Martarano v. United States
| Decision Date | 09 July 1964 |
| Docket Number | Civ. No. 1664,1674,1657. |
| Citation | 231 F. Supp. 805 |
| Parties | Frank MARTARANO, Plaintiff, v. UNITED STATES of America, Defendant. Frank MARTARANO, Plaintiff, v. Paul Lawrence SWEENEY et al., Defendants. Eugene ATKINSON, Plaintiff, v. UNITED STATES of America and Paul L. Sweeney, Defendants. |
| Court | U.S. District Court — District of Nevada |
Boccardo, Blum, Lull, Niland, Teerlink & Bell, San Jose, Cal., William O. Bradley, Reno, Nev., for plaintiff Martarano.
Ryan & Speropulos, Weiser, Idaho, Louie Gorrono, Emmett, Idaho, David G. Parraguirre, Reno, Nev., for plaintiff Atkinson.
Goldwater, Taber & Hill, Reno, Nev., and R. W. Levy, Berkeley, Cal., for defendants.
John W. Bonner, U. S. Atty., Reno, Nev., for United States.
The three actions entitled above duly and regularly came on for consolidated trial before the Court, sitting without a jury, on July 8, 1964, at Carson City, Nevada, of the following severable issue, to wit: Was Paul Lawrence Sweeney, at the time and place of the collision alleged in the Complaints, an employee of defendant United States of America within the scope and meaning of the Federal Tort Claims Act? Plaintiff Frank Martarano was represented by his attorney, William O. Bradley; plaintiff Eugene Atkinson was represented by his attorney, David Parraguirre; defendant Paul L. Sweeney was represented by his attorney, Wayne Mortimer; and defendant United States of America was represented by Edward J. Lee, Special Assistant United States Attorney. Evidence was introduced on behalf of the respective parties, and the issue was submitted for decision.
All parties waived jury trial with respect to the severable issue above noted and stipulated to be bound by the Court's finding on the issue, subject to the right of review and without waiving any proper demands for jury trial which have been or may be made respecting other issues in the case.
The evidence establishes that in June, 1958, the Bureau of Sport Fisheries and Wildlife of the United States Department of the Interior entered into a cooperative project agreement (Ex. 1 in evidence) with the Nevada State Predatory Animal and Rodent Committee relating to the control of predatory animals and injurious rodents. The authority of the federal agency to enter into such an agreement is found in 46 Stat. 1468 (7 U.S.C. § 426) authorizing the Secretary to cooperate with States, individuals and public and private agencies, organizations and institutions in campaigns for the destruction or control of predatory or other wild animals, and in 60 Stat. 1080, as amended (16 U.S.C. § 661), authorizing the Secretary to provide assistance to and cooperate with Federal, State and public or private agencies and organizations in minimizing damages from overabundant species of wild life. The Nevada State Predatory Animal and Rodent Committee is a state agency established by state law and authorized to enter into cooperative agreements with the Fish and Wildlife Service of the Department of the Interior covering control of predatory animals and rodents. N.R.S. 567.010 et seq. The cooperative agreement of June, 1958, provides, in part, as follows:
"A program for the control of predatory animals and injurious rodents will be undertaken in the State of Nevada and all operations as provided for by this agreement shall be under the direct supervision of the Service, in order that the work conducted in Nevada may be in accordance with the latest improved practices and correlated with predator and rodent control programs carried on in adjacent areas."
On September 13, 1958, Paul L. Sweeney applied to the Nevada State Personnel Department for employment as a Mammal Control Agent. Sweeney was employed on September 16, 1958, and continued in such employment during all times pertinent to these cases. Sweeney's wages were paid by the State of Nevada, and his retirement plan and industrial compensation were provided through state agencies like other state employees. On two or three occasions, Sweeney's reimbursable expenses as an employee were paid directly from federal funds.
Throughout his employment, Sweeney's activities as a mammal control agent were supervised by federal officials out of the Elko District Office of the Fish and Wildlife Service (Bureau of Sport Fisheries and Wildlife). The job description, proficiency ratings and actions pertaining to pay increases in the records of the Nevada State Personnel Department relating to Sweeney were supplied, reviewed and approved by officials of the Bureau of Sport Fisheries and Wildlife as the "Rater", "Reviewing Officer" and "Appointing Authority". No employee or officer of the State of Nevada directed or supervised Sweeney in the performance of his work.
The Federal Tort Claims Act renders the United States liable "in the same manner and to the same extent as a private individual under like circumstances" (28 U.S.C. § 2674) for damages "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...
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