Lohr v. United States
| Decision Date | 16 April 1959 |
| Docket Number | No. 17468.,17468. |
| Citation | 264 F.2d 619 |
| Parties | Carmen M. LOHR, Appellant, v. UNITED STATES of America et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert M. Brake, Benjamin W. Turner, Turner, Hendrick, Fascell & Brake, Coral Gables, Fla., for appellant.
Howard E. Shapiro, Morton Hollander, Attys. Dept. of Justice, Washington, D. C., Robert W. Rust, Asst. U. S. Atty., Miami, Fla., George Cochran Doub, Asst. Atty. Gen., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellees.
Before RIVES and TUTTLE, Circuit Judges, and SIMPSON, District Judge.
This suit was filed on June 24, 1958, by Carmen M. Lohr against several defendants — the United States of America, the Civil Aeronautics Administration, an agency of the United States of America; Riddle Airlines, Inc., a Florida Corporation; Sandy & Company; and Hector Alexander — to recover damages for the death of plaintiff's husband, a commercial airline pilot who was killed in the crash of a C-46 type aircraft operated by Riddle Airlines near Hollywood, South Carolina on December 17, 1955.
On August 12, 1958, the district court entered an order dismissing with prejudice the second amended complaint as to the defendant United States of America for failing "to show a duty owing the plaintiff by the United States of America, or the Civil Aeronautics Administration for which a cause of action would lie under the Federal Torts Claims Act." On August 25, 1958, this appeal was taken from that order. After the filing of the Notice of Appeal, a motion for summary judgment was granted for Riddle Airlines, Inc. on November 12, 1958, and plaintiff was allowed a voluntary non-suit as to the defendants Sandy & Company and Hector Alexander on December 9, 1958, neither of whom had been served with process.
On December 5, 1958, the appellee, United States of America, filed in this Court a motion to dismiss the appeal on the ground that "the order dismissing as to the United States is interlocutory only and not a final decision under 28 U. S.C.A. § 1291, since the suit is still pending in the district court against defendants Sandy & Company, and Hector Alexander, who have not yet been served." This motion further alleged that:
The motion to dismiss the appeal is well taken since this Court is bound by the authorities cited.
Appellant in oral argument, however, insists that the subsequent non-suit taken as to the defendants Sandy & Company and Hector Alexander on ...
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...but urges that Sider, decided October 17, 1988, should not be applied retroactively, and that our earlier decision in Lohr v. United States, 264 F.2d 619 (5th Cir.), cert. denied, 361 U.S. 814, 80 S.Ct. 51, 4 L.Ed.2d 61 (1959), should be applied instead. Agreeing with Gallagher, we conclude......
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Gauvreau v. United States Pictures, Inc.
...1012; Lopinski v. Hertz Drive-Ur-Self Systems, 2 Cir., 194 F.2d 422, 424; United States v. Woodard, 5 Cir., 257 F.2d 805; Lohr v. United States, 5 Cir., 264 F.2d 619; and Luria Bros. & Co. v. Rosenfeld, 9 Cir., 244 F.2d 192, 194. Cases quashing service against a single defendant and thus te......
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Sider v. Valley Line, 88-3305
...of Rule 54(b). In a footnote, the Insinga court stated: We acknowledge that a decision of the former Fifth Circuit, Lohr v. United States, 264 F.2d 619 (5th Cir.1959), might appear to dictate a different result. Lohr involved a single claim against multiple defendants, two of whom were neve......
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Kolc v. Maratta, 73-26-A
...dismissing a controversy as to some defendants, but leaving it pending as to an unserved defendant, is not appealable. Lohr v. United States, 264 F.2d 619 (5th Cir. 1959); Hardy v. Bankers Life & Casualty Co., 222 F.2d 827 (7th Cir. We do not believe that the result reached in these cases, ......