Stewart v. United States, 10131.

• Decision Date: 10 January 1951
• Docket Number: No. 10131.,10131.
• Citation: 186 F.2d 627
• Parties: STEWART v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

186 F.2d 627 (1951)

STEWART v. UNITED STATES.

No. 10131.

United States Court of Appeals Seventh Circuit.

January 10, 1951.

John S. Burchmore, Robert N. Burchmore and Nuel D. Belnap, all of Chicago Ill., Walter, Burchmore & Belnap, Chicago: Ill., of counsel, for appellant.

Otto Kerner, Jr., John Peter Lulinski and Wm. Sylvester White, Jr., Asst. U. S. Atty., all of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.

On Petition for Rehearing.

MAJOR, Chief Judge.

This is an action for damages brought by Walter B. Stewart and his minor sons, Sinclair Stewart and Donald Stewart, by Walter B. Stewart, their next friend, against the United States of America, under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b). The damages claimed resulted from injuries sustained by the boys from the explosion of a hand smoke grenade which theretofore had been a part of a stock of such grenades maintained by the Army at Fort Sheridan, located in the State of Illinois.

The material facts are shown by the pleadings, affidavits attached thereto, by answers to interrogatories and by stipulation. Upon such facts both the plaintiffs and the defendant moved for summary judgment, whereupon the court overruled plaintiffs' motion and allowed that of the defendant. Consequently, the complaint was dismissed at plaintiffs' cost. From this order of dismissal the appeal comes to this court. Our previous opinion in this matter, rendered September 5, 1950, is withdrawn, and all orders entered pursuant thereto are vacated and set aside.

In the early months of 1947, the government's agents and the United States Army maintained a stock of hand smoke grenades, Mark 15, on the Military reservation known as Fort Sheridan, Illinois. The grenades were packed in boxes plainly marked with the word, "Fireworks." They were stacked in the open, not within a magazine or building, but covered over the top with a tarpaulin which did not conceal the lettering on the sides of the boxes. These stacked boxes of grenades were located within the Fort's Magazine Area, which was enclosed by a six-foot woven wire fence with three strands of barbed wire at the top. Within the same area were located magazine structures provided for the storage of ammunition and explosives. The Magazine Area was well within the perimeter or outside fence of the military reservation and was not visible to persons standing outside of such fence. No guard was maintained at the Magazine Area; however, the reservation was divided into two sections, in each of which was assigned a roving patrol. A large sign was posted on the roadway leading to the Magazine Area, which read, "Danger Military Explosives, This Road Closed to Public Traffic." Another sign on the gate of the magazine enclosure read, "Keep Out. No Smoking No Matches No Lighters Permitted in This Area."

The military reservation was open to the public, with free access to persons of all ages. There were sentries posted at the several gates in the perimeter fence but members of the public were permitted to come and go in the reservation without escort. The Magazine Area was accessible to the people. The perimeter fence had a large opening where it was broken down at a point near the Magazine Area and no sentry was posted at this opening. Among members of the public who frequented the reservation were high school boys from the adjoining village of Lake Forest, including Robert Toogood, age 15, George Baldwin, age 17, and the latter's younger brother, Leslie. Sometime in the early part of 1947, these three boys entered the reservation through the unguarded opening in the perimeter fence along the north boundary where the Fort adjoins the Lake Forest city dump. They saw the boxes, noticed that they were marked "Fireworks," scaled the woven wire fence and removed four boxes to their home. They shot off many of the grenades and left one case in a vacant lot next to the Baldwin residence in Lake Forest.

On September 10, 1948, Sinclair Stewart, age 8, and his six year old brother, Donald were playing in the neighborhood near their home and came across the box of grenades in the lot next to the Baldwin house. They picked up one of the grenades, which exploded in Sinclair's hand. As a result his right hand was shattered and his legs burned so that he was permanently disabled. Donald also suffered numerous severe burns.

Plaintiffs' claim for recovery rests upon two grounds. The first is that the user of explosives acts at his own peril and is, responsible for any injury resulting to innocent persons. Under this theory the user or possessor of such explosives becomes virtually an insurer and is liable even without negligence for any injury done. While there is some authority which tends to support this theory, in the view which we take of the case we find no occasion either to embrace or reject this theory of liability.

The second is that the government was negligent in the manner in which it stored the explosive grenades, thereby creating a situation which enabled their removal from the Magazine Area to a point where the Stewart boys were injured. In disclaiming liability, the government urges (1) that there was no negligence on the part of the government and its employees, and (2) even if there was negligence, that the injuries complained of were not the proximate result thereof but flowed from the wrongful act of the three high school boys in removing the grenades from the Magazine Area to the point where the injuries occurred, or more specifically, that the injuries complained of were the result of the wrongful act of third parties and that the government's negligence was not the proximate and efficient cause thereof.

In the beginning, we are confronted with the perplexing problem as to whether the law of Illinois with reference to negligence and proximate cause is to be given effect. Plaintiffs urge that it should be, including an Illinois statutory provision directed at the manner in which explosives shall be stored. The government insists that this statutory provision is of no effect, although it tacitly concedes that the law of Illinois as announced by its courts is controlling insofar as it relates to common law negligence and when such negligence is excused because of the intervening act of a third party.

Sec. 143 et seq., Chap. 93, Smith-Hurd Illinois Annotated Statutes, provides in detail the manner and means to be employed for the storage of explosives. Sec. 145 with exceptions not here material, provides "no person shall possess or store explosives unless such explosives are completely enclosed or encased in tight metal, wooden or fibre containers. * * * Every container shall be plainly marked with the name of the explosive contained therein." Sec. 146, with exceptions not here material, provides, "all explosives shall be stored, in magazines * * *." Sec. 147 provides, "Magazines in which explosives shall be lawfully kept or stored shall be constructed of brick, concrete, iron or wood covered with iron, and shall have no openings except for ventilation and entrance." Sec. 148 provides, "The doors of magazines shall be kept closed and locked at all times except, when opened for storage or removal of explosives by persons lawfully entitled to enter the same." Sec. 154 provides for fines and imprisonment for those who fail to comply with any provisions of the Act.

This Illinois statute was enacted in 1939 long subsequent to the cession by the State to the Federal Government of the Fort Sheridan territory. For this reason, defendant contends that it forms no part of the law of Fort Sheridan where the alleged negligent acts occurred; in other words, that the statute is without application.

It must be admitted, so we think, that the cases sustain this view, in the absence of legislation by Congress making the law of the State or locality applicable. In James Stewart & Co. v. Sadrakula, 309 U. S. 94, 99-101, 60 S.Ct, 431, 434, 84 L.Ed. 596, is a good discussion of the situation in the absence of such legislation, as well as the recognized desire on the part of Congress to provide for a uniform standard of liability. After pointing out that "future statutes of the state are not a part of the body of laws in the ceded area", the court stated: "Congressional action is necessary to keep it current. Consequently as defects become apparent legislation is enacted covering certain phases. This occurred as to rights of action for accidental death by negligence or wrongful act." In support of this quote, the court cites Title 16 U.S.C.A. § 457, entitled "Action for death or personal injury within national park or other place under jurisdiction of United States; application of State laws". This section provides, under the circumstances therein enumerated: "* * * the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be." The government contends that this provision is not applicable to the instant situation. Any doubt in this respect, however, need not be resolved, by reason of Sec. 1346, Title 28 U.S.C.A., commonly referred to as the Federal Tort Claims Act, enacted in 1948, the relevant portions of which provide that a United States District Court "shall have exclusive jurisdiction of civil actions on claims against the United States, * * * for * * * personal injury or death caused by the negligent or wrongful act or omission of any employe of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." No question is raised but that those in charge of Fort Sheridan and in possession of the explosive grenades were "acting within the scope of his office or employment," and admittedly the Fort Sheridan area was within and a...