United States v. Durrance

• Decision Date: 18 January 1939
• Docket Number: No. 8821.,8821.
• Citation: 101 F.2d 109
• Parties: UNITED STATES v. DURRANCE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

101 F.2d 109 (1939)

UNITED STATES v. DURRANCE et al.

No. 8821.

Circuit Court of Appeals, Fifth Circuit.

January 18, 1939.

M. W. Hibschman, Atty., Department of Justice, of Washington, D. C., Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Damon G. Yerkes, Asst. U. S. Atty., of Jacksonville, Fla., for appellant.

Fred S. Rizk and Charles J. Regero, both of Jacksonville, Fla., for appellees.

Before FOSTER, HOLMES, and McCORD, Circuit Judges.

HOLMES, Circuit Judge.

This was a suit to recover damages in the sum of $5,000 for the wrongful death of appellee's father and mother. It was instituted in the court below under a private act, entitled An Act for the Relief of Evanell Durrance, approved June 26, 1936 (49 Stat. 2366). From a judgment against it for $4,383.68, entered upon the verdict of a jury, the United States prosecuted this appeal.

The enactment, upon the construction of which our decision depends, is as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred upon the United States District Court for the Southern District of Florida to hear, determine, and render judgment, as if the United States were suable in tort, upon the claim of Evanell Durrance, of Jacksonville, Florida, for damages resulting from the death of her parents, Samuel E. Townsend and Elizabeth Townsend, who were killed in a collision between an automobile in which they were passengers and a truck owned by the Department of Agriculture, the same having occurred a short distance east of Greenville, Madison County, Florida, on November 9, 1930: Provided, That the judgment rendered against the United States, if any, shall not exceed the sum of $5,000."

On November 9, 1930, the father and mother of appellee were killed in the state of Florida when their coupe collided with a truck which had been parked by an employee of the Department of Agriculture one foot off of the pavement of a public highway of said state. Appellee was their only child. She was an adult, married, did not live with her parents, and was not dependent upon them for support at the time they were killed. Therefore, she was not entitled to recover damages for their wrongful death, either at common law or under the Florida statutes. Secs. 7047 and 7048 of the Compiled General Laws of Florida, 1927. See, also, Duval v. Hunt, 34 Fla. 85, 15 So. 876; Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 So. 246; Benoit v. Miami Beach Electric Co., 85 Fla. 396, 96 So. 158; Harbeson Lbr. Co. v. Anderson, 102 Fla. 731, 136 So. 557; Self v. Sinclair Refining Co., 5 Cir., 69 F.2d 948.

Conceding that, under the facts in evidence, there could be no recovery if the suit were one between private parties, the appellee insists that the private act, above quoted, created in her a right of action for the death of her parents. We do not think this was the intention of Congress. It used no words to indicate it. The language of the act merely conferred jurisdiction upon the court below to hear, determine, and render judgment as if the United States were suable in tort. The effect of the act was to waive appellant's sovereign immunity from suit for the alleged tort. It did not enlarge the liability of the United States over that of a private party defendant in similar circumstances. It was the intention of Congress to provide a judicial forum to which appellee might resort for the determination of her claim as if the suit were between private parties.

An action against the United States may be maintained only by its permission, and a statute dealing with the relaxation of sovereign immunity from suit must be strictly construed. Governmental liability should not be extended beyond the plain language of a statute authorizing it. Schillinger v. United States, 155 U.S. 163, 15 S.Ct. 85, 39 L.Ed. 108; Price v. United States, 174 U.S. 373, 19 S.Ct. 765, 43 L.Ed. 1011; United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 75 L.Ed. 598; Munro v. United States, 303 U.S. 36, 41, 58 S.Ct. 421, 82 L.Ed. 633.

If the Florida statutes are not applicable to determine liability in this case, we are at a loss to know where to look to find the controlling principles. At common law, damages were not recoverable by anyone for the death of a human being. See Higgins v. Butcher, Noy 18, Yelv. 89, which arose in the King's Bench in 1606. The adoption of Lord Campbell's Act in 184...