Jozwiak v. United States

• Decision Date: 28 June 1954
• Docket Number: Civ. No. 2851.
• Citation: 123 F. Supp. 65
• Parties: JOZWIAK et al. v. UNITED STATES.
• Court: U.S. District Court — Southern District of Ohio

123 F. Supp. 65

JOZWIAK et al. v. UNITED STATES.

Civ. No. 2851.

United States District Court, S. D. Ohio, E. D.

June 28, 1954.

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

Hugh K. Martin, U. S. Atty., Loren G. Windom, Asst. U. S. Atty., Columbus, Ohio, for defendant.

CECIL, District Judge.

This action is brought by the complaint of five plaintiffs, namely, Joseph S. Jozwiak, Mary Ida Jozwiak, Dorothy M. Jozwiak, Joseph Smolira and Nellie H. Smolira against the United States of America as defendant.

The plaintiffs seek to recover damages from the defendant by reason of injuries which each of them suffered when an automobile in which they were riding was struck by an automobile driven by one Lawrence M. Sowers, an employee of the defendant.

The action is brought under subsection (b) of Section 1346 of Title 28 U. S.C.A. This section reads in part as follows:

"the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

The case was tried and submitted to the Court upon the pleadings, the evidence and briefs of counsel.

At the conclusion of the plaintiffs' case counsel for defendant made a motion for judgment of dismissal. This motion was overruled.

At the conclusion of all of the evidence, the motion of the defendant was renewed. The Court then reserved ruling upon this motion.

The case is now before the Court upon the defendant's motion to dismiss. If that motion is overruled, the case being fully submitted, will then be decided upon the merits. The facts are as follows:

(1) In June of 1949, and for about ten years prior thereto, one Lawrence M. Sowers was employed in the Fish and Wildlife Service of the Department of Interior of the United States, and was stationed at Fort Worth, Texas.

(2) On June 9, 1949, Mr. Sowers received "Notification of Personnel Action" (plaintiffs' Exhibit 10). By this notification Mr. Sowers was advised of a promotion and transfer to Washington, D. C.

Under the heading of "Remarks" in this notification, the subject employee was given instructions, or advice, as follows:

"Allowance of travel expenses of self and transportation of immediate family and household goods, in accordance with regulations. Use of privately-owned conveyance is authorized, if desired. This transfer is in the interest of the Government and is not made primarily for your convenience or benefit, or at your request."

(3) Under date of June 23, 1949, Mr. Sowers received "Letter of Travel Instructions" which was offered in evidence and marked "plaintiffs' Exhibit 11". By this letter, Mr. Sowers was directed to proceed on or about July 5, 1949, from Fort Worth, Texas, to Washington, D. C., for the purpose of transferring his official station from Fort Worth to Washington. It was further stated in this letter that at the conclusion of his trip about July 8, 1940(9) he should report to Chief of the Branch of Game Fish and Hatcheries and that his official station was to be Washington, D. C., effective upon arrival. He was to be allowed $6.00 per diem in lieu of subsistence. The letter also contained the following special features:

"Transportation of the members of your immediate family and of your household goods and personal effects is authorized by Government expense in accordance with applicable regulations. The above travel may be performed by privately owned automobile if desired, with reimbursement at a rate not to exceed $.07 per mile. Since the advantage to the Government covering such use has not been determined in advance by the Director, a showing of such advantage must accompany the claim for reimbursement.

"You are authorized to incur in strict conformity with law, Standardized Government Travel Regulations, orders of the Secretary and decisions of the Comptroller General such actual and necessary expenses as may be essential to the duty herein directed."

(4) Mr. Sowers and his wife began making preparations to move on Tuesday, July 5, 1949. These arrangements were completed at about three o'clock in the afternoon of Saturday, July 9, 1949. At this time their household effects had been loaded on a moving van for transportation to Washington, D. C.

(5) On Monday morning, July 11, 1949, at 7:30 a. m., Mr. Sowers, his wife and three months old child left Fort Worth, Texas, in Mr. Sowers' own car en route to Washington, D. C.

(6) In the interim, between Saturday afternoon and Monday morning, Mr. Sowers and his family stayed with friends in Fort Worth and attended their own church on Sunday, July 10.

(7) The Sowers elected to travel by their own car in order that they would have it with them at their destination as a means of transportation.

(8) From Fort Worth, the Sowers went to Dallas, Texas, where they stopped for about an hour and a half to see a radio program.

(9) From Dallas, the Sowers traveled over Route 67 to Texarkana and from there to Arkadelphia, where they stopped for the night of Monday, July 11.

(10) The Sowers stopped in Arkadelphia for the reason that Mr. Sowers had an uncle who was President of a college at that place. They attempted to contact this uncle, but were unsuccessful.

(11) From Arkadelphia, the Sowers went to Memphis, Tennessee, where they spent the night of July 12 with Mrs. Sowers' brother.

(12) On Wednesday morning, July 13, the Sowers departed from Memphis to Nashville, Tennessee.

(13) At Nashville, Tennessee, the Sowers departed from what would have been the most direct route to Washington, D. C., and went to Louisville, Kentucky. In Louisville, Kentucky, Mr. Sowers stopped for gas and called an old army buddy, to whom he talked for thirty to forty minutes.

(14) From Louisville, the Sowers went through Cincinnati to Dayton, Ohio, where they arrived about midnight of Wednesday, July 13.

(15) Mr. Sowers had a brother living in Dayton, with whom he and his family stayed until Sunday morning, July 17. This stop in Dayton had been planned before the Sowers left Fort Worth, Texas.

(16) At the time of arrival in Dayton, Mr. Sowers' brother was in California on a business trip and did not return to Dayton until Friday night, July 15.

(17) The Sowers left Dayton at about 10:30 a. m., and proceeded East through Columbus.

(18) When the Sowers car arrived at a point 1.9 miles East of the corporate limits of St. Clairsville, Belmont County, Ohio, an accident occurred in which the car driven by Mr. Sowers swerved from the east-bound lane of traffic across U.S. 40, into the west-bound lane of traffic and collided with a car driven by Joe Jozwiak, one of the plaintiffs herein.

(19) Mr. Sowers and his three months old daughter were killed as a result of this collision. Mrs. Sowers was knocked unconscious and also injured, but recovered.

(20) Joe Jozwiak and the other four occupants of the car, all of whom are the plaintiffs herein, were injured in the collision.

(21) Corporal Miller, of the Ohio Highway Patrol, was following the car being driven by Mr. Sowers and was an eye-witness to the accident.

(22) Corporal Miller did not exactly see how the accident happened, but believed that the right front and rear wheels of Mr. Sowers' car had gone into a rut on the right side of the road and while in this rut, had come upon a concrete sewer basin cover, which threw the car sharply to the left and across the road to the plaintiffs' car.

(23) The accident occurred at 6:15 p. m., and the inference may be drawn that Mr. Sowers was turning into the driveway of Tracy's restaurant, which began at the point where Mr. Sowers struck the sewer basin.

(24) The surface of the berm of the road was about six inches lower than the surface of the sewer basin cover.

The Court concludes from the facts herein stated that Lawrence M. Sowers was negligent in driving his car at the time and place of the accident and that such negligence was the proximate cause of the injuries sustained by the plaintiffs.

The question for the Court to determine in this case is whether or not Mr. Sowers was "acting within the scope of his office or employment" at the time the accident happened.

Subsection (b) of Section 1346, Title 28 U.S.C.A., provides that "the law of the place where the act or omission occurred" is applicable. This has been construed by the Fourth Circuit Court of Appeals to mean that the Federal Law applies as to the creation of the relationship and that the State Law applies as to the liability.

"We look to the federal law and decisions to determine whether or not the person who inflicted the injury was an ...