United States v. Johnson

• Decision Date: 23 February 1961
• Docket Number: No. 18267.,18267.
• Citation: 288 F.2d 40
• Parties: UNITED STATES of America, Appellant, v. G. V. JOHNSON, and his wife Letha Johnson, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.2d 40 (1961)

UNITED STATES of America, Appellant, v. G. V. JOHNSON, and his wife Letha Johnson, Appellees.

No. 18267.

United States Court of Appeals Fifth Circuit.

February 23, 1961.

Kathryn H. Baldwin, Anthony L. Mondello, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., John R. Green, Asst. U. S. Atty., Houston, Tex., George Cochran Doub, Asst. Atty. Gen., William B. Butler, U. S. Atty., Houston, Tex., for appellant.

Warner F. Brock, Jimmy F. Y. Lee, Brown, Bates, Brock & Morgan, Houston, Tex., for appellees.

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

RIVES, Circuit Judge.

This appeal is from a five thousand dollar judgment against the United States under the Federal Tort Claims Act¹ for personal injuries consisting of nervousness and aggravation of a heart condition from which Mrs. Johnson was suffering. The appellant makes three contentions of error:

1. That the action was barred by the two-year limitation period in the Act;

2. That the rule of res ipsa loquitur was not applicable in determining negligence of the Government in the airplane crashes which occurred; and

3. That the doctrine of volenti non fit injuria is applicable and is a complete defense.

Limitations.

28 U.S.C.A. § 2401(b) provides that, "A tort claim against the United States shall be forever barred unless action is begun thereon within two years after such claim accrues." An action is commenced by the filing of a complaint.²

The second amended complaint upon which trial was had and judgment rendered was filed on March 21, 1958. It described seven crashes of aircraft on routine missions from Foster Air Force Base and alleged that "defendant was negligent in each and every one of the foregoing instances where defendant's planes crashed in, on or about the land leased by plaintiffs." It further alleged that the planes came closer to plaintiffs' home than permitted by the avigation easement. The last alleged crash was on August 17, 1955, more than two years before the second amended complaint was filed.

The original complaint had been filed on March 26, 1956, well within the two-year period. It alleged generally the flight of aircraft over the plaintiffs' house, the crash of planes "within plain view of plaintiffs' house," and the crash on one occasion of the body of a pilot on the ground "very close to plaintiffs' home"; Mrs. Johnson's heart condition and repeated attacks brought on by fear and anxiety because of the flights; visits by employees or agents of the United States and representations by them that plaintiffs "would be moved from the home and compensated within sixty (60) or ninety (90) days"; "renewed promises" of like nature; failure by the Government to make such payment; plaintiffs' inability to move because of lack of funds; and damages sustained in the amount of $50,000 by Mrs. Johnson and $1,000 by Mr. Johnson for medical bills. Paragraph 5 of the petition read as follows:

"Plaintiffs allege that the cause and the proximate cause of their injuries and damages, as hereinabove set forth, is the negligence and wont of ordinary care on the part of Defendant, its agents, servants, and/or employees, in failing to perfect the process of reimbursing or compensating Plaintiffs for their property, so that Plaintiffs might move from the vicinity of Foster Air Force Base." (Emphasis supplied.)

The original complaint contained no allegation of any specific crash or illegal low-level flight; and it contained no allegation of any negligence on the part of the United States in connection with any crash or crashes or any flight or flights.

No significant change was made until the filing of the second amended complaint. The question, then, is whether the second amendment relates back to the filing of the original complaint. Rule 15(c), Federal Rules of Civil Procedure, provides as follows:

"(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Title 28 U.S.C.

Judge Sibley, speaking for this Court, has well said:

"* * * Limitation is suspended by the filing of a suit because the suit warns the defendant to collect and preserve his evidence in reference to it. When a suit is filed in a federal court under the Rules, the defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be, and that the form of the action or the relief prayed or the law relied on will not be confined to their first statement."

Barthel v. Stamm, 5 Cir., 1944, 145 F. 2d 487, 491.

Professor Moore states the general rule as follows:

"* * * * If the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim."

3 Moore's Federal Practice, 2d ed., p. 852.

Though there was a complete change in the legal theory of plaintiffs' complaint, their claim continued to arise out of the conduct, transaction or occurrence attempted to be set forth in the original complaint. We hold, therefore, that the second amendment relates back to the date of the original complaint, and that the action was not barred by the two-year limitation in the Federal Tort Claims Act.

Res Ipsa Loquitur

Res ipsa loquitur, in Texas as in many other jurisdictions, permits an inference of negligence when the evidence establishes that (1) the particular thing causing the injury was under the management of the defendant; and (2) the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.³

At a pretrial conference, the following facts were conceded:

"Of the seven aircraft accidents alleged in the complaint, at least the two on July 22, 1954, and July 27, 1954, occurred on the land leased by the Johnsons, and one was a skid off the northwest-southeast runway onto the Johnson\'s leasehold. This was on March 21, 1955, and occurred because of an aborted take-off attempt. Of the other four, two occurred approximately three miles from the Johnson\'s house on February 25, 1955, and August 17, 1955. The next was on June 8, 1955, at a place to be determined by the evidence. The seventh occurred one mile north of Foster Air Force Base on April 5, 1955. In each instance the aircraft were, and at all times material hereto had been, under the exclusive control of the defendant and the pilots and crews thereof were within the scope and course of their employment. The crews were killed in the crashes of July 27, 1954, February 25, 1955, and August 17, 1955. The accident of July 22, 1954, was a result of a power failure during landing. The crash of July 24, 1954, occurred in landing, and the June 8, 1955, accident occurred as a result of a power failure in take-off."

The best evidence of the cause of each of these crashes rested with the Government and was not available to the plaintiffs. The district court found:

"The airforce (sic) investigated immediately after each of the crashes and plaintiffs were unable to secure these reports. Defendant\'s counsel says that the reports were not produced because plaintiffs originally sued on the theory of nuisance and the records cannot now be secured; but the original complaint, filed March 26, 1956, less than 10 months after the last crash, alleged a number of crashes in the vicinity of plaintiffs\' dwelling, and claimed jurisdiction and sought recovery under the Torts Claims Act. Defendant has shown no good reason for not producing the records which might have overcome the inference of negligence."

As has been noted, the Government conceded that the crash of July 22, 1954 was a result of power failure in landing, that of July 24, 1954 occurred in landing, that of March 24, 1955 occurred because of an aborted take-off attempt, and that of June 8, 1955 occurred as a result of a power failure in take-off. The Fire Chief at Foster Air Field testified his records showed that in the crash of February 25, 1955, death of the pilot was caused from explosion on impact, and that the crash of April 5, 1955 was caused by a flameout on landing. Unable to secure more specific information from the Government records, the plaintiffs introduced Edward Taylor Moore, a former jet pilot, based at Foster Air Force Base from September 3, 1954 until his discharge on May 12, 1957, who testified in part as follows:

"Q. Now Mr. Moore, I want you to tell me what is the cause of a flameout? A. Fuel starvation.

"Q. And what causes fuel starvation? A. Most of the time, it is an error on the part of the pilot.

"Q. Now would you explain for us, sir, how a flameout is due to an error on the part of the pilot? A. Generally, I would say it is improper planning. For instance, he might plan to go 50 miles farther than he has fuel to carry him, or becoming deorientated in the air, getting lost. Or often they are caused in weather conditions, when you just keep trying to land and don\'t make it, but that also, the pilot shouldn\'t have been there in the first place.

"Q. Did you have regular safety meetings when you were assigned to Foster? A. Yes, sir.

"Q. And at those safety meetings, they were held by squadrons, were they not? A. They have them regularly by squadrons and fairly regularly by group, and sometimes all the pilots on the base. But every day, you would have some type of —

"Q. Did they have those from the time you went there in 1953 until the time you left in 1957? A. Yes, sir.

"Q. Did you receive what the government termed as confidential or classified reports, not only about accidents that occurred at Foster, but at other jet bases? A. Yes, sir.

"Q. Now based

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