264 F.2d 619 (5th Cir. 1959), 17468, Lohr v. United States

Docket Nº:17468.
Citation:264 F.2d 619
Party Name:Carmen M. LOHR, Appellant, v. UNITED STATES of America et al., Appellees.
Case Date:March 20, 1959
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 619

264 F.2d 619 (5th Cir. 1959)

Carmen M. LOHR, Appellant,


UNITED STATES of America et al., Appellees.

No. 17468.

United States Court of Appeals, Fifth Circuit.

March 20, 1959

Rehearing Denied April 16, 1959.

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.

Page 620

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, bye 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 of 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:

'Because the case involves a single claim asserted against multiple...

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