Porter v. United States, Civ. No. 4341

• Decision Date: 04 February 1955
• Docket Number: 4352.,Civ. No. 4341
• Citation: 128 F. Supp. 590
• Court: U.S. District Court — District of South Carolina
• Parties: John A. PORTER, a minor, by his Guardian Ad Litem, Mrs. Alvarene Jones, Plaintiff, v. UNITED STATES of America, Defendant. Cecil W. PORTER, Plaintiff, v. UNITED STATES of America, Defendant.

128 F. Supp. 590

John A. PORTER, a minor, by his Guardian Ad Litem, Mrs. Alvarene Jones, Plaintiff, v. UNITED STATES of America, Defendant.

Cecil W. PORTER, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. Nos. 4341, 4352.

United States District Court, E. D. South Carolina, Columbia Division.

February 4, 1955.

John Grimball and C. T. Graydon, Columbia, S. C., for plaintiffs.

N. Welch Morrisette, Jr., U. S. Atty., and Irvine F. Belser, Jr., Asst. U. S. Atty., Columbia, S. C., for defendant.

WILKIN, District Judge.

These two cases were combined for trial because they arose out of the same circumstances. The jurisdiction of this Court arises from the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. The plaintiff, John Porter, a minor about twelve years old, seeks damages for an injury which he received to his left hand from an explosion of a military trip-flare fuse. The plaintiff, Cecil Porter, father of John Porter, seeks damages for the loss which he suffered from the injury to his son. The complaints allege that the injuries, which the boy suffered, were caused by the negligence and carelessness of the agents and servants of the defendant. The essential facts of the case were not in dispute. The question presented to the Court is whether in view of the facts the defendant is legally liable for the damage which the plaintiffs suffered.

At the time of the accident, the plaintiffs lived near Fort Jackson. They still live at the same place, and Cecil Porter is a Sergeant in the United States Army and stationed at Fort Jackson. The house in which the plaintiffs live is located in an area that was formerly used as a military camp, but which about seven years ago was turned back to civilian owners. Although the house which the plaintiff, Cecil Porter, rents is several hundred yards from the nearest house, there is a substantial civilian settlement and a trailer camp quite near. Many of the houses in the area adjoining the camp are occupied by families of army personnel.

Since the area adjoining Fort Jackson is not under military control or control of the Federal government, and is no part of any municipality, no system of garbage disposal was afforded the residents. A very general but bad practice grew up of disposing of household trash and garbage by dropping it along the roads and in the open country beyond the plaintiff's house. Some of the empty cans found in the area were the same as cans used by the army for military rations. Several hundred yards beyond the plaintiff's home, the plaintiff found certain military ordnance items, such as empty cartridge boxes, some boxes or cans containing explosive cartridges, fuses, cartridge belts, and other equipment for machine guns.

Across the road from where this ordnance material was found, the fuse was picked up which caused the injury to the plaintiff's hand. It was carried to the home of the plaintiffs, and the boy was allowed to play with it in the presence of his mother and grandfather. When he pulled a little ring on the fuse, it exploded. He was burned in the face and on the leg, and the thumb and the index finger of his left hand were blown away, together with the tip of the next finger. The evidence revealed that the boy had a supply of army ordnance material in a drawer in his home. The boy's father testified that he had given his son warning in regard to military explosives and had told him that "he shouldn't pick up any of the stuff that he sees," and "told him that it was dangerous."

The boy's father and mother testified that they had seen military trucks carry "trash and stuff," pass their home and dump it in the area where other refuse had been deposited. On cross-examination, the plaintiff, Cecil Porter, was asked, "Did you ever see any trucks dumping explosives yourself?" And he answered, "No, sir, I never seen them dumping any explosives." There was no direct testimony to indicate how the ordnance material or the fuse, which caused the injury, reached the place where they were found.

The injury to the boy's hand occurred in June and, in the month of March prior, the plaintiff, Cecil Porter, had reported to military authorities at Fort Jackson that military material had been found near his home. An officer, familiar with ordnance material, made an investigation and himself found some gun powder and a live flare. He burned the gun powder and discharged the flare. His investigation, however, did not disclose where the material had come from.

The evidence tended to prove that the minor plaintiff was injured through the explosion of a flare fuse, found on privately owned land a mile or so from Fort Jackson, and that occasionally military trucks had been seen dumping trash and refuse in the area where the fuse had been found, and where extensive dumping of garbage and other refuse and trash was being indulged in by civilians living in the neighborhood. The plaintiffs argue that a very high degree of care is imposed upon the defendant because of the dangerous character of munitions of war. They argue that because the fuse was originally army equipment, it could not have been deposited where the plaintiff found it, except through some neglect or default of some agent or servant of the defendant, and that, because army trucks had been seen dumping trash, the men in charge of the trucks were acting within the scope of their employment.

Counsel for the government on the other hand argue that there is no evidence...