United States v. Lawter, No. 15050.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, , and HOLMES and RUSSELL, Circuit
Citation219 F.2d 559
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
Docket NumberNo. 15050.

219 F.2d 559 (1955)

UNITED 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.

No. 15050.

United States Court of Appeals, Fifth Circuit.

March 2, 1955.


219 F.2d 560

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.

219 F.2d 561

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

219 F.2d 562
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,...

To continue reading

Request your trial
37 practice notes
  • Abigail Alliance for Better Access v. Von Eschenbach, No. 04-5350.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Agosto 2007
    ...that a deputy sheriff committed a constitutional tort by interfering with efforts to rescue a drowning boy); United States v. Lawter, 219 F.2d 559, 562 (5th Cir.1955) (holding that the government is liable when it prevents others from attempting a rescue and takes no action itself); Sneider......
  • Pinder v. Commissioners of Cambridge, Civ. No. N-92-675.
    • United States
    • U.S. District Court — District of Maryland
    • 10 Mayo 1993
    ...to believe that the danger is removed, or by depriving a potential victim of help from other sources. See, e.g., United States v. Lawter, 219 F.2d 559 (5th Cir.1955) (liability imposed where rescue effort negligently done); Remeikis v. Boss & Phelps, Inc., 419 A.2d 986 (D.C.App. 1980) (liab......
  • United Air Lines, Inc. v. Wiener, No. 18510-18533
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 16 Diciembre 1964
    ...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. 1951). ......
  • Indian Towing Company v. United States, No. 8
    • United States
    • United States Supreme Court
    • 21 Noviembre 1955
    ...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 operation). 2. Although the argument is more ......
  • Request a trial to view additional results
37 cases
  • Abigail Alliance for Better Access v. Von Eschenbach, No. 04-5350.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Agosto 2007
    ...that a deputy sheriff committed a constitutional tort by interfering with efforts to rescue a drowning boy); United States v. Lawter, 219 F.2d 559, 562 (5th Cir.1955) (holding that the government is liable when it prevents others from attempting a rescue and takes no action itself); Sneider......
  • Pinder v. Commissioners of Cambridge, Civ. No. N-92-675.
    • United States
    • U.S. District Court — District of Maryland
    • 10 Mayo 1993
    ...to believe that the danger is removed, or by depriving a potential victim of help from other sources. See, e.g., United States v. Lawter, 219 F.2d 559 (5th Cir.1955) (liability imposed where rescue effort negligently done); Remeikis v. Boss & Phelps, Inc., 419 A.2d 986 (D.C.App. 1980) (......
  • United Air Lines, Inc. v. Wiener, No. 18510-18533
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 16 Diciembre 1964
    ...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. 1951). ......
  • Indian Towing Company v. United States, No. 8
    • United States
    • United States Supreme Court
    • 21 Noviembre 1955
    ...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 operation). 2. Although the argument is more ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT