Noe v. United States, Civ. A. No. 2738.
| Decision Date | 20 December 1956 |
| Docket Number | Civ. A. No. 2738. |
| Citation | 136 F. Supp. 639 |
| Parties | Melburn Erwin NOE v. The UNITED STATES of America. |
| Court | U.S. District Court — Eastern District of Tennessee |
Jenkins & Jenkins, Knoxville, Tenn., for plaintiff.
John C. Crawford, Jr., U. S. Dist. Atty., Knoxville, Tenn., for defendant.
Defendant has moved for summary judgment and filed Exhibits "A" and "B" in support of the two separate grounds advanced as reasons why the motion should be sustained and the action dismissed. The exhibits are photostatic copies which include official transfer orders, death certificate of serviceman Widener, various other orders and reports and a line of duty investigation, all certified as true copies under the seal of the Department of the Air Force. From so much of said documents as are admissible in evidence, from the complaint and positions assumed by counsel in arguments heard on the motion, facts contained in this memorandum are found.
This is an action brought under the Federal Tort Claims Act, 28 U.S.C. § 1346, to recover damages for injuries sustained by plaintiff in a highway accident in Florida, when his automobile was struck by an automobile owned and negligently operated by James Thomas Widener, a serviceman in the United States Air Force. At the time of the accident, Widener, who was killed in the accident, was in the dual status of transfer and leave. He had received orders to transfer from his station at Miami, Florida, to the designated station at Charleston, South Carolina. The orders included provision for three days of travel time and three days of delay en route, otherwise designated as leave time. He was authorized to travel by air, by train or bus, or by use of his personally owned automobile. He chose the last named method of travel.
Widener left Miami July 14, 1953, and was due at his Charleston post on July 20, 1953. The aforementioned accident occurred on July 14, the day he left Miami.
Urged as the first ground in support of the motion is defendant's conclusion that Widener was not acting within the scope of his duties as a serviceman at the time of the accident. The second is, that if there was liability under the rule of respondeat superior defendant was released from that liability by settlement and release between plaintiff and the administrator of Widener's estate, for the reason that release of the servant who committed the tort releases the master who was liable only vicariously.
In disposing of the motion, the Court does not reach the second ground, the first, in the Court's opinion, being sufficient...
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