Young v. United States, Civ. A. No. 1161.

• Citation: 372 F. Supp. 736
• Decision Date: 11 March 1974
• Docket Number: Civ. A. No. 1161.
• Parties: Patricia Ann YOUNG et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Georgia

372 F. Supp. 736

Patricia Ann YOUNG et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 1161.

United States District Court, S. D. Georgia, Brunswick Division.

March 11, 1974.

Joseph Jones, Jr., Hill, Jones & Farrington, Savannah, Ga., for plaintiffs.

Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., for defendant.

ORDER ON GOVERNMENT'S MOTION TO DISMISS

LAWRENCE, Chief Judge.

In the above captioned actions for wrongful death under the Federal Tort Claims Act the Government has moved to dismiss on the ground of non-compliance with certain formalities required by the Regulations adopted pursuant to such statute.

Under the Tort Claims Act, the United States is liable in tort in the same manner and to the same extent as a private individual under the circumstances. 28 U.S.C. § 2674. No such action shall be instituted against the United States unless the claimant shall have first presented to the appropriate Federal agency a claim which shall have been denied by the agency in writing. 28 U. S.C. § 2675(a).

Under the Regulations governing administrative claims pursuant to the Federal Tort Claims Act, the claimant or his duly authorized agent or legal representative is required to file an executed Standard Form 95 or other written notification of an incident accompanied by a claim for money damages in a sum certain. 28 C.F.R. § 14.2(a). The Regulations further provide (28 C.F.R. § 14.3) that

"(b) A claim for personal injury may be presented by the injured person, his duly authorized agent, or legal representative.

(c) A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert its claim in accordance with applicable State law." 28 C.F.R. § 14.3.

A claim by an agent or legal representative shall be presented in the name of the claimant; "be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of claimant as agent, executor, administrator, parent, guardian, or other representative". 28 C.F.R. § 14.3(3).

The death claims involved here grew out of an explosion at the Thiokol Chemical Company plant in Camden County, Georgia, in 1971 in which 28 employees were killed and many others injured.

The Government's motion to dismiss is addressed to five of the death claims sued for in the action. In each of them it is contended that the Court lacks jurisdiction to entertain suit against the United States because of failure to comply with the statute and Regulations.

In each instance the Department of the Army, acting through the General Claims Division, disapproved on January 24, 1973, the death claims on the ground of the lack of any showing of negligence on the part of the United States or its employees which is "a condition precedent to the favorable consideration of the claim".

The relevant facts with regard to each of the five death claims are as follows:

I

Death of Pearlie Mae Hutcninson

The action under the Federal Tort Claims Act for the death of Pearlie Mae Hutchinson is brought by Patricia Ann Young, Alvin Hutchinson and Kenneth Tyrone Hutchinson, minors, by next friend, Dolly Young.¹

Under date of October 12, 1972, a claim was filed by Dolly Young in connection with the death of her daughter, Pearlie Mae Hutchinson, who was killed in the explosion in 1971. She named herself as claimant and signed the form: "Dollie Young as Guardian". The form does not mention or identify the three minor children of the decedent who have brought the suit.

According to the record before me, Pearlie Mae Hutchinson was a widow. She left as her survivors: Patricia Ann Young, aged 10; Alvin Hutchinson, aged 9, and Tyrone Kenneth Hutchinson, aged 3. Since the death of Pearlie Mae, it appears that her mother, Dollie Young, has had custody of her three children. In respect to Social Security benefits the grandmother acted as their "legal guardian".

The Wrongful Death Statute of Georgia provides that in the case of the homicide of a wife or mother, the right to sue vests in the husband and/or child or children. Ga.Code Ann. § 105-1306.

II

Death of Celia Alberta

Suit has been brought for the value of the life of Celia Alberta by her seven children and her husband who is Jimmy Lee Alberta. The children are Jerome Lucas, Cicero Lucas, Janice Alberta, Daisy Alberta, Mattie Alberta, Jimmie Lee Alberta Jr., and Alphonso Alberta. They are minors and sue by their next friend, Jimmy Lee Alberta, who is the widower of the deceased.²

The record reflects that under date of October 12, 1972, Standard Form 95 was filed in connection with the death of Celia Alberta. The demand for damage was in the amount of $25,000,000. The name of the claimant was given as "Jerome Lucas, et al.". The description of the accident recited: "Celia Alberta, mother of claimant, Jerome Lucas, employed by Thiokol Chemical Company, was killed in explosion". The children of decedent are not mentioned or identified other than "Jerome Lucas, et al.". On November 10, 1972, the husband of Celia Alberta filed a Form 95 claim as her husband, signing same "Jimmy Lee Alberta".

III

Death of Gracie Mae Life, Mary Alice Taylor and Ethel Mae Banks

Since these three claims involve an identical problem, I treat them together.

(a) Gracie Mae Life: Under date of November 10, 1972, Promes L. Life individually signed and filed a claim for the death of his wife, Gracie Mae Life, in the Thiokol explosion. No reference appears in the claim to their two minor children, Promes Lee Life, III, aged 7, and Sobrana Ann Life, aged 5.

The suit as originally filed was brought solely by the husband, Promes L. Life. It was amended to include as plaintiffs their two minor children.

(b) Mary Alice Taylor: Under date of November 10, 1972, Mack Taylor, Jr., aged 25, filed a claim on Form 95 for the death of his wife, Mary Alice Taylor. The claim was signed by Mack Taylor, Jr. individually. There was no identification of or reference in the administrative claim to the two minor children of the deceased, Maxine Marie Taylor, aged 5, and Ronette Michel Taylor, aged 2. The action for the death of the wife-mother is jointly brought by Mack Taylor and by Maxine Marie Taylor and Ronette Taylor, minors by next friend, Mack Taylor. The suit was originally filed in the name of Mack Taylor suing for the death of his wife and was subsequently amended by adding the two children as plaintiffs.

(c) Ethel Mae Banks: The suit for the death of Ethel Mae Banks was brought by Noah Banks, husband, and by Jerry Banks and N. R. Banks, minors by next friend, Noah Banks. It was originally brought solely by Noah Banks as an individual for the death of his wife. The action was amended to add as plaintiffs the two children of the decedent. The Form 95 claim was signed individually by Noah A. Banks as husband of the decedent. There was no reference therein to the two children, Jerry and Noah Rufus Banks, Jr.

The Government argues in support of the motion to dismiss that it is incumbent upon the plaintiff to show compliance with the jurisdictional prerequisite of filing an administrative claim and that the statutory requirements cannot be waived. See Bialowas v. United States, 443 F.2d 1047 (3rd Cir.); Best Bearings Company v. United States, 463 F.2d 1177 (7th Cir.); Cambridge Forest Apartments, Inc. v. United States, 307 F.Supp. 1191 (N.D., Ga.); Hlavac v. United States, 356 F.Supp. 1274 (N.D., Ill.); Robinson v. United States Navy, 342 F.Supp. 381 (E.D., Pa.); Gunstream v. United States, D.C., 307 F. Supp. 366; Jordan v. United States, 333 F.Supp. 987 (E.D., Pa.); Staley v. United States, 306 F.Supp. 521 (M.D., Pa.); Driggers v. United States, 309 F.Supp. 1377 (D.S.C.); Turtzo v. United States, 347 F.Supp. 336 (E.D., Pa.). See also the Annotation on actions and procedure under the Federal Tort Claims Act in 13 A.L.R.Fed. 772-776.

The defendant contends that since none of the minors who are the object of the Government's motion to dismiss presented valid administrative claims, they are not proper parties to these actions and should be dismissed as plaintiffs.

I take it that the United States is presumed to know the law of Georgia under which the right of action for the homicide of a wife and mother vests in the husband and/or children of the deceased.

In the case of the administrative claim filed for the death of Pearlie Mae Hutchinson, neither the existence nor identity of her minor children is shown. Certainly, however, the claim put the Department of the Army on notice that it was filed in behalf of persons who were either minors or insane or incompetent since Dollie Young signed her name "as guardian". Form 95 identified her as the mother of the decedent. It is inferable that the claim was filed on behalf of minor children of Pearlie Mae Hutchinson. The Regulations permit a guardian to present a claim on behalf of the claimant. 28 C.F.R. § 14.3(3). They require accompanying evidence of authority as agent, executor, "guardian" or other representative. No accompanying evidence was presented as to the guardian status and the Government did not demand same. During the course of the oral argument, this Court remarked that it doubted whether a Government agency has ever demanded such accompanying evidence and the reply from the Assistant United States Attorney was to the effect that that well might be.

I earlier observed that the claim was not declined on any such technical basis. It was denied because there was no "showing" of negligence by the United States. To construe the law and Regulations as permitting a valuable right of minor children to be destroyed by the failure of the "guardian" to show for whom she is acting in that alleged capacity seems to me to be unwarrantably harsh. She had to represent somebody. It does not appear that Dolly Young had qualified as...