by contract or by law, to ascertain the presence and location of any large or latent obstructions in Tchula Lake and to warn decedent or to see that a warning was given to him.

Under the provisions of 28 U.S.C. § 2674 the United States is liable under the Federal Tort Claims Act in the same manner as a private individual in like circumstances. Fair v. United States, 234 F.2d 288 (5th Cir. 1956); United States v. Campbell, 172 F.2d 500 (5th Cir. 1949), cert. denied 337 U.S. 957, 69 S.Ct. 1532, 93 L.Ed. 1757 (1949). This wrongful death action is governed by the tort law of Mississippi since the alleged negligent acts or omissions occurred there. 28 U.S.C. § 2674. An heir cannot recover under the Mississippi Wrongful Death Statute unless the deceased himself could have recovered had he not been killed. Mississippi Code 1942, § 1453. Under the Mississippi law of negligence a private party would not be liable to the deceased.

No Mississippi cases precisely in point have been brought to the attention of this Court. However, under Mississippi law the United States owed to Loftin as an invitee a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the channel snagging operation, not to expose Loftin to unreasonable risk and to give Loftin adequate and timely notice and warning of latent perils which were known to it but not to Loftin. Nowell v. Harris, 219 Miss. 363, 68 So.2d 464 (1954); Strand Enterprises v. Turner, 223 Miss. 588, 78 So.2d 769, 47 A.L.R.2d 1431 (1955). The trial court properly concluded that in view of the nature of the work (removal of brush, logs and stumps from the lake) and the conditions under which it was to be performed, the United States was not under a duty to Killion to foresee the actual catastrophe which occurred. Cf. Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302 (1952); Green Lumber Co. v. Sullivan, 208 Miss. 651, 45 So.2d 243 (1950); Jefferson v. Callender, 198 Miss. 626, 22 So.2d 490 (1945). Moreover, the parties stipulated that the presence and location of the turntable was not known to any employee of the United States or the Corps of Engineers.

As a general rule, "the employer shall not be answerable for an injury resulting from the manner in which the details of the work are carried out by the independent contractor". 27 Am.Jur. Independent Contractor § 22, p. 505. But see Emelwon, Inc. v. United States, 391 F.2d 9 (5th Cir. 1968), where the Court applied Florida law regarding the liability of the United States under the Federal Tort Claims Act resulting from failure to prevent harm from an inherently dangerous activity carried on by an independent contractor. Here, the United States did not reserve the right to direct the manner of the performance of the contract details such as how Loftin's employees would return to base camp. The United States was entitled to presume that Loftin would exercise reasonable skill and prudence in performing the details of the stipulated work.

Appellants claim that the Corps of Engineers undertook the responsibility of communicating safety information to the employees of Loftin. They claim that this duty arose by the terms of Loftin's contract with the United States and in particular the safety requirements imposed upon Loftin in the contract, and by the Corps' conduct in placing an inspector on the job with the responsibility of overseeing Loftin's safety practices.

The contract under which the snagging operation was being conducted is typical of contracts used by the Corps of Engineers in the construction of flood control and related projects. Loftin was required to perform the work "in strict accordance with the specifications, schedules, and drawings * * *" to be furnished by the contracting officer from time to time. Under the contract all workmanship is subject to inspection and examination by the Corps, and the United States retains the right to reject defective workmanship or require its correction.

Paragraph GC-16 of the contract provides as follows:

"GC-16 Accident Prevention.

(a) In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to property, materials, supplies and equipment; and for avoidance of work interruptions in the performance of this contract; the Contractor will comply with all pertinent provisions of the manual `Safety Requirements\' approved by the Chief of Engineers, 16 December 1941, as revised 16 April 1951, and as may be further amended, and will also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonably necessary for the purpose.

"(b) Prior to commencement of work the contractor will:

"(1) Submit in writing his proposals for effectuating this provision for Accident Prevention.

"(2) Meet in conference with representative of the contracting officer to discuss and develop mutual understanding relative to administration of the over-all safety program.

"(c) During the performance of work under the contract, the contractor shall comply with all procedures prescribed by the contracting officer for the control and safety of persons visiting the job site and will comply with such requirements to prevent accidents as may

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