Cromelin v. United States, 12845.
| Decision Date | 28 October 1949 |
| Docket Number | No. 12845.,12845. |
| Citation | 177 F.2d 275 |
| Parties | CROMELIN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul L. Cromelin, in pro. per.
Wm. T. Morton, Asst. U. S. Atty., Augusta, Ga., J. Saxton Daniel, U. S. Atty., Savannah, Ga., for appellee.
Before HUTCHESON, McCORD, and SIBLEY, Circuit Judges.
On November 8, 1948, appellant Cromelin filed in the district court his complaint against the United States, expressly under the Federal Tort Claims Act of 1946, 60 Stat. p. 842, 28 U.S.C.A. §§ 1346, 2671 et seq., for personal damages due to acts of misfeasance, malfeasance, and nonfeasance committed during October and November, 1947, by two agents and employees of the United States, to-wit, Frank M. Scarlett, District Judge for the Southern District of Georgia, and Otis M. Benton, as Trustee of Cromelin's Air Activities, Inc., in reorganization under the Bankruptcy Act, 11 U. S.C.A. § 501 et seq., in said court; each of said agents and employees acting within the scope of his office and employment. The United States moved to dismiss for want of jurisdiction in that the claim was not one covered by the Tort Claims Act and limitation fixed by the Act; that the judge and the trustee in bankruptcy were not employees of the United States within the meaning of the act; that the claim falls within the exceptions named in the Act, no exception being specified; and that the judge is exempt from civil liability for his judicial acts, and the United States is not subject to liability for such acts nor for the acts of the trustee. Another district judge was designated to hear the case, who sustained the motion to dismiss, and this appeal was taken.
As to what happened in the proceedings in the reorganization case of Cromelin Air Activities, Inc., we are confined to the allegations of the complaint now before us. They are that the corporation was mostly owned by Cromelin and that he had agreed to buy out the minority stock of $7000 value and had paid $1000 on the purchase. A large corporate creditor was embarrassing the corporation though it was solvent, and Cromelin, as president, filed in its behalf a petition for reorganization in bankruptcy under Chapter 10 of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., which was approved by Judge Scarlett and ordered filed. Benton was appointed trustee. Benton, without consulting the creditors, except the creditor who was embarrassing the corporation, in secret prepared a report recommending that the airplanes, being the income producing property of the corporation, be at once sold; and he discharged without cause Cromelin, after hiring him to conduct the business, falsely reporting that Cromelin had resigned; refused to pay Cromelin money belonging to him; made false statements in his report to prejudice the judge against the possibility of reorganization; and neglected to operate the business; refused to operate the business; made a second false report, without consulting interested parties; directed to the destruction of the corporation and solely in the...
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