United States v. Inmon, 14364.

• Decision Date: 03 September 1953
• Docket Number: No. 14364.,14364.
• Citation: 205 F.2d 681
• Parties: UNITED STATES v. INMON.
• Court: U.S. Court of Appeals — Fifth Circuit

205 F.2d 681 (1953)

UNITED STATES v. INMON.

No. 14364.

United States Court of Appeals Fifth Circuit.

June 30, 1953.

On Rehearing August 7, 1953.

On Motion to Reinstate Judgment or to Clarify Order September 3, 1953.

Lester S. Jayson, Attorney, Dept. of Justice, Washington, D. C., Frank B. Potter, U. S. Atty., Ft. Worth, Tex., Warren E. Burger, Asst. Atty. Gen., A. W. Christian, Asst. U. S. Atty., Dallas, Tex., Samuel D. Slade, Attorneys, Department of Justice, Washington, D. C., for appellant.

A. E. Zellers, Weatherford, Tex., for appellee.

Before HOLMES, BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

Suit was brought against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671-2680 by Walter Daniel Inmon and his minor son, Walter Wayne Inmon, on account of injuries sustained by the son from the explosion of an army blasting cap. The blasting cap had been found by Wayne Inmon in February, 1949, while hunting on private property, which property had been leased for Army training purposes as a part of Camp Wolters, Texas, during the last war.

During the war the Army had used many kinds of ammunition and explosives at Camp Wolters for the training of troops. Upon the termination of hostilities, the camp was dismantled and the Army sent men in to gather up and remove from the premises any remaining explosives and ammunition. On the outside edge of the tract in question, which was enclosed by a barbed wire fence, signs were posted warning the public of the presence and danger of explosives and warning that metal objects found in the area should not be touched or moved.¹

After the tract of land was returned by the Army to private possession, some empty shells, duds and live ammunition were discovered thereon. Additional men were sent in by the Army to clear the area. From the time the Army released the property until the accident occurred, the barbed wire fence and the warnings signs remained on the premises. By late February, 1949, when the injury occurred, the property had been transferred four times since being leased and occupied for Army training purposes.²

There is evidence that both before and after the last war residents in the Camp Wolters area were in the habit of using the property in question for hunting and fishing purposes. In February, 1949, Wayne Inmon, with the permission of a brother-in-law of the sub-tenant, went hunting on the property with his twin brother and two other boys. He was fourteen years and four months of age at the time. The boys walked several miles to a place deep within the area where near a chimney they found three boxes almost buried in the ground. The boxes were covered by a piece of tin on top of which were some rocks. Inside one of the boxes they found two cartons which contained over 300 blasting caps. Wayne Inmon admitted in his testimony that printed on the cartons was the following warning: "Blasting Caps — Do Not Carry Loose In Your Pocket". The boys divided the caps between them, shot at several of them without causing any explosion and Wayne Inmon carried his caps home, leaving them in the living room. He had the caps in his possession for two or three weeks and often carried some of them around in his pocket. After seeing a boy cut one of the caps in half with a knife without causing any explosion, he was not so afraid of them as before, although he knew they were more dangerous than cartridges.³ Finally, fearing that if he carried them in his pockets they might be jarred during play so as to explode, he carried them to a creek and threw most of them away.

On February 26, 1949, almost a month after finding the caps, Wayne Inmon was at home recuperating from an attack of appendicitis. His grandmother, who lived with his family, found one of the caps while sweeping the living room floor. Believing it was dangerous, she tried to keep it from him and warned him that he would get hurt, but he answered that it would not hurt him and began to pry at a seal on the cap with a piece of heavy wire to remove the powder, the method he had used in the past to take apart .22 caliber cartridges. When he had pried at it five or six times, the cap exploded, as a result of which he was blinded in one eye, the other eye was injured, and he lost the index finger of his left hand.

In an oral opinion, the District Court held "that the Government was negligent in not removing the caps, or these explosives from the premises" when it transferred the property back to private ownership after the war.⁴ The Government's defense of contributory negligence was denied⁵ and damages in the amount of $7,000.00 were awarded to Wayne Inmon and $1,000.00 to his father.

The Government contends that, having transferred the property back to private ownership, it owed no duty to respond in damages under the Tort Claims Act for accidental injury resulting from the dangerous or defective condition of the property; that, in any event, it fulfilled whatever duties a landowner would have owed to Wayne Inmon, as a trespasser or at most a bare licensee;⁶ that there is no evidence to support the finding that it was negligent or that its conduct was the proximate cause of the injuries, but that Wayne Inmon was clearly guilty of contributory negligence barring any recovery; and finally, that the special liability of a landowner for the dangerous condition of his premises is not a respondent superior type of liability which would afford a basis for recovery under the Federal Tort Claims Act.

Appellee contends that it was the duty of the Government through its servants and employees, to maintain proper custody of the blasting caps and especially to remove them from the premises when the property was transferred back to private ownership; that such duty continued even though the property changed hands four times after the Government relinquished possession and control, and was further owed to Wayne Inmon, a licensee of a subsequent transferee of the property; and that the Government's initial failure to remove the caps upon release of the property constituted actionable negligence under the Tort Claims Act.

Generally, the liability of a grantor of real property for the dangerous or defective condition of the premises ceases upon the transfer of possession and control, regardless of whether the person injured is the transferee, or some third person to whom a duty of care is owed. See Restatement, Torts, Secs. 352, 354; Virginian R. Co. v. Mullens, 271 U.S. 220, 46 S.Ct. 526, 70 L.Ed. 915. The rule is subject to the qualification that, if the grantor knows of a latent defect or danger on the premises, and misleads the transferee into believing the premises are safe, or fails to disclose the defect when he has reason to believe that it will not be discovered by him, he may nevertheless be liable for any injury resulting therefrom. Restatement, Torts, Sec. 353; see, also, Sec. 354, Com. b. However, the exception to the general rule of non-liability is not applicable here because it was not sufficiently shown that the Government had actual knowledge of the presence of the particular blasting caps at the time it released the property, and certainly the Government never represented to the subsequent transferee of the property or to Wayne Inmon that the premises were...