Levin v. Taylor, 24889

• Decision Date: 19 May 1972
• Docket Number: 24890.,No. 24889,24889
• Citation: 464 F.2d 770
• Parties: Vivian LEVIN v. F. Stuart TAYLOR, Jr., Appellant. Sarah Jane TEIFER v. F. Stuart TAYLOR, Jr., Appellant, Vivian Levin.
• Court: U.S. Court of Appeals — District of Columbia Circuit

464 F.2d 770 (1972)

Vivian LEVIN v. F. Stuart TAYLOR, Jr., Appellant.

Sarah Jane TEIFER v. F. Stuart TAYLOR, Jr., Appellant, Vivian Levin.

Nos. 24889, 24890.

United States Court of Appeals, District of Columbia Circuit.

Argued March 1, 1972.

Decided May 19, 1972.

Rehearing Denied June 14, 1972.

Mr. Wade J. Gallagher, with whom Messrs. Richard W. Galiher, William H. Clarke, Frank J. Martell and William J. Donnelly, Jr., Washington, D. C., were on the brief, for appellant.

Mr. Darryl L. Wyland, Washington, D. C., for appellees.

Mr. William E. O'Neill, Jr., Washington, D. C., entered an appearance for appellee Sarah Jane Teifer in No. 24890.

Before McGOWAN and ROBB, Circuit Judges, and JAMES F. GORDON,^* Chief Judge, U. S. District Court for the Western District of Kentucky.

JAMES F. GORDON, Chief Judge:

On January 15, 1965, Appellees Vivian Levin and Sarah Jean Teifer, owner-operator and passenger, respectively, were involved in an automobile collision with a vehicle driven by Appellant F. Stuart Taylor, Jr., then and now an employee of the United States government. Separate personal injury actions by the Appellees against Appellant Taylor were subsequently filed.

This matter now reaches us as a consolidated Interlocutory Appeal¹ from an order of the District Court denying the motion of the United States that it be substituted as the party defendant, in lieu of Appellant Taylor, pursuant to 28 U.S.C. § 2679(b) which reads as follows:

The remedy by suit against the United States as provided by section 1346(b) of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

The District Judge, correctly understanding that the government's motion did not achieve automatic substitution of the United States as the party defendant, set the matter for evidentiary hearing to ascertain the facts relative to Taylor's acting within the "scope of his employment" at the time of the accident. Appellees erroneously contended the issue of "scope of employment" was a jury issue and the trial Judge properly overruled that assertion and proceeded to proof for the resolution of such issue himself as a matter of law. Jones v. Polishuk, 252 F.Supp. 752 (D. C.Tenn.).

The evidence adduced upon hearing may be fairly summed up as reflecting that at the time in question Appellant Taylor, as a General Services Administration building's manager, was operationally responsible for certain government buildings. That on the morning of January 15, 1965, Taylor received an emergency call advising him of boiler difficulties in one of his responsibility buildings located some ten (10) blocks distant from his office. Without summoning government transportation, which was available to him upon request if not then...