
    MONTGOMERY v. UNITED STATES.
    Civ. No. 4324.
    United States District Court, M. D. Pennsylvania.
    Dec. 4, 1953.
    
      James W. McNulty and George A. Yavorek, Scranton, Pa., Charles H. Brunner, Jr., Norristown, Pa., for plaintiff.
    J. Julius Levy, U. S. Atty., Scranton, Pa., for defendant.
   WATSON, Chief Judge.

This action is brought under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b). The claim for relief is within the jurisdiction of this Court, authority having been granted pursuant to Special Act of Congress, May 19, 1951, c. 100, 65 Stat. A26.

The plaintiff, Mary E. Montgomery, instituted this action to recover damages for the death of her husband, Durbin A. Montgomery, who died as the result of an accident, which, it is alleged, was caused by the negligence of Edward J. McGoff, who at the time was driving an United States mail truck and was acting within the scope of his employment as an employee of the Post Office Department of the Government of the United States, the defendant. The plaintiff, Mary E. Montgomery, seeks recovery on her own behalf as widow under the Pennsylvania “Wrongful Death” Statutes, and on behalf of the Estate of Durbin A. Montgomery, Deceased, as administratrix, under the Pennsylvania “Survival” Statute. The action was tried before the Court without a jury.

On the basis of the pleadings and legal evidence received at the trial the Court makes the following findings of fact and conclusions of law:

Findings of Fact.

1. On February 15, 1944, the deceased, Durbin A. Montgomery, while crossing from the southwesterly to the southeasterly curb of Ninth Street, at the intersection of Lackawanna Avenue and Ninth Street in the City of Scranton, Lackawanna County, Pennsylvania, was struck by a mail truck owned and operated by the Postal Department of the United States of America and at that time being operated by Edward J. McGoff.

2. Immediately prior to the accident, Edward J. McGoff was driving the mail truck on the left hand side of Lackawanna Avenue and at the time of the accident the truck was on the southeasterly and left hand side of North Ninth Street.

3. The deceased was struck by the defendant’s truck on the southeasterly side of North Ninth Street within a few feet of the southeasterly curb on North Ninth Street.

4. The accident was proximately caused by the negligent operation of the mail truck by defendant’s employee. It was not shown that Durbin A. Montgomery, Deceased, was negligent or guilty of contributory negligence.

5. At the time of the accident, Edward J. McGoff was an employee of the Government of the United States, and was acting within the scope of his employment.

6. As a result of the accident, Durbin A. Montgomery was thrown to the ground, sustaining severe physical injuries consisting of a depressed fracture of the skull, with a rupture in the middle meningeal vessel, resulting in a massive subdural hemorrhage and decedent’s death on March 4, 1944.

7. The plaintiff, Mary E. Montgomery, is the surviving spouse of Durbin A. Montgomery, Deceased.

8. The plaintiff, Mary E. Montgomery, paid Dr. Stevens, Scranton, Pennsylvania, the sum of $20 for an examination of Durbin A. Montgomery, Deceased.

9. The plaintiff, Mary E. Montgomery, paid Dr. Redel, Scranton, Pennsylvania, the sum of $223 for professional services rendered for treatment of injuries sustained by Durbin A. Montgomery, Deceased, in the said accident.

10. The plaintiff, Mary E. Montgomery, paid the sum of $192 for nurses’ care of Durbin A. Montgomery, Deceased.

11. The plaintiff, Mary E. Montgomery, paid the State Hospital, Scranton, Pennsylvania, the sum of $135 for hospital bills incurred by Durbin A. Montgomery, Deceased.

12. Funeral expenses paid by the plaintiff, Mary E. Montgomery, for the burial of Durbin A. Montgomery were $656.

13. The plaintiff, Mary E. Montgomery, paid the sum of $200 for a tombstone for Durbin A. Montgomery’s grave.

14. Durbin A. Montgomery incurred pain and suffering from the time of the accident on February 15, 1944, until the date of his death, March 4, 1944.

15. The average weekly earnings of Durbin A. Montgomery at the time of the accident were $55 per week.

H3. Durbin A. Montgomery, Deceased, was born on October 1, 1880.

17. Under the Commissioners 1941 Standard Ordinary Mortality Table, 58 C.J.S., page 1212, Durbin A. Montgomery had a life expectancy, at the time of his death, of 12.69 years.

18. The plaintiff, Mary E. Montgomery, suffered damage to the extent of $7,500.

19. The plaintiff, Mary E. Montgomery, is the administratrix of Durbin A. Montgomery, Deceased, by virtue of letters of administration granted in Lackawanna County, Pennsylvania.

20. The estate of Durbin A. Montgomery suffered to the extent of $500.

Conclusions of Law.

1. The claim for relief herein is within the jurisdiction of this Court, authority having been granted pursuant to Special Act of Congress, May 19, 1951, c. 100, 65 Stat. A26.

2. The accident and resultant death of Durbin A. Montgomery were proximately caused by the negligent operation of defendant’s mail truck by its employee within the scope of his employment.

3. It was not shown that the Deceased, Durbin A. Montgomery, was negligent.

4. The United States is liable for damage, loss, injury, or death caused by the negligence of any employee of the Government while acting within the scope of his employment, under circumstances where the United States, if a private person, would be liable for such damage, loss, injury, or death in accordance with the law of the place where the act occurred. 28 U.S.C. § 1346(b).

5. The cost of the tombstone for Durbin A. Montgomery’s grave is an item of damage which can be recovered in this action. Kotal v. Goldberg, Pa. Sup., 100 A.2d 630.

6. The plaintiff, Mary E. Montgomery, is entitled to judgment against the defendant, the United States of America, in the sum of $7,500.

7. The plaintiff, Mary E. Montgomery, as administratrix of Durbin A. Montgomery, Deceased, is entitled to judgment against the defendant, the United States of America, in the sum of $500.  