Swanner v. United States, Civ. A. No. 2517-N.
Decision Date | 26 January 1970 |
Docket Number | Civ. A. No. 2517-N. |
Citation | 309 F. Supp. 1183 |
Parties | Jessee E. SWANNER; Wilma S. Swanner; Jacqueline Ann Gibson, a minor three years of age, who sues by and through Jack Gibson, her father and next friend; Susan Renee Gibson, a minor two years of age, who sues by and through Jack Gibson, her father and next friend, Plaintiffs, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — Middle District of Alabama |
COPYRIGHT MATERIAL OMITTED
William A. Oldacre, Hill, Hill, Stovall, Carter & Franco, Montgomery, Ala., for plaintiffs.
Macon L. Weaver and E. Ray Acton, Spec. Asst. U. S. Attys., Birmingham, Ala., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was commenced pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., by the above-named plaintiffs seeking to recover damages for personal injuries and property damage sustained in an explosion of a dwelling house which they were occupying. This is the second time this case has been before this Court, a judgment for the defendant having been rendered November 21, 1967. Swanner v. United States, 275 F. Supp. 1007. This judgment was reversed and the case remanded to this Court for a new trial by the United States Court of Appeals for the Fifth Circuit. Swanner v. United States, 406 F.2d 716 (1969). In reversing the judgment of this Court, the Court of Appeals stated that the plaintiffs had been "held to a standard of proof stricter than that of a preponderance of the evidence." Upon remand of this case to this Court the matter was set for a hearing upon both the issue of liability and the issue of damages.
This Court, having considered the evidence presented at the second trial and the testimony of the first trial that was admitted and considered upon this submission by agreement of counsel, now makes the appropriate findings of fact and conclusions of law. The findings of fact entered in the first order of this Court are adopted with some changes as hereinafter set out; these changes primarily concern the question of proximate cause. The evidence presented upon the second trial was not substantially different from that presented upon the first trial. In this Court's first decision it was held that the United States had a duty to protect Jessee E. Swanner and the members of his family and that it had negligently breached that duty. A condensed version of the facts, set out more specifically in the first opinion of this Court, reflects that on April 22, 1966, a bomb exploded under the house that was occupied by the four plaintiffs. This bomb demolished one side of the house, damaged and destroyed the furniture in the house, and injured all four of the plaintiffs. Plaintiff Jessee E. Swanner had been for some time prior to the explosion employed by the Alcohol and Tobacco Tax Division of the Internal Revenue Service as a "special employee" to aid in the undercover investigation of illicit whiskey operations in Giles County, Tennessee. As a result of information developed in that investigation, indictments were returned against several persons in and around Giles County, Tennessee, including one Ed McGlocklin. Swanner had testified against two persons accused of violations of the Internal Revenue Laws and had been scheduled to give testimony before a federal grand jury that was to convene in Tennessee in the spring of 1966. This grand jury was to investigate the Giles County illicit whiskey operation that had been headed by Ed McGlocklin.
Plaintiffs' action against the United States is on the theory that the government negligently breached its duty to protect plaintiff Jessee E. Swanner and his family and that the government, through its agents, had heedlessly imparted to Swanner a false impression of safety and lack of danger. The evidence is without conflict concerning McGlocklin's general reputation for and his history of being a person of violence. On at least one occasion prior to his discovering Swanner's relation with the United States, McGlocklin, in the presence of Swanner and another government undercover agent, stated that he would kill anyone who informed the authorities of his operations. After discovering Swanner was an undercover agent, McGlocklin, with knowledge that Swanner was residing in the Montgomery, Alabama, area, stated that Swanner would never testify against him. This threat was indirectly communicated to Swanner in April 1965.
The United States, through the agents of the Alcohol and Tobacco Tax Division of the Internal Revenue Service, had knowledge not only of the generally dangerous nature of undercover work, but also of threats made concerning informers generally and Swanner specifically prior to the bombing of the house in Montgomery, Alabama. Immediately after learning of the threat made by McGlocklin, Swanner called Agent Keathley, the agent in charge of the Nashville, Tennessee, office of the Alcohol and Tobacco Tax Division of the Internal Revenue Service. Upon learning from Keathley that McGlocklin was at large and being sought for the purposes of arrest and prosecution, Swanner volunteered to return to Tennessee to act as a decoy to aid in the apprehension of McGlocklin. He was advised not to take this course, that he would be safe from McGlocklin as long as he remained in Alabama. Swanner also called Thomas Allison, the agent in charge of the Montgomery office of the Alcohol and Tobacco Tax Division of the Internal Revenue Service. Allison also advised him that in his judgment he was safe from McGlocklin as long as he remained in Alabama. Swanner made no specific request for protection and was without any protection from any agency of either the state or federal government at the time of the bombing of his house.
Jacqueline Ann Gibson and Susan Renee Gibson, granddaughters of plaintiffs Jessee E. Swanner and Wilma S. Swanner, each claim, separately, through their father and next friend, monetary damages for personal injuries received in the explosion. At the time of the explosion, each of the girls was asleep with one of her grandparents in separate rooms of the house. Their injuries consisted of superficial cuts, scratches and bruises. Jacqueline Ann Gibson has exhibited some evidence of nervousness since the bombing; however, according to the evidence, this is not serious or permanent.
Mrs. Wilma S. Swanner was the most seriously injured of the plaintiffs. She claims monetary damages for permanent personal injuries and the incidental medical expenses. As a result of a serious fracture of the pelvis, she required hospitalization for a period of three weeks and further bed rest at home. When she became ambulatory, she could not walk without the assistance of crutches for a period of some six months. As a result of a severe laceration, which penetrated her left cheek and caused her to lose three teeth, she now has a facial scar on the left cheek and a twitch on the left side of her face, which, according to the neurosurgeon, is aggravated by stress. She continues to suffer from headaches and to be subjected to blackout spells, which, according to the medical evidence, are related to "petit mal" convulsive disorders. Mrs. Swanner also has scars from lacerations on her chin and legs.
Jessee E. Swanner claims monetary damages for personal injuries, loss of services of his wife, and damages to personal property. The personal property damage was to furniture and other household goods of the value of approximately $1,500, which were destroyed or damaged beyond repair as a result of the explosion. His personal injuries in the explosion proper consisted of minor cuts, scratches and bruises. He suffered cuts of both feet and both hands in an attempt to extricate his wife from the rubble. Prior to the incident, Mrs. Swanner was able to do all her household work without assistance. Since she can no longer do this work, Mr. Swanner either has to do the work himself or has to employ outside help. Mr. Swanner has incurred medical and hospital expenses of...
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