Stewart v. United States

186 F.2d 627, 1951 U.S. App. LEXIS 3624

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 10, 1951
• Docket: 10131
• Status: Published

Opinions

MAJOR, Chief Judge.

This is an action for damages brought hy Walter B. Stewart and his minor sons, Sinclair Stewart and Donald Stewart, by Walter B. Stewart, their next friend, against the United States of America, under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b). The damages claimed resulted from injuries sustained by the boys from the explosion of a hand smoke grenade which theretofore had been a part of a stock of such grenades maintained by the Army at Fort Sheridan, located in the State of Illinois.

The material facts are shown by the pleadings, affidavits attached thereto, by answers to interrogatories and by stipulation. Upon such facts both the plaintiffs and the defendant moved for summary judgment, whereupon the court overruled' plaintiffs’ motion and allowed that of the defendant. Consequently, the complaint was dismissed at plaintiffs’ cost. From this order of dismissal the appeal comes to this court. Our previous opinion in this matter, rendered September 5, 1950, is withdrawn, and all orders entered pursuant thereto are vacated and set aside.

In the early months of 1947, the government’s agents and the United States Army maintained a stock of hand smoke grenades, Mark 15, on the Military reservation known as Fort Sheridan, Illinois. The grenades were packed in boxes plainly marked with the word, “Fireworks.” They were stacked in the open, not within a magazine or building, but covered over the top with a tarpaulin which did not conceal the lettering on the sides of the boxes. These stacked boxes of grenades were located within the Fort’s Magazine Area, which was enclosed by a six-foot woven wire fence with three strands of barbed wire at the top. Within the same area were located magazine structures provided for the storage of ammunition and explosives. The Magazine Area was well within the perimeter or outside fence of the military reservation and was not visible to persons standing outside of such fence. No guard was maintained at the Magazine Area; however, the reservation was divided into two sections, in each of which was assigned a roving patrol. A large sign was posted on the roadway leading to the Magazine Area, which read, “Danger Military Explosives, This Road Closed to Public Traffic.” Another sign on the gate of the magazine enclosure read, “Keep Out. No Smoking No Matches No Lighters Permitted in This Area.”

The military reservation was open to the public, with free access to persons of all ages. There were sentries posted at the several gates in the perimeter fence but members of the public were permitted to come and go in the reservation without escort. The Magazine Area was accessible to the people. The perimeter fence had a large opening where it was -broken down at a point near the Magazine Area and no sentry was posted at this opening. Among members of the public who frequented the reservation were high school boys from the adjoining village of Lake Forest, including Robert Toogood, age 15, George Baldwin, age 17, and the latter’s younger brother, Leslie. Sometime in the early part of 1947, these three boys entered the reservation . through the unguarded opening in the perimeter fence along the north boundary where the Fort adjoins the Lake Forest city dump. They saw the boxes, noticed that they were marked “Fireworks,” scaled the woven wire fence and removed four boxes to their home. They shot off many of the grenade's and left one case in a vacant lot next to the Baldwin residence in Lake Forest.

On September 10, 1948, Sinclair Stewart, age 8, and his six year old brother, Donald, were playing in the neighborhood near their home and came across the box of grenades in the lot next to the Baldwin house. They picked up one of the grenades, which exploded in Sinclair’s hand. As a result his right hand was shattered and his legs burned so that he was permanently disabled. Donald also suffered numerous severe burns.

Plaintiffs’ claim for recovery rests upon two grounds. The first is that the user of explosives acts at his own peril and is responsible for any injury resulting to innocent persons. Under this theory the user or possessor of such explosives becomes virtually an insurer and is liable even without negligence for any injury done. While there is some authority which tends to support this theory, in the view which we take of the case we find no occasion either to embrace or reject this theory of liability.

The second is that the government was negligent in the manner in which it stored the explosive grenades, thereby creating a situation which enabled their removal from the Magazine Area to a point where the Stewart boys were injured. In disclaiming liability, the government urges (1) that there was no negligence on the part ■of the government and its employees, and (2) even if there was negligence, that the injuries complained of were not the proximate result thereof but flowed from the wrongful act of the three high school boys in removing the grenades from the Magazine Area to the point where the injuries occurred, or more specifically, that the injuries complained of were the result of the wrongful act of third parties and that the government’s negligence was not the proximate and efficient cause thereof.

In the beginning, we are confronted with the perplexing problem as to whether the law of Illinois with reference to negligence and proximate cause is to be given effect. Plaintiffs urge that it should be, including an Illinois statutory provision directed at the manner in which explosives shall be stored. The government insists that this statutory provision is of no effect, although it tacitly concedes that the law of Illinois as announced by its courts is controlling insofar as it relates to common law negligence and when such negligence is excused because of the intervening act of a third party.

Sec. 143 et seq., Chap. 93, Smith-Hurd Illinois Annotated Statutes, provides in detail the manner and means to be employed for the storage of explosives. Sec. 145, with exceptions not here material, provides “no person shall possess or store explosives unless such explosives are completely enclosed or encased in tight metal, wooder. or fibre containers. * * * Every con tainer shall be plainly marked with the name of the explosive contained therein.’' Sec. 146, with exceptions not here material provides, “all explosives shall be stored, it magazines * * *Sec. 147 provides “Magazines ■ in which explosives shall be lawfully kept or stored shall be constructed of brick, concrete, iron or wood covered with iron, and shall have no openings except for ventilation and entrance.” Sec 148 provides, “The doors of magazine; shall be kept closed and locked at all times except when opened for storage or removal of explosives by persons lawfully entitled to enter the same.” Sec. 154 provides foi fines and imprisonment for those who fail to comply with any provisions of the Act,

This Illinois statute was enacted in 1939, long subsequent to the cession by the Stati to the Federal Government of the Fori Sheridan' territory.' For this reason, defendant contends that it forms no part oi the law of Fort Sheridan where the alleged negligent acts occurred; in othei words, that the statute is without application.

It must' be admitted, so we think, that the cases sustain this view, in the absenc; of legislation by Congress making the law of the State or locality applicable. In James Stewart & Co. v. Sadrakula, 309 U. S. 94, 99-101, 60 S.Ct. 431, 434, 84 L.Ed. 596, is a good discussion of the situation in the absence of such legislation, as well as the recognized desire on the part of Congress to provide for a uniform standard of liability. After pointing out that “future statutes of the state are not a part of the body of laws in the ceded area”, the court stated: “Congressional action is necessary to keep it current. Consequently as defects become apparent legislation is enacted covering certain phases. This occurred as to rights of action for accidental death by negligence or wrongful act.” In support of this quote, the court oites Title 16 U.S.C.A. § 457, entitled “Action for death or personal injury within national park or other place under jurisdiction of United States; application of State laws”. This section provides, under the circumstances therein enumerated: “ * * * the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be.” The government contends that this provision is not applicable to the instant situation. Any doubt in this respect, however, need not be resolved, by reason of Sec. 1346, Title 28 U.S.C.A., commonly referred to as the Federal Tort Claims Act, enacted in 1948, the relevant portions of which provide that a United States District Court “shall have exclusive jurisdiction of civil actions on claims against the United States, * * * for * * * personal injury or death caused by the negligent or wrongful act or omission of any employe of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” No question is raised but that those in charge of Fort Sheridan and in possession of the explosive grenades were “acting within the scope of his office or employment,” and admittedly the Fort Sheridan area was within and a part of the State of Illinois even though it had been previously ceded to the government of the United States. The language of the Act plainly discloses a twofold purpose, (1) waiver by the government of the immunity which it had previously enjoyed, and (2) that its liability be determined “in accordance with the law of the place where the act or omission occurred.”

In State of Maryland v. United States, 4 Cir., 165 F.2d 869, 871, 1 A.L.R.2d 213, the court, referring to this section, stated: “This language clearly means that the standards and tests of local law are to determine whether a negligent or wrongful act has been established which is actionable and the nature and extent of the recovery permitted on account thereof * * * And again, on the same page, the court stated : “To have defined all of the tort rules-under which liability could be established would have been an almost impossible undertaking; but standards of liability were necessary and Congress was compelled, as a practical matter, to adopt the principles- and standards of local law in defining them.”

In United States v. Campbell, 5 Cir., 172 F.2d 500, 503, the court stated: " * * * the known purpose of the Tort Claims Act,, as shown by its antecedent history, and the record made in its passage, to make the United States liable to third persons for the acts of its employees under the same circumstances, and no other, as those under which private persons would be liable for the acts of their employees aocording to the law of the place where the injury occurred.”

To similar effect is Cerri v. United States, D.C., 80 F.Supp. 831, 833, where it was stated: “The act gives the consent of the United States to be treated by the injured party as if it were a private individual, amenable to court action without claim of immunity, in all those cases, not exempted by the act, where the negligence of its agents, servants or employees has caused injury or damage to third parties.”'

It may be further observed that the Act,, with certain exceptions which we regard as inapplicable here, makes no distinction as to-places where the wrongful or negligent, act is committed. In this respect, it is all-inclusive. It is immaterial whether the negligent or wrongful act is committed on a military reservation, at a veterans’ hospital,, a post office building or on the city street. In all instances, the United States is liable-“if a private person would be liable * * *• in accordance with the law o-f the place where the act or omission occurred.” Thus,. this Act is a further recognition by Congress of the desirability of a uniform standard of liability. To hold that it is without application, as defendant would have us do, is to make a no man’s land out of the Fort Sheridan area, with no legal system for the adjudication of private rights.

It is, therefore, our conclusion that the Illinois statute providing the manner and means to be employed in the storage of explosives is for the purpose of the instant litigation applicable to the defendant. That no effort was made to comply with this statute is evident. And it is settled in Illinois that failure to observe the requirements of the State statute or ordinance as to care is evidence of negligence. Ostergard v. Frisch, 333 Ill.App. 359, 77 N.E.2d 537; Pennington v. Rowley Bros. Co., 241 Ill.App. 58; Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322, 23 N. E. 389, 7 L.R.A. 262. In the Laflin & Rand Powder Co. case, the court stated at page 328, 23 N.E. at page 391: “In keeping a powder magazine in the town without complying with the condition named in the ordinance, the defendant was guilty of malfeasance.”

Moreover, irrespective of the Illinois statute, we are of the view that the government was negligent in the manner of its storage of the grenades both as a matter of fact and of law. Undoubtedly the rule in Illinois required a high degree of care and use of the utmost precaution in the handling and storage of the grenades. That they were an explosive calculated to do great harm is not open to question. The rule is aptly stated in Bunyan v. American Glycerin Co., 230 Ill.App. 351, at page 357 where the court stated: “The owner of a commodity so inherently dangerous as nitroglycerin is required to exert the highest degree of care to keep it in close custody to prevent its doing mischief, and that duty never ceases; and such owner is liable for all the natural and probable consequences which flow from any breach of that duty. 22 R.C.L. 165. One keeping or storing dangerous explosives must exercise reasonable care, which is such care as is commensurate with the apparent danger. Accordingly, it is said that the utmost caution and highest degree of care must be used in the care and custody of dangerous explosives. 25 Corpus Juris 18'5.” See also Hertz v. Chicago, Indiana & Southern R. R. Co., 154 Ill.App. 80, 88; Decatur Cereal Mill Co. v. Boland, 95 Ill.App. 601.

The government in its claim of due care points out that there were two fences surrounding the Magazine Area wherein the grenades were stored, that is, the perimeter fence surrounding the reservation and another fence immediately surrounding the Magazine Area. The perimeter fence may be left out of consideration for the reason, as already noted, that the public, including the boys who removed the grenades, were freely admitted to the reservation. Also of little if any significance as a precautionary measure is the fact that a roving patrol or guard was maintained. There is nothing to show or indicate that he was assigned the duty of guarding or protecting these dangerous explosives; in fact, the record indicates to the contrary. The sole care exercised by the government as to these highly dangerous explosives in boxes stacked in the open, with the alluring label, “Fireworks,” plainly visible thereon, was a six foot woven wire fence with three barbed wires on top. The record shows no further details relative to this fence, but if it is the kind of woven wire which we have in mind it would afford little if any obstacle to a person, especially a boy, desiring to enter the Magazine Area. Certainly only such protection as was afforded by this fence was far from commensurate with the known dangerous character of the instrumental-ities stored within, and in our view it was an inexcusable failure to exercise the high degree of care which the law requires under such circumstances.

The government relies upon the rule that land owners have no duty to keep their premises in any particular condition to exclude trespassers and numerous Illinois cases are cited in support of such rule. We have examined these cases and find none applicable to the instant situation. As shown, the rule in Illinois requires the highest degree of care in the handling and storage of explosives, irrespective of where such storage may be, and such care is decreed both by statute and by the courts based on common law principles.

This brings us to what we think is the most serious impediment to plaintiffs’ right to recover, that is, whether the government’s negligence was the proximate and efficient cause of the injuries complained of. That the injuries were attributable in part to the wrongful activities of the boys who entered the Magazine Area and removed the grenades is not open to doubt, but the question is whether this wrongful conduct on their part is such as to rescue the government from its negligence. The Illinois courts have spent much effort in defining this so-called doctrine of proximate cause. In Merlo v. Public Service Co., 381 Ill. 300, page 317, 45 N.E.2d 665, page 675, it is stated: “The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own negligence. (Seith v. Commonwealth Electric Co., 241 Ill. 252, 89 N.E. 425, 24 L.R.A., N.S., 978.) If the act of a third party is the immediate cause of the injury and is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong, the connection is broken and the first act or omission is not the proximate cause of the injury.” And in Gilbert v. Goralnik, 238 Ill.App. 199, the court quoted from a previous Supreme Court opinion as follows 238 Ill.App. at page 203: “ ‘Whenever a new cause intervenes- which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the -final injurious consequence could not have happened, then such injurious consequences must be deemed too remote to constitute the basis of the cause of action.’ ”

In Neering v. Illinois Central Railroad Co., 383 Ill. 366, 50 N.E.2d 497, the plaintiff was a woman who was criminally assaulted and raped on the station platform of the defendant railroad. It was held that the defendant was negligent in failing to provide a safe platform. In so holding the coxirt stated 383 Ill., at page 377, 50 N.E.2d at page 502: “The question however, is, from the conditions which defendant permitted to- exist around its station, could it reasonably anticipate that plaintiff might be assaulted and as a consequence observe reasonable precaution to prevent it. It is our judgment the conditions were such that defendant ought reasonably to have anticipated plaintiff might be assaulted and that there is some evidence that -reasonable precaution was not taken for her protection.” More than that, the court rejected the defense that the criminal act of the assailant was an intervening cause so that the negligence of the railroad was not the proximate cause of plaintiff’s injury. In so doing the court cites and reviews many Illinois cases on the doctrine of proximate cause and summarizes the same as follows 383 Ill. at page 381, 50 N.E.2d at page 504: “The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, efficient and intervening cause so that the negligence is not actionable is subject to the qualification that if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of the injury and he may be held liable not- ' withstanding the intervening cause. The intervening act of a third person does not necessarily relieve the author of an earlier negligent or wrongful act from responsibility when the intervening cause of an injury is of such nature as could reasonably have been anticipated, in which case the earlier negligent act, if it contributed to the injuries, may be regarded as the proximate cause.”

A more striking case and perhaps .more pertinent to the instant situation is that of Ostergard v. Frisch, 333 Ill.App. 359, 77 N. E.2d 537, which clearly establishes the principle in Illinois that the owner of a dangerous instrumentality is responsible for damages caused by that instrumentality when he fails to adhere to a statutory standard of safekeeping, and that such liability is not affected by the intervening ■wrongful act of a third party. In that case the defendant had left his automobile parked with the key in the ignition, contrary to a statutory provision which required its removal when the car was left unattended. In the absence of the defendant, the car «vas stolen, and while driven by the thief collided with plaintiff’s automobile. A judgment against the owner of the car was sustained. The court, after holding that the car owner was negligent in failing to comply with the statute, considered at length the question as to whether the owner was exculpated from liability by reason of the intervening act of the third party who stole the car. In deciding against the owner the court stated 333 Ill.App. at page 368, 77 N.E.2d at page 541: “ * * * there is imposed upon the owner of the car a duty to reasonably foresee the consequence of his negligence, that being one of the tests of proximate cause. He should not be permitted to say that he could not reasonably foresee that by leaving the key in the ignition, one might tamper with or steal the car and become reckless in its operation, causing damage.”

The Court of Appeals for the District of Columbia, in Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, reached the same result upon similar facts. There, the owner of a truck left it parked in an alley with the key in the switch, contrary to an ordinance. The truck was taken by an unknown person and negligently ran over the plaintiff. The court stated 139 F.2d at page 15: “If by creating the hazard which the ordinance was intended to avoid it brings about the harm which the ordinance was intended to prevent, it is a legal cause of the harm. This comes only to saying that in such circumstances the law has no reason to ignore and does not ignore the causal relation which obviously exists in fact.” And the same court in Schaff v. R. W. Claxton, Inc., 79 U.S.App.D.C. 207, 144 F.2d 532, held that the leaving of an unlocked car on a vacant lot where the ordinance was without application presented a jury question as to the owner’s negligence and whether such negligence was the proximate cause of an injury sustained while the car was being operated by an unauthorized third party.

Turning to the instant situation, could the government reasonably have foreseen or anticipated that boys might enter the Magazine Area and remove grenades? A negative answer to this question requires a disclaimer of all knowledge of the proclivities possessed by the ordinary boy for discovery, exploration and the satisfaction of a curiosity oftentimes easily aroused. What could be more alluring or fascinating to a boy or group of boys, whether of tender or more mature age, than a pile of boxes in plain sight, labeled “Fireworks” ? Presented with a situation of such appealing nature they did what might reasonably be anticipated of normal boys — ■ they climbed over the fence and carried away some of these dangerous instrumen-talities. Such a result could have been readily foreseen by the exercise of reasonable diligence on the part of those in charge. The government argues that the three boys who took the grenades were trespassers at the time they entered the reservation. The record, however, does not support this contention. They were on the reservation, as they had been on previous occasions, and as other members of the public had been, with the implied and perhaps express consent of the government. True, when they scaled the fence and entered the Magazine Area they were trespassers, and by carrying away the grenades committed a theft, but the government cannot disclaim responsibility for such trespass because the boxes containing the grenades with their attractive labeling were in plain sight before and at the time the boys climbed the fence, and the character of the fence, as already noted, was such as to present little if any obstacle to the boys’ activities. In our view, the principle applied by the court in Ostergard v. Frisch, supra, is not distinguishable from that which should be applied here. There, the owner of the car was negligent; here, it was the government. There, a trespasser drove the car away with the resultant injury and damages; ¡here, the boys were trespassers and carried away the grenades, which resulted in injuries and damage to the plaintiffs.

The government places- much reliance upon the recent case of Schmidt v. United States, 10 Cir., 179 F.2d 724, which undoubtedly is similar in many of its aspects to the instant case. There, bazooka shells were carried home by an employee of a government contractor who found them while working on the range at Fort Riley. One of the shells exploded while his children were playing with it, killing three and injuring others. The court assumed that there was negligence on the part of the government but held by a divided court that such negligence was not the proximate cause of the injuries. In doing so, the court stated 179 F.2d at page 728: “From all the authorities, as well as from sound logic, it must be said that the Government could not reasonably anticipate that an adult, mature man of ordinary intelligence, who was- on the reservation under a license for a specific purpose would commit a trespass and wilfully take with him to his home property which he had no right to take. Schmidt’s unlawful act was therefore an independent, intervening act. which alone was the proximate cause of the injury.” There, the court reasoned that the government could not reasonably anticipate that an adult, mature man would remove and take to his home the explosives-, but here we are dealing with boys, and under the circumstances we think the government could reasonably anticipate that they might do as they did. More than that, the court in the Schmidt case was interpreting and applying the rule of proximate cause as announced by the courts of the State of Kansas, while here we are dealing with the rule as announced by the courts of Illinois. As was said in Bunyan v. American Glycerin Co., 230 Ill.App. 351, 358: “But, since disastrous results from negligence in the care of high explosives may reasonably be anticipated, courts will not look too narrowly for independent causes intervening between the injury and the original negligence in keeping.”

The government concludes its brief with the statement, “The law does not require one to guard against every possible occurrence but merely danger within the range of reasonable apprehension.” We agree with this statement as a general principle but we do not agree that it is applicable to the instant situation. That the government negligently permitted a situation fraught with great danger is hardly open to doubt, and that the intervening act which it relies upon as an avenue of escape from its negligence might reasonably have been apprehended is also clear. Such being the case, its negligence contributed to the injuries complained of and must be regarded as the proximate cause.

We conclude that the court erred in allowing defendant’s motion .for summary judgment and dismissing the complaint. In view of what we have held, it is also evident that the court erred in denying plaintiffs’ motion for summary judgment. The point is made that we are without jurisdiction to decide this latter issue for the reason that the denial of a motion for summary judgment is interlocutory and, therefore, not appealable. Undoubtedly that is true where the appeal is from such an order, but here there is no question but that the appeal is from a 'final judgment. Under such circumstances and in view of the fact that both sides moved for a summary judgment, which leaves undisputed any issue of fact, we think we may properly consider any issue of law presented by the record. It follows from what we have held that plaintiffs are entitled to a judgment, and all that remains is the assessment of plaintiffs’ damages.

The petition for rehearing is denied, and the cause is reversed and remanded, with directions to proceed in accordance with the views herein expressed.