United States v. Lawter, 15050.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation219 F.2d 559
Docket NumberNo. 15050.,15050.
PartiesUNITED STATES of America, Appellant and Cross-Appellee, v. Oren LAWTER, Appellee and Cross-Appellant. Oren LAWTER, Appellee and Cross-Appellant, v. UNITED STATES of America, Appellant and Cross-Appellee.
Decision Date02 March 1955

Alan S. Rosenthal, Atty., Dept. of Justice, Paul A. Sweeney, Washington, D. C., E. David Rosen, Asst. U. S. Atty., Miami, Fla., Warren E. Burger, Asst. Atty. Gen., James L. Guilmartin, U. S. Atty., Miami, Fla., Leavenworth Colby, Atty., Dept. of Justice, Washington, D. C., Lieutenant William E. Fuller, U. S. Coast Guard, Washington, D. C., of counsel, for appellant.

Arthur Roth and Monte K. Rassner, Miami, Fla., Jacob Rassner, New York City, of counsel, for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

HUTCHESON, Chief Judge.

Claiming under the Public Vessels Act, Title 46 U.S.C.A. § 781 et seq., and the Tort Claims Act, Title 28 U.S.C. § 1346 (b), the suit was for damages for the death of plaintiff's wife. The claim was that the death was caused by the negligence of Coast Guard personnel in the conduct of a helicopter air-sea rescue.

The defenses were: (1) that the United States was not liable and had not consented to be sued for the negligence of the Coast Guard in the conduct of such rescues; (2) that the death was not caused or contributed to by any fault, negligence, or want of care on the part of the United States, the helicopter, or those in charge or control of it; and (3) that it was caused by the negligence and fault of the deceased and of the plaintiff, her husband, in not securing her firmly by the straps on the helicopter cable before permitting her to be drawn up.

The evidence concluded, there were findings of fact and conclusions of law1 in favor of, and a judgment for, plaintiff.

Defendant, appealing from the judgment, is here insisting that the complaint does not state a cause of action and the judgment must, therefore, be reversed and remanded with instructions to dismiss, or that at least the findings that the Coast Guard was, and plaintiff was not, negligent should be set aside as clearly erroneous.

Appellee, attacking the quantum of the finding and award of damages as inadequate and clearly erroneous, seeks an increase of the award here.

A careful examination and consideration of the findings of fact, in the light of the record as a whole, and of the conclusions of law, in the light of settled legal principle, convinces us that they are well supported and that, as against appellant's attack upon them, they should and must be sustained.

As appellee correctly points out, the case made is not one of omission or failure on the part of the Coast Guard to act, but of a definite and affirmative act causing death, an act deliberately undertaken and negligently performed by it.

Whatever then might be said of the liability of the United States, if the case had to do with mere negligent omission or inaction of the Coast Guard, as was the case in Indian Towing Co. v. U. S., 5 Cir., 211 F.2d 886, is not controlling here. For the uncontradicted evidence shows that the Coast Guard, pursuant to long established policy,2 affirmatively took over the rescue mission, excluding others therefrom, and thus not only placed the deceased in a worse position than when it took charge, but negligently brought about her death, and it is hornbook law that under such circumstances the law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another not to injure him by the negligent performance of that which he has undertaken. 38 Am.Jur., "Negligence", Sec. 17, p. 659.

As to appellee's attack upon the quantum of the finding and award of damages as clearly erroneous, we have held in Sanders v. Leech, 5 Cir., 158 F.2d 486, at page 487,3 this court has the power in a case tried to a court without a jury to review findings as to damages. However for the reasons stated in the Sanders case, we feel here, as we felt there, that we cannot say that the findings are clearly erroneous.

The judgment is affirmed.

Judge RUSSELL sat during the argument of this case but, due to illness, he took no part in its decision.

1 Findings of Fact:

(1) The Court has jurisdiction of the parties and subject matter.

(2) On or about April 18, 1953, the deceased, Loretta Jean Lawter, her husband and libelant herein, Oren Lawter, his brother Andrew Lawter and his wife, Susan Lawter, were in a 16 foot skiff in Biscayne Bay, when a wave drowned out the outboard motor attached to the skiff and further waves resulted in the swamping of the boat. As a result thereof, the four passengers were cast into water approximately 500 yards from the nearest shore. The water at that particular point was approximately four feet deep.

(3) At the time of the accident small craft warnings were posted and the wind was blowing at a sufficient rate to cause whitecaps and rough water.

(4) At this time a U.S. Coast Guard helicopter, Model HO4S-2G, was making a routine patrol flight over the Biscayne Bay area. The pilot of the helicopter was Eugene Farley, Lt., J.G., U.S. Coast Guard. Sitting in the co-pilot seat, as a passenger, was Petty Officer First Class Nathaniel Passmore. The crewman in the cabin of the ship was Lloyd S. Antle, Jr.

(5) The flight by the helicopter was made for the purpose of determining if any vessels or people in the area were in the need of aid or...

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  • Indian Towing Company v. United States
    • United States
    • U.S. Supreme Court
    • November 21, 1955
    ...Compare the holding of the Court of Appeals for the Fifth Circuit in the instant case, 211 F.2d 886, with its holding in United States v. Lawter, 5 Cir., 219 F.2d 559 (United States liable under Tort Claims Act for negligence of Coast Guard during helicopter rescue 2. Although the argument ......
  • Koohi v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 8, 1992
    ...ship may be brought against the United States if it satisfies the reciprocity requirements of the Public Vessels Act); United States v. Lawter, 219 F.2d 559 (5th Cir.1955) (allowing suit for negligence during operation of an at-sea rescue); cf. United Air Lines, Inc. v. Wiener, 335 F.2d 379......
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    ...374, 1 L.Ed.2d 354 (1957). 6 Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). 7 United States v. Lawter, 219 F.2d 559 (5th Cir. 1955); United States v. DeVane, 306 F.2d 182 (5th Cir. 1962). 8 Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir. 19......
  • Grigsby v. Coastal Marine Service of Texas, Inc.
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    ...Screw Noah's Ark v. Bentley & Felton Corp., 5 Cir., 1961, 292 F.2d 437, 1961 A.M.C. 1641, 5 Cir., 1963, 322 F.2d 3; United States v. Lawter, 5 Cir., 1955, 219 F.2d 559; Norris, Salvage §§ 120, 278 (1958). See also Carver v. Liberty Mutual Ins. Co., 5 Cir., 1960, 277 F.2d 105, 108 n. 8 Missi......
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