Fisher v. United States, 16404.

• Citation: 356 F.2d 706
• Decision Date: 21 February 1966
• Docket Number: No. 16404.,16404.
• Parties: Claire Irene FISHER, Administratrix of the Estate of Virgil Franklin Fisher, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

356 F.2d 706 (1966)

Claire Irene FISHER, Administratrix of the Estate of Virgil Franklin Fisher, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 16404.

United States Court of Appeals Sixth Circuit.

February 21, 1966.

Donald P. Traci, Cleveland, Ohio, for appellant, Spangenberg, Hasenflue & Shibley, Cleveland, Ohio, on the brief.

Morton Hollander, Atty., Dept. of Justice, Washington, D. C., for appellee, John W. Douglas, Asst. Atty. Gen., Michael W. Werth, Atty., Dept. of Justice, Washington, D. C., Joseph P. Kinneary, U. S. Atty., Robert A. Bell, Asst. U. S. Atty., Columbus, Ohio, on the brief.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Circuit Judge.

PER CURIAM.

Claire Irene Fisher, plaintiff-appellant, brought this action in the United States District Court for the Southern District of Ohio, Eastern Division, against the United States, under the Federal Tort Claims Act. (Sections 1346 (b),¹ 2671,² et seq., Title 28, U.S.C.) The plaintiff-appellant is the duly qualified and acting administratrix of the estate of her husband, Virgil Franklin Fisher. She brought the action for the wrongful death of her husband alleged to have been caused by the negligence of an employee of the United States. Ohio Rev. Stat. ch. 2125 (1964).

The deceased met his death as a result of injuries sustained in a collision between an automobile in which he was riding and an automobile being driven by one Albert A. Heskett. Heskett was driving a 1961 Ford Econoline truck for Walter C. Thompson who had a star route contract with the United States Post Office for the transportation of mail between Zanesville, Ohio, and Coshocton, Ohio. The truck was being driven by Heskett in the performance of Thompson's contract at the time the accident happened.

The question presented on this appeal is whether Heskett was an employee of the United States within the meaning of the Federal Tort Claims Act. On a motion for summary judgment (Rule 56, Federal Rules Civil Procedure) the district judge held that Thompson was an independent contractor and that Heskett was not an employee of the United States. He sustained the motion for summary judgment and the plaintiff-appellant appealed.

There are no disputed facts material to the issue before us and the question presented is one of law. The general rule to determine whether a relationship is that of employer and employee or independent contractor may be stated as follows:

"If the right to control the manner or means of performing the work is in the person for whom the work is performed, the relationship is that of employer and employee or master and servant; but if the control of the manner or means of performing the work is delegated to the person performing the work, the relationship is that of independent contractor." Behner v. Indus. Comm., 154 Ohio St. 433, 437, 96 N.E.2d 403, 405.

The principle is substantially the same under either Ohio or Federal law. Commercial Motor Freight v. Ebright, 143 Ohio St. 127, 135, 54 N.E.2d 297, 151 A.L.R. 1321; Bobik v. Indus. Comm., 146 Ohio St. 187, 64 N.E.2d 829; Standard Oil Co. v. Anderson, 212 U.S. 215, 221, 29 S.Ct. 252, 53 L.Ed. 480; Strangi v. United States, C.A.5, 211 F.2d 305, 307. The question of who is a federal employee for the purposes of the Tort Claims Act is governed by federal law. Courtney v. United States, 230 F.2d 112, 114, C.A. 2; Blackwell v. United States, 321 F.2d 96, 98, C.A. 5; Brucker v. United States, 338 F.2d 427, 428 (footnote 2), C.A. 9, cert. den. 381 U.S. 937, 85 S.Ct. 1769, 14 L.Ed.2d 701; Pattno v. United States, 311 F.2d 604, 605, C.A. 10, cert. den. 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed. 2d 412.

We conclude from our examination and analysis of the star route contract here in question that the relationship is that of independent contractor. Heskett was not an employee of the United States. See Smick v. United States, D.C., 181 F.Supp. 149; Thomas v. United States, D.C., 204 F.Supp. 896.

We find no merit to plaintiff-appellant's contention that the letting of this contract by the Post Office was a non-delegable duty. Pierce v. United States, D.C., 142 F.Supp. 721,³ cited by plaintiff-appellant in support of her theory of non-delegable duty is not analogous to the case at bar. This case involved the doctrine of non-delegable duty under Tennessee law. As the court said at p. 729:

"In the first instance the government was guilty of negligence in erecting and maintaining the substation in a condition hazardous to workmen."

Also, the government was in control and possession of the premises where the accident happened.

Non-delegable duty was well defined by the court at p. 734, as follows:

"As the doctrine of nondelegable duty is applied in this state it is not a rule of strict liability regardless of fault. Negligence is required, the sole effect of the

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