Jozwiak v. United States

• Decision Date: 17 October 1952
• Docket Number: No. 11480.,11480.
• Parties: Joseph S. JOZWIAK et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

199 F.2d 369 (1952)

Joseph S. JOZWIAK et al., Appellants, v. UNITED STATES of America, Appellee.

No. 11480.

United States Court of Appeals Sixth Circuit.

October 17, 1952.

D. Curtis Reed, Columbus, Ohio and Waddell & Furbee, St. Clairsville, Ohio, for appellants.

Ray J. O'Donnell and Loren G. Windom, Columbus, Ohio, for appellee.

Before HICKS, ALLEN and MARTIN, Circuit Judges.

PER CURIAM.

This appeal from a judgment sustaining the motion of appellee for summary judgment and dismissing appellants' complaint has been heard and considered upon the transcript of record and upon the briefs and oral arguments of the contending parties;

And it appearing therefrom that, while the correct ultimate decision in the justiciable controversy may be that the cause of action must be dismissed, this court is of opinion that the District Court committed error in entering summary judgment for the appellee, United States (defendant below), inasmuch as the complaint and the three exhibits of record, consisting of the so-called "Notification of Personnel Action" issued to Lawrence M. Sowers by the United States Department of the Interior, Fish and Wildlife Service, authorizing the use of the employee's privately owned conveyance, if desired, and the letter directed to the employee, Sowers, by W. R. Dillon, Acting Director, and the affidavit of Mrs. Lawrence M. Sowers, do not, taken together, constitute an adequate record upon which summary judgment should have been entered, it being the opinion of this court that proof revealing fully all the relevant circumstances of the case should be received before it could be properly determined whether the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, is appropriately applicable to the circumstances of this action;

The cause is remanded to the District Court for further proceedings in conformity with this order. See Estepp, Adm'r v. Norfolk & Western Ry. Company, 6 Cir., 1952, 192 F.2d 889.