National Mfg. Co. v. United States

• Decision Date: 05 March 1954
• Docket Number: 14894.,No. 14875,14901-14904,14875
• Citation: 210 F.2d 263
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NATIONAL MFG. CO. et al. v. UNITED STATES. GREAT WESTERN PAINT MFG. CORP. v. UNITED STATES. MID-CENTRAL FISH CO. v. UNITED STATES. WESTERN MERCANTILE CO. v. UNITED STATES. COUCH TRACTOR & EQUIPMENT CO. v. UNITED STATES. CHARLES P. SHIPLEY SADDLERY & MERCANTILE CO. v. UNITED STATES.

210 F.2d 263 (1954)

NATIONAL MFG. CO. et al. v. UNITED STATES.

GREAT WESTERN PAINT MFG. CORP. v. UNITED STATES.

MID-CENTRAL FISH CO. v. UNITED STATES.

WESTERN MERCANTILE CO. v. UNITED STATES.

COUCH TRACTOR & EQUIPMENT CO. v. UNITED STATES.

CHARLES P. SHIPLEY SADDLERY & MERCANTILE CO. v. UNITED STATES.

Nos. 14875, 14901-14904, 14894.

United States Court of Appeals Eighth Circuit.

February 8, 1954.

Rehearing Denied March 5, 1954.

COPYRIGHT MATERIAL OMITTED

Clay C. Rogers and Byron Spencer, Kansas City, Mo. (James W. Benjamin, Joseph J. Kelly, Jr., Gordon Leonard, Rogers, Field & Gentry, Spencer, Fane, Britt & Browne, and Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., on the briefs), for appellants Nat. Mfg. Co. and others.

Roy K. Dietrich, Kansas City, Mo. (Edwin Earnshaw and Dietrich, Tyler & Davis, Kansas City, Mo., on the brief), for appellant C. P. Shipley Saddlery & Mercantile Co.

Warren E. Burger, Asst. Atty. Gen. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., Paul R. Shy, Asst. U. S. Atty., Chillicothe, Mo., and Paul A. Sweeney and Morton Hollander, Attorneys, Department of Justice, Washington, D. C., on the briefs), for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

Rehearing Denied in No. 14894, March 5, 1954.

WOODROUGH, Circuit Judge.

These six appeals are taken to reverse judgments which dismissed actions sought to be maintained under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., to recover damages from the United States for property loss and damage suffered by the plaintiffs at their places of business in Kansas City, Missouri, in the course of the July, 1951, Kansas River flood.¹ A motion for summary judgment for defendant under Rule 56, Fed.Rules Civ.Proc. 28 U.S.C.A., on the ground that "the pleadings now on file indicate there is no genuine issue of fact and that the defendant is entitled to judgment as a matter of law", was sustained in each of the cases. Five of the appeals have been consolidated for all proceedings in this court and the sixth appeal (No. 14,894) was argued orally with the others. A single brief for the government is made applicable to all the appeals.

The complaint of National Manufacturing Company, followed in the four cases consolidated with it on appeal, alleged that the Kansas River is a navigable stream subject to federal jurisdiction with its head waters and tributaries extending into the states of Nebraska, Colorado and Kansas, and flowing into the Missouri River at Kansas City; that extensive industrial and residential areas lie adjacent to the river and occupy lowlands within and near Kansas City, Missouri; Kansas City, Kansas; Lawrence and Topeka, Kansas, and all along the course of said Kansas River, which said lowlands have at various times been subjected to overflow and inundation by flood waters of said Kansas River; that the United States in exercising its jurisdiction over said river through its various departments and agencies has constructed flood control dams, levees, dikes and other works, recognizing the dangers and disasters of floods of said river and seeking to minimize and prevent the same; that the United States through its various departments, including the Department of Commerce, the section of Geological Survey of the Department of the Interior, the Weather Bureau of the Department of Commerce, the River Forecasters Division of the Weather Bureau, Bureau of Reclamation, the Department of Defense and the Army Engineers of the Department of the Army, has for many years as required by statute, departmental rules and regulations, the Appropriation Acts of Congress, custom and practice, made surveys, forecasts, recordings, and gathered information concerning the waters of the River, and its rise and fall, rainfall and precipitation through its entire course, including the course of its tributaries, all for the purpose of gathering information of a reliable nature to disseminate and give to, and for the protection of, various persons, firms and corporations whose lives and property would be and are, subject to the influence of, and rise and fall of said River, and particularly the floods of said River.

The United States and its various departments and its officers, agents and employees of said departments, at all times, knew that the information and knowledge gathered and obtained by said various departments and the officers, agents and employees of said departments should be accurately collected and accurately and diligently transmitted as information to all of the persons, firms and corporations whose property and lives might be affected by the flood waters of said River. And defendant, its said officers, agents and employees knew that the public, generally, and the persons for whose benefit this action is prosecuted in particular would rely upon and would act upon the information supplied and disseminated, as aforesaid, in making determinations as to the necessity of the removal or protection of property, chattels and effects from and within locations subject to inundation by the flood waters of the Kansas River.

About the 9th day of July, 1951, the said Kansas River entered the flood stage which said action of said river was well known to and recognized by the defendant, its officers and agents and employees, and particularly the Corps of Army Engineers and the Geological Survey Section and River Forecasters of the Weather Bureau. After said river had entered said flood stage, the defendant, through its said department and agencies, with offices and headquarters located in Kansas City, Missouri, Kansas City, Kansas, Lawrence, Kansas, Topeka, Kansas, and elsewhere along said River, and while said officers, agents and employees of the defendant were acting within the scope of their offices and employment, committed such negligent and careless acts and omissions, and so carelessly and negligently disseminated misinformation respecting the course and action of the flood waters of said River, and so negligently and carelessly omitted and failed to disseminate accurate, reliable and factual information readily available, and as a direct result of said negligent acts and omissions, and also as a direct result of negligent assurances, all as hereinafter more particularly alleged, the plaintiffs herein, and others for whose benefit this action is brought, as hereinafter alleged, were misinformed concerning the stage of said River and flood waters flowing therein, and of the certainty that the flood waters of said River would overflow the dikes and levees along the course of said River and, particularly, at Kansas City, and would enter the lowlands and flood and overflow and damage and destroy property within said lowlands.

After the Kansas River had entered the flood stage, and when defendant and its said officers, agents and employees knew, or, in the exercise of ordinary care, should have known, that the said River would greatly overflow its banks, dikes and levees and would inundate the Southwest Industrial and Central Industrial Districts of Kansas City and adjacent lowlands, the said officers, agents and employees of the United States, while acting within the scope of their employment, committed such negligent and careless acts and omissions in carelessly and negligently publishing, circulating, broadcasting and disseminating misinformation respecting the course and action of the flood waters of said River, and in negligently failing and omitting to publish, circulate, broadcast, disseminate and transmit accurate and reliable information readily available to such officers, agents and employees, and to defendant, as more particularly hereafter alleged, that plaintiff and others in like and similar circumstances were greatly misinformed and misled by such negligent acts, omissions and conduct to their great damage as hereinafter specified.

On the 9th, 10th, 11th, 12th and 13th days of July, 1951, the defendant, its officers, agents and employees, and particularly the Army Engineers, River Forecasters, Weather Forecasters, members of the Geological Survey Section, located and having offices in Kansas City, Missouri; Kansas City, Kansas; Lawrence, Kansas; Topeka, Kansas and elsewhere, had facts and knowledge available to them, which facts and knowledge definitely and conclusively indicated and showed that said Kansas River was reasonably likely to, and would greatly overflow its banks and dikes and levees, on the 13th day of July, 1951, and would overflow and inundate the great Industrial Districts, both in Kansas City, Missouri, and would overflow and inundate plaintiffs' places of business and would ruin, damage and destroy plaintiffs' portable and removable and other property.

All of said information, facts and knowledge were readily accessible and available to said officers, agents and employees of defendant, and it was the duty of said officers, agents and employees to assemble said facts, knowledge and information, and to inform plaintiffs and all others, of the likelihood and danger and imminence of the overflow and flooding of said Kansas River, and, notwithstanding the existence and availability of said facts, information and knowledge, the defendant and its said agents, officers and employees, carelessly and negligently,

(a) Omitted, failed and neglected to accurately assemble, analyze, collect and distribute said information and inform the plaintiffs and all others similarly situated that said Kansas River was reasonably certain to greatly overflow its banks and said dikes and levees and inundate all of the said low lying areas, including the Southwest Industrial District and the Central Industrial District;

(b) The defendant, its said officers, agents and employees negligently and carelessly assured the plaintiffs and all others similarly situated that said Kansas River would not overflow its banks and said dikes and levees, and that said Southwest Industrial District...