Hubsch v. United States, 12501
| Decision Date | 17 May 1949 |
| Docket Number | 12502.,No. 12501,12501 |
| Parties | HUBSCH v. UNITED STATES. SCHWEITZER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hylan H. Kout, of Miami Beach, Fla., for appellants.
Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Ernest L. Duhaime, Asst. U. S. Atty., of Miami, Fla., for appellee.
Before SIBLEY, McCORD, and WALLER, Circuit Judges.
The Plaintiffs in these two consolidated cases, brought under the Federal Tort Claims Act, were riding in an automobile that came into collision with a jeep belonging to the United States Army and driven by an Army lieutenant. The Court below found that although the driver of the Government's jeep was guilty of negligence proximately causing the injuries to Plaintiffs, nevertheless, such driver was not acting within the scope of his office or employment at the time of the injuries.
The evidence relied on by the Court was substantial within the contemplation of Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A., and, if competent, the finding of the Court that the driver of the jeep was not engaged in and about the business of the Government at the time of the injury was not clearly erroneous and would not be disturbed. The evidence relied on to support such finding was the testimony of a Claims Officer of the United States Army, who investigated the accident, and documentary evidence attached to his report, including, among other things, a written statement by the driver of the jeep in question. The lower Court made the investigator the Court's own witness. His report was not put in evidence by either the Plaintiffs or the Defendant but by the Court of its own motion. The testimony of the Claims Officer as to the mission, or business, of the driver of the jeep at the time of the accident is based entirely on hearsay evidence, that is, upon statements made by the driver to such Claims Officer, and was incompetent. It denied the parties all right of cross examination of the maker of such statement. Statements made by the lieutenant, or by the Claims Officer, or otherwise in the report, could not be used as admissions against the interest of the Government in the absence of a showing that such officers had authority to make such admissions on the part of the United States and against its interest and in the absence of a showing that such statements were a part of the res gestae. The report, as well as the testimony of Mr. Krystow, the Claims Officer, dealing with statements made by the driver of the jeep, was incompetent and could not be used as the basis upon which to predicate the finding that the driver of the jeep was not acting within the scope of his office or employment or acting in line of duty within the Federal Tort Claims Act, 28 U.S. C.A. § 931 et seq. now §§ 1346, 2671 et seq..
There is, however, competent evidence to show that the jeep was the property of the United States and that it had been temporarily assigned to the lieutenant who was driving it when the collision occurred. This lieutenant was in command of a detail of some six soldiers at Key Largo, 60 miles from Miami Beach, where the collision occurred. The jeep regularly assigned to the lieutenant had been left at the Miami Air Depot for repairs and the jeep in question issued to him for use in the meanwhile. If the statement of the lieutenant to the Claims Officer, attached to the report above mentioned, were receivable in evidence, it would have shown that the lieutenant drove the jeep from Key Largo to the Miami Air Depot on Saturday afternoon, July 13, 1946, to exchange it for the jeep that he had theretofore left for repairs; that, it being Saturday afternoon, he was unable to return the jeep and to receive the one he had left.
Thereafter he proceeded in the jeep to Miami Beach where he spent the night, and, after having consumed considerable alcohol, was, on Sunday morning, going to breakfast when the accident occurred; that he had intended to stay over until Monday morning and thereupon go to the Air Depot and obtain the repaired jeep, regularly assigned to the use of his detail. As above stated, if this evidence had been competent, there would be substantial support for the Judge's finding that the lieutenant was not in and about the business of the Government of the United States at the time of the accident. But since this evidence was hearsay and not receivable, there is no evidence whatsoever as to whether or not the lieutenant was in and about the business of his office and employment or in the line of duty for the Government at the time of the accident within the intent and purpose of the Federal Tort Claims Act as construed by us in United States v. Campbell, 5 Cir., 172 F.2d 500. In that case we held that whether or not the service man was acting in the...
To continue reading
Request your trial
-
Ray v. United States
...precision to measure and limit the liability of the Government, under the doctrine of respondeat superior * * *." See also Hubsch v. United States, 5 Cir., 174 F.2d 7, and Goodwill Industries of El Paso v. United States, 5 Cir., 218 F.2d 270. Appellant rejects this contention and asserts th......
-
Fed. Deposit Ins. Corp., v. Meyer
...the scope of his authority (the fifth element of § 1346(b) mentioned above). Id., at 441, 70 S.Ct., at 226. See also Hubsch v. United States, 174 F.2d 7 (CA5 1949). Our holding in the case recognized that a claim does not lose its cognizability simply because there has been a failure of pro......
-
Lowry v. U.S., Civil Action No. 91-11233-MLW.
...193 F.2d 631. This Court has said that the Act, as an immunity statute, was subject to the strict construction rule. Hubsch v. United States, 5 Cir., 1949, 174 F.2d 7, remanded 338 U.S. 440, 70 S.Ct. 225, 94 L.Ed. 244, dismissed on motion of petitioner 340 U.S. 804, 71 S.Ct. 35, 95 L.Ed. 59......
-
United States v. Fotopulos
...Chicago, R. I. & P. Ry. Co., 10 Cir., 1948, 171 F.2d 377, 379-380; Wasserman v. Perugini, 2 Cir., 1949, 173 F.2d 305; Hubsch v. United States, 5 Cir., 1949, 174 F.2d 7, 8; United States v. Uarte, 9 Cir., 1949, 175 F.2d 110. This requires us to give due weight not only to conclusions drawn b......