Opinion
W. Munro Roberts, Jr., St. Louis, Mo., for plaintiff.
Donald L. Schmidt, Asst. U.S. Atty., Richard D. FitzGibbon, Jr., U.S. Atty., St. Louis, Mo., for defendant.
HARPER, Chief Judge.
This suit was filed by Albert Anthony against the defendant under the provisions of 28 U.S.C.A. § 1346, commonly referred to as the Federal Tort Claims Act.
Plaintiff seeks to recover for the death of his wife which occurred as a result of an accident on or about the 17th day of September, 1963. The decedent received critical injuries on said date, when as a pedestrian she was struck by a motor vehicle (mail truck) which was being operated by an employee of the United States Government and used in the delivery of United States mail.
The testimony and the exhibits disclose that the accident occurred at about 9:25 AM., on Tuesday, September 17, 1963, at the intersection of Alfred Avenue and Arsenal Street in the City of St. Louis, Missouri; that Arsenal is a main thoroughfare and that Alfred Avenue is a one-way street which dead-ends at Arsenal, where boulevard stop signs are located, requiring the traffic on Alfred to make a complete stop before entering onto Arsenal; that a United States Post Office mail box is located on the south curb of Arsenal Street just west of Alfred Avenue, which mail box is located in a bus zone; that Erwin Santeen, an employee of the United States Postal Department, driving a postal truck, stopped said truck at the west curb of Alfred Avenue just south of Arsenal, alighted from the truck and went to the mail box to pick up a sack of mail; that at about the time Santeen was placing the mail sack in the mail truck a Bates Street bus traveling on Alfred Avenue stopped at the bus zone located on the east side of Alfred Avenue; that Clara Anthony, the deceased wife of plaintiff, alighted from said bus and started across Alfred Avenue; that Santeen started the mail truck and ran over Clara Anthony, the wife of the plaintiff; that the mail truck was stopped shortly after the deceased was hit and the deceased was underneath the truck; that the deceased was removed to the City Hospital and at 5:00 P.M. on said date died of the injuries received in said accident.
The testimony further discloses that Clara Anthony, age 62, was the wife of the plaintiff, Albert Anthony; that they had been married for some 44 years and had two adult children; that the plaintiff was retired and drawing Social Security, and that the deceased received $42.80 per month in Social Security benefits; that the deceased was not employed, but was a housewife; that the City Hospital bill was $180.00, the doctor bill $150.00, the funeral bill $1,380.00, and the cemetery lot and grave opening $320.00, a total of $2,030.00.
Under the Missouri law, which governs this case, as held in Hartz v. Heimos, Mo., 352 S.W.2d 596, there is substantial evidence to support the negligence of Santeen, the driver of the mail truck, as being negligent for failing to keep a lookout and that such negligence was the proximate cause of the death of the wife of the plaintiff. The court finds that the plaintiff carried the burden of proof with respect to the negligence of the defendant and under the Missouri law is the proper party to recover for the death of his deceased wife.
Judgment will accordingly be for the plaintiff in the sum of $8,030.00, of which amount twenty percent (20%), or $1,606.00, shall be allowed as an attorney's fee.
This memorandum opinion is adopted by the court as its findings of fact and conclusions of law and the clerk will enter the proper order.