Underwood v. United States

• Decision Date: 26 January 1966
• Docket Number: No. 21924.,21924.
• Citation: 356 F.2d 92
• Parties: Frank J. UNDERWOOD, as Administrator of the Estate of Shirley Underwood Dunn, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

356 F.2d 92 (1966)

Frank J. UNDERWOOD, as Administrator of the Estate of Shirley Underwood Dunn, Deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 21924.

United States Court of Appeals Fifth Circuit.

January 26, 1966.

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Ira De Ment, Montgomery, Ala., for appellant.

Rodney R. Steele, Asst. U. S. Atty., Montgomery, Ala., Ben Hardeman, U. S. Atty., for appellee.

Before TUTTLE, Chief Judge, and RIVES and GEWIN, Circuit Judges.

RIVES, Circuit Judge.

This action was brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671, et seq., in conjunction with the Alabama Homicide Act, Code of Alabama, 1940, Title 7, sec. 123. Edward F. Dunn, an Airman First Class assigned to the Air Police Squadron at Maxwell Field, Montgomery, Alabama, shot and killed his former wife, Shirley Underwood Dunn, on September 4, 1962, at her place of employment in the City of Montgomery. Her father and personal representative in this action claimed that the United States was negligent in the following respects:

"(1) By allowing Edward F. Dunn, an airman in the United States Air Force stationed at Maxwell Air Force Base, Alabama, who was in an emotionally and mentally disturbed state of being, which condition was known to the agents of the United States at Maxwell Air Force Base, to obtain a .45 caliber automatic pistol that was used by Airman Dunn to kill Shirley Underwood Dunn; and

"(2) By allowing Edward F. Dunn, known by the agents of the United States to be in an emotionally and mentally disturbed state, to return to duty, the performance of which gave him access to a dangerous instrumentality, to-wit, a .45 caliber automatic pistol."

The United States denied that it owed any duty to Mrs. Dunn or that it was guilty of any breach of a duty that may have existed. It further denied that there was any causal connection between a duty and its breach and the death of Mrs. Dunn at the hands of her former husband. In addition the United States said, affirmatively, that the return of Airman Dunn to duty by the medical staff at Maxwell Field, the performance of which duty gave him access to a .45 caliber automatic pistol, was a discretionary function on the part of said medical officers of the United States Air Force and, for that reason, falls within the exception of the Federal Tort Claims Act as set out in Title 28, § 2680(a), U.S.C.A.

After trial, the district court entered its opinion and rendered its decision in favor of the defendant United States. The court ruled that the decision of the medical officers to return Dunn to duty was not a discretionary function within the meaning of Title 28, § 2680(a), U.S. C.A., but that there was no negligence on the part of the medical officers in releasing Dunn to active duty, and no causal connection between his release and the subsequent killing. The court further ruled that "although Airman Dunn did not follow the standard Air Force procedure for drawing his weapon, no liability can be predicated on the theory that he obtained a weapon belonging to the United States (which he later used to kill Shirley Underwood Dunn) for the reason that it was not reasonably foreseeable that he would use this weapon, or any weapon, as a means of killing Shirley Underwood Dunn."

There was no conflict in the evidence. Indeed, upon the trial, the defendant offered no evidence other than its cross-examination of the plaintiff's witnesses. All of the witnesses and the exhibits were introduced by the plaintiff. Since the decision turns on the facts, it is necessary to review the evidence at some length.

The Dunns were married on October 1, 1955 and separated on July 7, 1962. At that time they had three children aged 6, 4 and 2. Mrs. Dunn secured a decree of divorce on July 31, 1962.

Their marital difficulties and the future of the children of the marriage caused Airman Dunn to become nervous, depressed and emotionally upset. He sought advice from a friend who had come from the same part of Alabama that Dunn came from, Sergeant Harold E. Thomas, the noncommissioned Officer in Charge of Security and Law Enforcement in the Air University at Maxwell Field. Sergeant Thomas, in turn, carried him to Lieutenant Colonel Bob W. Endicott, who had been Director of Security and Law Enforcement since 1959, and who recommended that Dunn obtain a reputable attorney.

On the night of July 24, 1962, Mrs. Dunn swore out a warrant before the Sergeant of Police of the City of Montgomery charging Airman Dunn with having committed an assault and battery upon her. Later her attorney had the case "nol-prossed." In the interim her attorney had had two conversations with a First Lieutenant who was Deputy Staff Judge Advocate at Maxwell Field. He told the Lieutenant that Dunn was harassing his wife, had threatened her, and that according to Mrs. Dunn he had attacked her with a crow bar. The attorney asked if anything could be done, such as confining or restricting Airman Dunn or ordering him "to stop it." The Lieutenant replied that the only thing the Air Force could do was to counsel Dunn, and that that would be done. In a later telephonic conversation the Lieutenant told the attorney that he had telephoned Dunn's Commanding Officer, "and that Dunn's Commanding Officer had counseled him in no uncertain terms about leaving Shirley Dunn alone."

On July 26, the day after his arrest, Dunn again went to see Sergeant Thomas, who, in turn, carried him to Colonel Endicott. The Colonel asked Dunn if he had committed this assault and Dunn replied, "that he had not touched the individual at all, that he only went home after a couple of drinks and laid down."

When Colonel Endicott arrived in his office at seven o'clock on the morning of August 8, 1962, Sergeant Thomas had again brought Airman Dunn in to see him. Sergeant Thomas testified that in his opinion on that occasion Dunn was irrational, appeared very nervous, upset, depressed, and was crying. Colonel Endicott testifed that the following would be a fair statement of Dunn's condition at that time:

"He was under great emotional strain, that he was terrifically upset, in fact he was practically on the edge of a nervous breakdown, he was unable to control himself, he appeared as if he had not had any sleep for two or three nights, and he was crying part of the time, and he was worrying about his children * * *."

Colonel Endicott felt that Dunn's condition required that he be hospitalized, and instructed Sergeant Thomas "to take him over to the hospital so he could be admitted." Sergeant Thomas took him to the hospital emergency admittance and was directed to the psychiatric clinic, where he turned Dunn over to the noncommissioned Officer in Charge of the clinic, Sergeant Gerald Grover.

Sergeant Grover testified that Dunn was in a state of acute anxiety, somewhat depressed, and off and on he would break down and cry. The admitting physician, Dr. Friedman, told Sergeant Grover that it might be of value in making an evaluation of Dunn's condition to talk to Mrs. Dunn and asked him to get in touch with her. Sergeant Grover followed those instructions and asked Mrs. Dunn to come to Maxwell Field to talk with him. He was not certain of the date, but thought it was "probably a day or so after admission" that Mrs. Dunn came out to Maxwell Field and talked with him. She told Sergeant Grover that Dunn had previously committed assaults upon her, that she had been hit, that he had tried to attack her with a crow bar, and that he had threatened her. Sergeant Grover testified that "the primary idea she conveyed to me at that time was that she was afraid and fearful for her welfare, and the second point that she brought out was that * * * he had been annoying her by following her, driving around in the car behind her, this type of behavior. * * * She appeared to be realistically frightened." Mrs. Dunn's conversation, together with what he had seen of Dunn, made Sergeant Grover feel that Dunn "had the potential of possibly inflicting harm on someone, himself or her." Sergeant Grover communicated this feeling to Dr. Friedman, and told Dr. Friedman in essence what Mrs. Dunn had told him. Dr. Friedman told him not to make a written note of this, "that he would convey this information to the physician who would be picking up the case, since Dr. Friedman was leaving the area shortly."

On August 10, 1962, two days after Dunn was hospitalized, another psychiatrist, Dr. Edwin Arthur Larson first met him. Dr. Friedman was in the process of being transferred away from Maxwell Air Force Base and turned the patient Dunn over to Dr. Larson for care, together with his notes and the hospital records on his case. However, Dr. Larson was not informed of Mrs. Dunn's conversation with Sergeant Grover or of any threats on her life until after the deed had been committed. Dr. Larson testified that psychiatrists attempt to ascertain what relationships with others may have been significant, "what has taken place in the lives of these persons and in their contacts with the patient which may have had effect upon his emotional and psychological state." Dr. Larson declined to say in retrospect what his action would have been, or what the result of taking into consideration any alleged threats would have been, other than he would certainly have questioned Dunn.

Dr. Larson thought that Dunn was mentally ill at the time of his admission to the hospital, and that was also Dr. Friedman's opinion. There was, of course, some difficulty in defining "mental illness." The medication administered to Dunn was a tranquillizer, Thorazine, 250 milligrams on the day of admission. The next day his medication was reduced to twenty-five milligrams four times a day, and was discontinued on August 15 when Dunn was discharged from the hospital with the following diagnosis: "Maladjustment, situational, acute, moderate, improved, manifested by anxiety, depression. Stress: 3274 Moderate, separation...