218 F.2d 270 (5th Cir. 1954), 15070, Goodwill Industries of El Paso v. United States

Docket Nº:15070.
Citation:218 F.2d 270
Party Name:GOODWILL INDUSTRIES OF EL PASO v. UNITED STATES of America.
Case Date:December 29, 1954
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 270

218 F.2d 270 (5th Cir. 1954)

GOODWILL INDUSTRIES OF EL PASO

v.

UNITED STATES of America.

No. 15070.

United States Court of Appeals, Fifth Circuit.

December 29, 1954

Page 271

Ted Andress, El Paso, Tex., Andress, Lipscomb & Peticolas, El Paso, Tex., of counsel, for appellant.

Francis C. Broaddus, Jr., Asst. U.S. Atty., El Paso, Tex., Charles F. Herring, U.S. Atty., Austin, Tex., for appellee.

Before HOLMES and TUTTLE, Circuit Judges, and ALLRED, District Judge.

HOLMES, Circuit Judge.

This appeal is from a judgment dismissing an action, brought by appellant against the United States, under the Federal Tort Claims Act, for damages for loss of property caused by the alleged negligent acts and omissions of government employees. 28 U.S.C. § 1346(b). The court below dismissed the complaint on the ground that it failed to state a cause of action because it came within the exceptions to jurisdiction provided by Section 2680(a), Title 28 of the United States Code.

The complaint alleged that the appellant had clothing and personal property stored in locked buildings at Rio Vista Farm in El Paso County, Texas; that said Rio Vista Farm had been designated as a reception center for migratory Mexican workers, pursuant to an act of Congress; and that employees of the United States Labor Department moved a large number of such workers upon Rio Vista Farm where, by reason of the failure of said employees properly to supervise their activities, the said workers broke into the locked buildings and stole the property belonging to appellant.

The motion to dismiss was sustained on the basis of the provisions contained in Section 2680(a) of Title 28 United States Code, which provides that said section shall not apply to any claim based on the act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not the statute or regulation be valid, or based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or of any employee of the government, whether or not the discretion involved be abused.

Appellant contends that the above exceptions are not applicable, because (a) the government was not exercising a governmental function, but only a proprietary function in the handling of the migratory workers, and (b)...

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