207 F.2d 563 (2nd Cir. 1953), 14, Jones v. United States

Docket Nº:14, 22687.
Citation:207 F.2d 563
Party Name:JONES et ux. v. UNITED STATES.
Case Date:October 28, 1953
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 563

207 F.2d 563 (2nd Cir. 1953)

JONES et ux.



Nos. 14, 22687.

United States Court of Appeals, Second Circuit.

October 28, 1953

Argued Oct. 6, 1953.

Page 564

Clayton M. Jones, Jr., Jamestown, N.Y., for plaintiffs-appellants.

Warren E. Burger, Asst. Atty. Gen., John O. Henderson, U.S. Atty. for Western Dist. of N.Y., Buffalo, N.Y., Paul A. Sweeney, Atty., Department of Justice, New York City, for defendant-appellee.

Before CHASE, Chief Judge, and CLARK and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Plaintiffs' second cause of action asserts wilful misrepresentation. This claim is clearly barred by Sec. 2680(h) of the Act. See United States v. Silverton, 1 Cir., 200 F.2d 824, at page 826. We think the first cause of action, for negligence, is also barred. Section 2680(h) prohibits suits against the government on claims arising out of 'assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.' As 'deceit' means fraudulent misrepresentation, 'misrepresentation' must have been meant to include negligent misrepresentation, 1 since otherwise the word 'misrepresentation' would be duplicative. The construction is strengthened by the inclusion of libel which may be either negligent or intentional.

The defendant has raised a number of other arguments in its briefs which we need not consider.



[1] Cf. Prosser on Torts (1941 ed.), pp. 704, 707, 726; Bohlen, Misrepresentation as Deceit, Negligence or Warranty, 42 Harv.L.Rev. 733.

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