*1 UNITED STATES SCHMIDT v. other cases. seven Nos. 3983-3990. Appeals
United States Tenth Circuit. Jan. *2 unexploded shells, Stone, New- turned out be Rodney Nye and Sidney J. shells, Not Peterson, Newton, bazooka on Reservation. the ton, (Bernard Kan. believing and knowing their nature brief), appellant. Kan., on for the harmless, he removed these shells were Miller, Malcolm Eugene Davis and W. and some the Reservation of them from Topeka, Attorneys, Assistant United States him home near took them with to his At- Luther, United States (Lester Kan. was Newton as souvenirs. The removal brief), for torney, Topeka, Kan., the on authority knowledge without the or appellee. agents. or While his United its States HUXMAN, MURRAH and Before eight playing were with these children PICKETT, Judges. Circuit shells, exploded, killing three one remaining seriously injuring and five children. Judge. HUXMAN, Circuit substance, caption complaints in amended al- eight cases set out The States, 3990,inclusive, leged acting through United were that the
numbered from n filed the agents, guilty negligence was toward in United District States plaintiffs permitting high ex- of Kansas recover for the District plosive promiscuously damages States for the shells to- remain on against the United ground guard warning to injury to five the without death and or of three employees chil- who eight the contractors others. children were their The Carolyn premises pursuant entered Schmidt and dren of Elizabeth contract, negligence Three cases were their and Arnold Schmidt. M. sole, by Carolyn exclusive, Schmidt as ad- the and filed Elizabeth injuries ministratrix of the three de- death and suffered from the estates children, explosion. remaining ceased five and and next were filed in her name mother as is, course, It axiomatic that injured actions friend of children. The the motion to dismiss for failure to state instituted under the Tort were Federal of action admitted all facts well Claims court sustained a Act.1 The trial disputed pleaded, but since there is no defendant, Government, motion fact, principle issue of n is not deter complaints for to dismiss actions presented appeal. of the issue minative This failure to state a cause action. Where there is no issue of fact dis appeal followed. pute, question, complaint whether the disputed fact. Dur- There is issue of action, stated a becomes one of ing 1947,the summer of Government’s law decided the court.2 agents Military Riley at Fort Reser- may vation, Kansas, negligence be that Riley, located at en- Fort part Engstrom, of the Government to fail Mor-
tered into a contract with rison, others, unexploded remove shells- from the under which Reservation, that it permission also granted the Reservation to enter part cut, grant any on its prairie go one a license grass (cid:127)to bale part any onto for a 'hay Reservation the reservation purpose lawful having range during absence target had been used as n thewar. The premises cleared of such Military shells. For Reservation lo- opinion purpose approximately ninety may of this miles be as cated east of Newton, sumed Government Kansas. Arnold Schmidt who M. beyond in failing to remove these Newton was shells and lived some distance n employed granting go the contractors a license hay as hand the contractor cutting hay. for to assist in cutting hay. neg- But did this While constitute engaged, so Schmidt found certain 898; Cleghorn Thompson, sec[. 1. § 28 U.S.C.A. et LaPlante, Greiving Kan. L.R.A. 402. cuts ligence Negli- off removes plaintiffs? toward these grounds for impose action liability it is unless does recog- damages.4 direct, There certain well proximate, efficient cause exceptions specific rule, recognized by nized complained to this injury of.3 *3 all question exception is, the authorities. to the- Government derelict was the general possibility living rule is where the duty more it owed these Reservation, intervening, ninety than act should have miles efficient, direct, original but. wrongdoer, foreseen and was injury Palsgraf proximate by Judge as If stated in the negligence. result such Cardozo of case, then, supra: orbit the- “Even of violated failure to remove these shells eye danger duty as disclosed to the of reason- chil- the Government owed these dren, vigilance able merely would be the orbit may not be- recover duty.” general negligence cause it was on the Government’s fail remove great A con- number of courts have shells failure to or because the question trespasser’s sidered the whether duty to the breach of a owed explosives wrongful in removing act which workmen stated under the contract. As negligently there- have been left about and by Judge in the well reasoned case Cardozo parties injury after result in con- to third Co., Palsgraf 248 Long v. Island R. efficient,intervening so as stitutes cause 339, 162 99, N.E. 59 1253: N.Y. A.L.R. in- proximate to become cause of the “Negligence it in- actionable unless juries parties such third legally protected the invasion of a volves original negligent intervention removes the interest, right.” the violation aof explosives proximate handling of instance, And, negli- every “In before injury. generally cause of the These cases given act, predicated can bé fall into two classifications: Those sought back must found of the act be trespassers which chil- immature duty complaining, individual to the comprehension dren of limited and under- of which averted observance would have standing,5 and those tres- injury.” avoided the passers ordinary intelligence were adults of just way saying understanding.6 This is another that and right invasion must of one’s be cases, generally it is class direct, proximate, or efficient cause of wrongful held that the an immature injury. immaturity because his Ordinarily efficient, understanding lack of directly injury causes original becomes the cause thereof and have should realized that the Flaharty Reed, 319, 127; Cir., Hoover, 3. v. 167 Kan. 205 6 100 F.2d Harri 905; City Wichita, Co., Pittsburgh, P.2d Rowell v. 162 man &C. L. R. v. St. 294, Haggard 590; Am.St.Rep. 11, 451, Kan. Lowden, P.2d v. 176 45 Ohio St. 12 N.E. 4 522, 507; 300, Snyder, P.2d 156 134 676. Butrick 236 Mich. v. Ry. 311; City Cloquet, 4. Cal- Atchinson T. & S. F. Co. v. 210 N.W. Vills v. 1, houn, 33; Vallency 321, 277, 213 S.Ct. 53 U.S. 29 L.Ed. 119 Minn. N.W. 138 v. Flaharty supra; 671; Reed, Rigillo, 307, 348; Rowell v. 91 102 N.J.Law A. Wichita, City supra. Depew, County v. Town of Creek Kil v. Co., 263, 606; gore, 5. Diehl v. Green Fire Brick A. P. 117 Okl. 246 Smith P. 641, 984; Co., 79, 299 Mo. 253 S.W. v. Smith-Peterson 56 Nev. P. 45 Robinson, 440; 785, ex v. rel. 322 Mo. 2d 100 A.L.R. Barlow Olson v. Gill 977; 1050, Co., 151, 17 S.W.2d Lone Star Gas Home Investment 108 58 Wash. Parsons, 369; L.R.A.,N.S., Co. v. 159 Okl. P. 27 884. Granger Co., Telephone Telegraph Mathis v. Brick & Tile 85 Hale 6. v. Pacific Georgia Cal.App. 55, 3; Co., 280; Lee Wash. 149 P. v. Ken Independent Co., Ga.App. 850, nedy Quarry Products v. Forest Construc 267; Co., 475; Mills Central of tion 316 Mo. 163 S.E. Geor Perry gia Ry. Ga. v. Rochester Line S.E. 219 N.Y. 1098; 529, L.R.A.1917B, Ann.Cas.1914C, Luhman legal may proximate or be considered access to immature who have young and notwithstanding possession might premises come into away, intervening act.” carry them explosives, injury themselves thereby from the We think must said wrongdoer was others. Since decisions, logic, that as well as from sound act, it was such an bound to range within the reasonable expectations and in the of reasonable expectation and its the Government merely anticipated link becomes Schmidt, agents anticipate that whose set into motion which he chain causation right cutting on the was limited to com- injury in the and which resulted *4 hay, would and take become a plained of. had property to which no he set out in In of cases the class right. Suppose bazooka shells had these held that is generally it footnote pile piled in in a been a corner the fence wrongdoer bound to an original not placed platform a had or had been ordinary intelli ticipate an adult of that building. in stored an unlocked understanding a would commit if be liable Would the Government Schmidt property he trespass to which and remove pile platform went or into to right, wrong therefore his that had building. and as sou removed rea ful act was not within the venirs? was not Since the Government expectation. sonable required Schmidt, that ordinary understanding, adult would Kansas, in cases Since arose these required trespass, commit a it was not decisions, controlling. of its courts guard against liable the same and is not An Kansas cases im examination of the plaintiffs injuries to the for the suffered pels that conclusion it adheres in wrongful act from Schmidt’s general principle of the law outlined above. right. property had no to which he Wichita, al., et Rowell v. sole, alone was the conduct Schmidt’s 590, 595, Supreme Kan. P.2d injuries. appellants’ Court reaffirmed adherence to these person “A principles by stating that: who case Clark DuPont de v. E. I. make not a cause seeks redress does out Nemours Powder by showing only that suf action he Ann.Cas.1917B, 340, L.R.A.1915E, wilfully but if fered done he clearly distinguishable the facts. him, must act show that as to principle good illustration of the possibilities danger apparent as so original was liable for protected against him entitle intervening act reasonable which as although harm unin doing of person should have understood he tended.” In that case Powder to follow. liable T. Atchison, early inAnd case of employed Company was shoot oil and Stanford, 354, 377, Kan.* Co. v. S. R. F. belonging to it. gas well on said: “A Am.Rep. wrong- the court shot, employee án well was care After merely responsible for is not doer quart of solidified nitro lessly left about wrongful act, but his McDowell, result of he first glycerine well. near the Joe every responsible succeeding is also the farm and an em owner son of the injurious have been result could Drilling Company, ployee saw of the foreseen, by the exercise reasonable there, explosive lying fearing reasonable, natural diligence, as injury to himself or his would fel consequence wrongful probable of his act.” busy still about the low who were workers him, with well, it home carried Flaharty Reed, later case In the parents of his from one instructions again 319, 205 P.2d the court 167 P. it, took same to an get abandoned intervening “If rid of act was that: said attempted farm yard grave might reasonably have been foreseen or in a crevice stone actor, fence. his hide by the foreseen years prox- Two some later it was which alone was discovered boys, imate knowing of the injury. and not nature of material, they with a rock which struck it specifically analyze many We do not explosion injured caused cases appellant. cited To do so would plaintiffs Supreme Court that case. The change only the result and would un- held that did not the acts McDowell duly opinion. extend this independent, constitute an judgments appealed The several from are injuries cause and suffered held that the affirmed. plaintiffs prob- natural and were the consequences able MURRAH, (dissenting). Judge Circuit Com- on the the Powder pany in leaving dangerous My instrumen- for the brethren assume apparently Supreme tality lying conclusion, about. The did their ultimate quoted approval with decision court, the trial the Government Massachusetts Court Stone v. explosive failing to remove 536, 51 Ry. Boston Mass. A. place shell from where the licensees *5 that L.R.A. the effect it apt to upon harvesting it were to while come duty of to they was the the hay say But the on the reservation. provide against an inter- intrusion the that negligence such to did not extend agency was vening where intervention these children because the Government likely happen ordinary in the thing a anticipate reasonably to could not or foresee events, negligence and on children, course that the that also li- father of the a intervening agent censee, was the pick up carry would the shell negligence original wrongdoer. it home, ninety miles to his where his negli- Clearly, Company was The Powder curious unsuspecting children would gent explosive permitting dangerous them, be attracted they say, to As it. to undisposed to remain on duty. Government owed no actionable duty dispose others. It its to It stated, was of it. negligence Otherwise was not discharge if it failed proximate knew that this the to harm, because duty, necessity must do someone else of intervening father’s act of McDowell, intervening so. The act of cut off and removed Government’s therefore, agency, was, necessary step original a negligence. They recog- nize, however, exculpate chain that Gov- of causation the Powder to ernment, intervening negligent act must by Company negligently in motion set range have been within the not leaving dangerous explosive lying apprehension Government’s or foreseeabil- of, undisposed and his about was that, ity. they say taking As that negligence, its the shell farmer from the Gov- injury. ernment reservation amounted to a tres- at In these the shells were most cases pass, and that the Government not could dangerous working to those on the Reserva- reasonably foresee that a licensee would tion; dangerous anyone not shell, carelessly left remove the else, certainly living not someone reservation, home, to his where the chil- away. all au- From the one hundred miles eventually would come into contact dren logic, from sound it thorities, well as with it. the Government could said that must be disagree. point At this we In the adult, reasonably that mature place, agree I cannot that the father intelligence, ordinary who was on man of any word, sense spe- under a for a license the reservation negligent, if he negli- or that trespass purpose commit would was, cific language in the of the Kansas him to wilfully proper- with his home court, take “an efficient cause”. right Admittedly, no take. rightfully prem- had he was ty which he Schmidt’s independent, While there came therefore ises. he article act was unlawful Pittsburg value- Contra: Reduction Co. v. apparently which was useless so, Horton, Ark. 18 L.R. less, else harmless. is and to him This A., N.S., 905. place where have been in the it would not Obviously, it if it had was found. me, than To case is no this different Government, any would value Company Clark-Powder There the case. lying ground, have been found holding that difficulty court no unguarded, is and abandoned. There person’s the third act of the ex- secretly, taken sur- that evidence plosive neg- from where the defendant had wrongfully. reptitiously Certainly no ligently it, point left where it prompted one would to take such later, years found small children two value, oth- any article for was not an efficient cause. curiosity. er than mere equate only space We need time cogent analogy draw cas- cases, the two Moreover, adjudicated between experience es. If law is as recorded many, involving there are adjudicated cases, us that explosives, teaches storage use or in which leaving explosive result of in an shell parties acts of third be- have intervened unguarded place, apt pick- where it is to be plain- tween the wrong defendant’s and the up unsuspecting, ed by the curious tiff’s indicate ten- unmistakable improbable commonplace. Things but dency exculpate to insulate or the defend- commonplace certainly are ant with- only party if the an intentional third range apprehension. Whether wrongdoer.1 enough is not apprehension considered within the though negligent parent innocent *6 proximate cause, or as the I would hold Diehl v. A. P. Green Fire intervened. 984; complaint claim on Co., 641, Brick 253 states a 299 Mo. S.W. Granger Co., granted, & 85 relief accordingly Mathis v. Brick Tile can be re- 3; 634, May 1949 verse Wash. 149 L. R. the case. P. Harv. Mills v. Central Cir., 127; 1. Cases intentional 6 F.2d in which 100 Ry. Co., 181, insulated Ga. defendant. Hale v. Tele. & 140 Ga. 78 Pac. S.E. Terrell v. J. F. Telegraph 816; Co., Cal.App. 55, Giddings Son, 42 P. 183 280; Kennedy Independent Ga.App. 697, v. 914, Quarry 28 112 S.E. Lee v. Ga. Co., Co., Ga.App. 782, 850, Forest Products Construction 316 Mo. 44 291 S.W. 475; 267; Perry Snyder, Co., 163 v. Rochester Butrick Lime 219 S.E. v. 236 300, 60, 311; City 529, L.R.A.1917B, N.Y. N.E. Mich. 210 113 N.W. Vills v. 1058; Murphy City Cloquet, Rotan, 277, v. 119 Minn. Tex. 138 N.W. v. 33; Civ.App.1940, Co., 139 Smith Smith-Peterson S.W.2d 134. 56 v. Ri 79, 785; Vallency wrong Nev. Cases in which unintentional 45 P.2d non-wrongdoer gillo, 348; 307, doer or 91 N.J.Law Har 102 A. failed to insulate R., riman Pitt Co. & defendant. Where acts of are v. St. L. 45 Ohio children 11, 451; St. 12 combined with action or Folsom-Morris non-action Mining v. DeVork, adults: Clark Coal Co. v. E. I. Pont 61 Du de Okl. Nem 75, 64, 1290; Co., City 268, L.R.A.1917A, P. ours Powder 160 94 Kan. 146 320, L.R.A.1915E, McIntosh, 479, 50, v. P. Tulsa 90 Okl. 215 Ann.Cas. 1917B, 340; 624; Depew, County Co., Diehl P. Town of v. Creek A. P. Green v. Kilgore, 984; 263, 606; 641, 117 Okl. 299 Mo. 253 P. Bradley Engineering Robinson, Akin & Ma ex rel. Barlow v. v. Co., 977; chinery Kingsland Mo. 48 Wash. 17 S.W.2d P. 586; Agr. L.R.A.,N.S., County v. Soc., v. Erie Olson Gill Home N.Y. 38; 84 N.E.2d Lone Investment Star Wash. Gas v. Co. Parsons, 369; 159 Okl. Granger Restatement, Torts, Mathis Brick See also Sections & Tile 85 Wash. and 522. P. 3. 442-452 Where acts only: Hoover, Luhman