Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Appellant sued below under the Federal Tort Claims Act, 62 Stat. 982, 28 U.S.C. § 2671 et seq., alleging personal injuries caused by the negligence of a Government employee acting within the scope of his employment and in the line of duty. The case was tried to the Court as the statute provides, 28 U.S.C. § 2402 and resulted in a judgment against plaintiff from which he now appeals.
The incident forming the basis of the action occurred on April 30, 1948 about 5:00 P.M. on the Bayonne, New Jersey, Naval Supply Depot in the vicinity of its 32nd Street gate.Prior to an outside civilian being allowed on the base he had to identify himself. He then received a clearance button which he surrendered on leaving.
The appellant Lewis, in the business of buying and selling second-hand machinery, had purchased some surplus Navy machinery which was still on the base. Among that machinery was a crane which Lewis wished to crate and ship away. About 8:30 on the morning of April 30, 1948, Lewis came to the base in his automobile to take care of this. He was accompanied by two employees, Ferdinand and William Unger, father and son. After parking his car outside the 32nd Street gate he and the Ungers went to the guard-house by the gate. They registered, were given identification buttons and went on into the base to the crane's location. Later that morning another Lewis employee, Kinney by name, drove on the base in his automobile to which a trailer was attached. In the trailer were tools belonging to Lewis. Kinney with his automobile and trailer joined Lewis at the crane. About quarter of five that afternoon Lewis and his men finished working for the day and they all rode back to the gate in Kinney's car. The Lewis tools were in the attached trailer with the exception of some sort of an acetylene torch which was in the rear of the car. Lewis testified that there had been thefts from the base; in particular, "some thousands of dollars worth of stuff" had been stolen from the base, and "every car leaving the post between 4:30 and 5:30 were searched."
The Lewis car was stopped at the gate by a Marine sentry because there was no property pass covering the tools. Lewis was advised that such a pass was necessary and Sergeant Daniels of the Marine guard escorted him to the civilian guard office in a building adjoining the gate in order that this might be attended to. There, according to Stewart, the civilian guard on duty, Lewis started swearing. "God-damn it," he said, "I have been buying material from the Government, $80,000 worth, and I want to get processed much quicker than this." Later, Stewart testified, Lewis cursed at him and said, "* * * I will get you outside the reservation." Stewart immediately called the Provost Marshal's office and talked with Mrs. Tiene, secretary to the Provost Marshal and a security office employee, about the property pass. He said that as he was talking Lewis "* * * grabbed the 'phone and * * * started swearing." Mrs. Tiene testified that she heard the swearing over the telephone.
Acting on Mrs. Tiene's instructions Lewis in Kinney's car with Kinney driving, went to the proper base office to secure the property pass. Before doing so he sent the Ungers out to his own car to there await his return. He obtained the pass and he and Kinney came back to the 32nd Street gate where he gave the pass to Marine Corporal Zrubek, who was in charge. The corporal, inspecting the pass, found that it had been written in lead pencil, contrary to regulations. He ordered Kinney to pull his car out of traffic while the pass was checked.Zrubek testified that as the civilian guard Stewart was telephoning about the pass Lewis alighted from the car and stood on the side of his sentry box and said, "These 'God-damn punks' and things like that. I cannot tell you the words. He called me a 'snot-nosed punk' and 'a snot-nosed beak'". Zrubek states that he did not argue with Lewis and simply told him that it was a matter for his commanding officer. The pass was cleared shortly by telephone and Zrubek went outside and so advised Lewis. He said that as Lewis "* * * goes to get in [the Kinney automobile] he called me a 'snot-nosed bastard'". Zrubek walked to the front of the car. He states the machine jerked forward. He instructed Private Foote, a Marine on sentry duty at the gate "* * * to hold the vehicle" while he telephoned the sergeant of the guard "* * * because we didn't like that sort of thing going on at the gate not only with me but anybody else." The sergeant ordered him to get the civilian police and have Lewis put under arrest. Zrubek had started over toward Stewart's office for that purpose when he heard some shots.
Private Foote testified that he knew little or nothing of the situation prior to Corporal Zrubek ordering him to hold the car. After receiving the order he states that he went to the left side of the car and instructed Kinney not to move it and Kinney had said, "all right." Lewis ordered Kinney to drive on, but Kinney refused. Then Lewis said to Kinney, "Get out I will drive." Kinney replied, "All right. You drive. He's got a gun." Lewis admitted that Kinney said to him, "He wasn't going to drive, he [Foote] had a gun." Kinney alighted from the car, Lewis moved in behind the wheel and started driving the car forward. As he did Foote told him that he could not move the automobile. Foote testified that Lewis said, "I will drive this God-damned car" or something to that effect and started off. Foote yelled "Halt" three times. He meanwhile, drew, loaded and cocked his pistol. Seeing that the car was not going to stop he fired two warning shots into the air. The car continued on and Foote fired two shots at the car's left rear tire. One of the shots hit the left rear fender, the other went through the left rear glass and struck Lewis in the left shoulder as he was sitting in the driver's seat on the left side of the automobile. Lewis estimated that the distance from where he had last stopped which was where Foote was standing to where he was hit was about 170 feet. Foote guessed the distance as perhaps 150 feet. Asked about his orders with reference to restraining a person from getting away he said, "My orders were to hold the car, and I couldn't hold it by myself. The only thing I could do, that is what weapons were there for, to use."
Marine Captain McLeod, who was in charge of the Marine guards at the Bayonne Naval Supply Depot at the time of trial, testified concerning basic orders for sentinels in force on April 30, 1948 and applicable to Private Foote at that time. He said that under the first general order the sentinel "* * * carries out and uses all means at his disposal to arrest the person or any party causing a disorder on his post." He further said that "These orders, all sentinels standing a post are required to memorize prior to being posted."
Lewis was taken to the Bayonne Hospital where the bullet was removed by Dr. Chayes. The latter was not a witness. The Government agreed to allow a report by him to be read into evidence upon the understanding that if the doctor were a witness he would testify substantially the same as what was contained in the report. The report said that the bullet had fractured the left shoulder. Lewis stated that he was in the hospital for two weeks or a few days over two weeks. The doctor's report said that the doctor discharged Lewis on November 29, 1948, with some permanent disability of the left shoulder.
The Trial Judge found as facts that Lewis did use profanity and was abusive on one or more occasions and did engage in one or more altercations with the Marine and civilian police personnel of the base and that as a result Private Foote was ordered by his superior to hold the Lewis car until permission to arrest Lewis was obtained. The events thereafter were found to have happened as already outlined above.
There was a finding that civilian patrolman Stewart, Corporal Zrubek and Private Foote acted "* * * within the scope of their proper functions and duties in all of their actions in connection with the plaintiff and the stopping of the car in which he was a passenger, * * *" and that they only did "* * * what they considered necessary and appropriate in the proper execution of their duties and orders, * * *" except that Foote in firing his pistol, as he did, was found to have "* * * used excessive force under all the circumstances surrounding the occurrence."
By the final finding of fact Lewis was held to have been negligent "* * * when, in spite of instructions from the sentry to stop the car, he wilfully drove it away from the gate."
As a conclusion of law it was held that the shooting was an assault and battery upon Lewis and consequently non-recoverable under sub-division (h) of the Exceptions to the Tort Claims Act, 28 U.S.C. § 2680(h). Contingently it was concluded as a matter of law that if Foote's action did not constitute assault and battery but under the circumstances was to be construed as an act of negligence so as to bring it within the Tort Claims Act, then Lewis' failure to stop on Foote's order ...