Mandelbaum v. United States
| Decision Date | 19 April 1955 |
| Docket Number | Civ. No. 12689. |
| Citation | 131 F. Supp. 187 |
| Parties | Morris MANDELBAUM, Plaintiff, v. UNITED STATES of America and Frank Savage, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Jacob M. Offenhender, Brooklyn, N. Y., Robert G. Burkhart, Jr., New York City, of counsel, for plaintiff.
Leonard P. Moore, U. S. Atty., Eastern Dist. of N. Y., Brooklyn, N. Y., Joseph F. Soviero, Jr., Asst. U. S. Atty., Brooklyn, N. Y., of counsel, for defendant.
The plaintiff sued the defendant, United States of America, under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671, to recover damages for personal injuries, alleged to have been sustained by him. In the amended complaint, the plaintiff alleged that on February 11, 1952, at about 5:58 P.M., while driving his horse-drawn vehicle on Flushing Avenue, between Washington Avenue and Hall Street in Brooklyn, New York, the same was struck by an Army truck, driven by one Frank Savage, a corporal in the military service, causing those injuries.
The main issue litigated at the trial was whether the soldier, Frank Savage, was acting within the scope of his employment or in the line of duty at the time of the accident.
Section 1346(b) of the said Act grants jurisdiction to District Courts of actions for damages for personal injuries "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." Section 2671 of the said Act defines acting within the scope of employment as "acting in line of duty."
The burden of proof was upon the plaintiff to establish that the soldier was acting within the line of duty at the time. Field v. United States, D.C., 107 F.Supp. 401; United States v. Inmon, 5 Cir., 205 F.2d 681; Hubsch v. United States, 5 Cir., 174 F.2d 7. Mere proof of ownership of the truck by the Government does not constitute a presumption or proof that the soldier was so acting. Curtis v. United States, D.C., 117 F.Supp. 912. The Government is liable under the doctrine of respondeat superior to third persons for the acts of its employees under the same circumstances, and no other, as those under which private persons would be liable for the acts of their employees according to the law of the place where the injury occurred. United States v. Campbell, 5 Cir., 172 F. 2d 500.
The facts not in dispute are that on February 11, 1952, Frank Savage was a corporal in the United States Army and was based at Fort Hamilton, Brooklyn, New York; that he had been based there for approximately three months and had never been stationed in the Metropolitan area of New York prior thereto; that on the said date he was directed by a superior to take out a truck, owned by the defendant, United States of America, and proceed to Fort Tilden in Queens County, New York, a distance of about five miles, to aid in the taking of inventory; that both Forts are located on the southerly shore line of the City of New York; that this was the first time he had driven this route, although during the preceding week he had traveled to that place in a passenger car on a road called the "Belt Parkway", from which trucks are barred; that he received directions, lost his way and after inquiry from a policeman, reached Fort Tilden; that between about 3 P.M. and 4 P.M. on that date, he left Fort Tilden on the return trip; that he knew that after crossing the Marine Bridge at the foot of Flatbush Avenue he was required to make a left turn into Avenue U, but missed it; that several hours later he crashed into an automobile, parked, at or near Edwards Street and Park Avenue, Brooklyn; that he fled the scene of the accident and shortly thereafter he was involved in a second accident on Flushing Avenue, between Washington Avenue and Hall Street, the occurrence in which the plaintiff was injured.
Practically all of the evidence of what transpired between the time that Savage left Fort Tilden on the return trip to his base at Fort Hamilton and the collision between the Army truck and plaintiff's vehicle was adduced from the plaintiff's witness, Frank Savage. His recital is most vague and unconvincing. He stated that he left Fort Tilden at 3 P.M. and yet in his examination before trial, he fixed the time of his departure at 4 P.M. The accident occurred at about 6 P.M. His explanation of his movements during those two hours or more is not clear. He stated that he did not take the left turn at Avenue U, but proceeded along Flatbush Avenue, thence...
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Cook v. United States
...to the scope of his employment. The law as applied in Rosa v. United States, 119 F.Supp. 623 (D. Hawaii 1954) and Mandelbaum v. United States, 131 F.Supp. 187 (E.D.N.Y.1955), was proper under the facts in those cases. For example, in Rosa, the accident occurred while the serviceman was clea......
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...Friedman v. United States, 139 F. Supp. 600, 602 (N.D. Ill. 1956) (internal quotation marks omitted) (citing Mandelbaum v. United States, 131 F. Supp. 187, 188 (E.D.N.Y. 1955), rev'd on other grounds, 251 F.2d 748 (2d Cir. 1958)). Instead, under the FTCA, federal district courts look to the......
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