Swanner v. United States

• Decision Date: 04 February 1969
• Docket Number: No. 25841.,25841.
• Parties: Jessee E. SWANNER et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 716 (1969)

Jessee E. SWANNER et al., Appellants, v. UNITED STATES of America, Appellee.

No. 25841.

United States Court of Appeals Fifth Circuit.

February 4, 1969.

William A. Oldacre, Ira DeMent, Montgomery, Ala., for appellants.

Ben Hardeman, U. S. Atty., Montgomery, Ala., Vernol R. Jansen, Jr., Mobile, Ala., for appellee.

Before JOHN R. BROWN, Chief Judge, RIVES and McENTEE,^* Circuit Judges.

McENTEE, Circuit Judge:

This is a Federal Tort Claims suit to recover damages allegedly caused by the government's negligence. There is no dispute as to the relevant underlying facts. Only the district court's findings and conclusions with reference to causation are questioned.

During the latter half of 1965 (August to December) Jessee Swanner, a convicted felon, was employed as an informer for the Alcohol Tax Unit of Internal Revenue (ATU) in an undercover investigation of an illicit whiskey operation in Giles County, Tennessee. The acknowledged leader of this whiskey ring was a character named Ed McGlocklin who had a history and reputation in Giles County as a man of violence.

One of plaintiffs' witnesses testified that during a conversation he had with McGlocklin in January 1966 the latter stated "that Jessee Swanner was the one that turned him up" and that if he could find Swanner "he would never appear in court to testify against him". This witness also testified that in response to McGlocklin's inquiry he told him that he heard Swanner was living in Montgomery, Alabama. Swanner learned indirectly of this threat on April 18, 1966, and promptly alerted the appropriate representatives of ATU. The ATU assured him that nothing would happen as long as he stayed in Alabama but cautioned him against going into Tennessee. On the evening of April 22, 1966, about midnight, three days before Swanner was scheduled to testify against the members of the whiskey ring before a federal grand jury in Giles County, Tennessee, a bomb exploded under the house in which Swanner was living in Montgomery, Alabama. The explosion demolished one side of the house, injured Swanner, his wife and two grandchildren, all of whom join as plaintiffs in this action. They allege that the government negligently breached its duty to protect them.

The district court ruled that the government did have a duty to protect Swanner and that it breached this duty, but refused to find the government liable because in its opinion plaintiffs did not sustain their burden of showing that the government's negligence was the proximate cause of their injuries. In so ruling the court emphasized the following points:

1. Swanner is a convicted felon.

2. At the time of the bombing, his principal source of income was a part time job repossessing automobiles.

3. Swanner's landlord was in arrears on the payment of his mortgage and had already been put on notice that foreclosure might be necessary.

4. There was a complete lack of evidence that McGlocklin or his associates either were anywhere near Montgomery at any time or that they had procured the bombing.

While the court properly distinguishes the instant case from Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958) where the victim was a public spirited young man whose murder had no obvious explanation other than retribution for his cooperation with the police, we are impressed by plaintiffs' contention that they have been held to too strict a standard of proof. We do not endorse the suggestion that the court applied the standard of proof beyond a reasonable doubt. Still, a reading of the court's opinion in the light of the whole record leaves us with a firm conviction that the plaintiffs were held to a standard of proof stricter than that of a preponderance of the evidence.¹

To some extent this appears from what the court says explicitly:

"The Court of Appeals of New York suggested in Schuster that it might be possible to create a case of circumstantial evidence so strong as to lead the mind inevitably to the conclusion that injury to a person who supplied information to the police resulted from his having supplied such information. This is not such a case."

Swanner v. United States, 275 F.Supp. 1007, 1012 (M.D.Ala.1967). We are disturbed by such a formula, particularly the word "inevitably", especially since no such formula seems to be suggested in Schuster.²

Moreover, there are other less tangible intimations of the Court's attitude. For example, inordinate emphasis seems to be attached to the fact that "not one shred of evidence" indicates that McGlocklin or his associates were in or near Montgomery. This assertion, however, impliedly misstates the issue. The real question is whether it is more probable than not that plaintiffs were injured as a result of the disclosures concerning McGlocklin. The very fact that the threat had occurred in the not too distant past and that Swanner was due to testify against McGlocklin just a few days after the bombing occurred we think is powerfully persuasive that there was a causal connection irrespective of any proof that the supposed perpetrators were seen in the area.³ Alert avoidance of the classical fallacy of post hoc, ergo propter hoc does not require rejection of common sense inferences.

Had the district court been as sensitive to these considerations as we think it should have been it would perhaps have been more critical in assessing the other "several sources" that could have resulted in the harm to Swanner. While these other sources are certainly possible explanations of the bombing, we think that the court would have scrutinized their likelihood more closely had it not been so occupied with the absence of proof concerning the whereabouts of McGlocklin and his...