Lohr v. United States, 17468.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation264 F.2d 619
Docket NumberNo. 17468.,17468.
PartiesCarmen M. LOHR, Appellant, v. UNITED STATES of America et al., Appellees.
Decision Date16 April 1959

Robert M. Brake, Benjamin W. Turner, Turner, Hendrick, Fascell & Brake, Coral Gables, Fla., for appellant.

Howard E. Shapiro, Morton Hollander, Attys. Dept. of Justice, Washington, D. C., Robert W. Rust, Asst. U. S. Atty., Miami, Fla., George Cochran Doub, Asst. Atty. Gen., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellees.

Before RIVES and TUTTLE, Circuit Judges, and SIMPSON, District Judge.

PER CURIAM.

This suit was filed on June 24, 1958, by Carmen M. Lohr against several defendants — the United States of America, the Civil Aeronautics Administration, an agency of the United States of America; Riddle Airlines, Inc., a Florida Corporation; Sandy & Company; and Hector Alexander — to recover damages for the death of plaintiff's husband, a commercial airline pilot who was killed in the crash of a C-46 type aircraft operated by Riddle Airlines near Hollywood, South Carolina on December 17, 1955.

On August 12, 1958, the district court entered an order dismissing with prejudice the second amended complaint as to the defendant United States of America for failing "to show a duty owing the plaintiff by the United States of America, or the Civil Aeronautics Administration for which a cause of action would lie under the Federal Torts Claims Act." On August 25, 1958, this appeal was taken from that order. After the filing of the Notice of Appeal, a motion for summary judgment was granted for Riddle Airlines, Inc. on November 12, 1958, and plaintiff was allowed a voluntary non-suit as to the defendants Sandy & Company and Hector Alexander on December 9, 1958, neither of whom had been served with process.

On December 5, 1958, the appellee, United States of America, filed in this Court a motion to dismiss the appeal on the ground that "the order dismissing as to the United States is interlocutory only and not a final decision under 28 U. S.C.A. § 1291, since the suit is still pending in the district court against defendants Sandy & Company, and Hector Alexander, who have not yet been served." This motion further alleged that:

"Because the case involves a single claim asserted against multiple defendants, it must `be governed by the line of cases which have held that an appeal cannot be taken from the lower court\'s order dismissing one or several defendants while there remains a controversy as to the other defendants on the same claim\'. Reagan v. Traders and General Insurance Co. 5 Cir., 255 F.2d 845, 847. See also, United States v. Woodard 5 Cir., 257 F.2d 805; Meadows v. Greyhound Corp. 5 Cir., 235 F.2d 233. This rule also applies to parties defendant who have not been served. They are still parties to the lawsuit and service may still be had on some or all of them. Hardy v. Bankers Life & Casualty Co. 7 Cir., 222 F.2d 827, 828."

The motion to dismiss the appeal is well taken since this Court is bound by the authorities cited.

Appellant in oral argument, however, insists that the subsequent non-suit taken as to the defendants Sandy & Company and Hector Alexander on ...

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7 cases
  • Federal Sav. & Loan Ins. Corp. v. Tullos-Pierremont, TULLOS-PIERREMON
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 28, 1990
    ...but urges that Sider, decided October 17, 1988, should not be applied retroactively, and that our earlier decision in Lohr v. United States, 264 F.2d 619 (5th Cir.), cert. denied, 361 U.S. 814, 80 S.Ct. 51, 4 L.Ed.2d 61 (1959), should be applied instead. Agreeing with Gallagher, we conclude......
  • Gauvreau v. United States Pictures, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 4, 1959
    ...1012; Lopinski v. Hertz Drive-Ur-Self Systems, 2 Cir., 194 F.2d 422, 424; United States v. Woodard, 5 Cir., 257 F.2d 805; Lohr v. United States, 5 Cir., 264 F.2d 619; and Luria Bros. & Co. v. Rosenfeld, 9 Cir., 244 F.2d 192, 194. Cases quashing service against a single defendant and thus te......
  • Sider v. Valley Line, 88-3305
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 17, 1988
    ...of Rule 54(b). In a footnote, the Insinga court stated: We acknowledge that a decision of the former Fifth Circuit, Lohr v. United States, 264 F.2d 619 (5th Cir.1959), might appear to dictate a different result. Lohr involved a single claim against multiple defendants, two of whom were neve......
  • Kolc v. Maratta, 73-26-A
    • United States
    • United States State Supreme Court of Rhode Island
    • May 9, 1974
    ......163] defendant, is not appealable. Lohr v. United States, 264 F.2d 619 (5th Cir. 1959); Hardy v. Bankers Life & ......
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