Prato v. HOME OWNERS'LOAN CORPORATION, 3419.

• Decision Date: 02 August 1939
• Docket Number: No. 3419.,3419.
• Citation: 106 F.2d 128
• Parties: PRATO v. HOME OWNERS' LOAN CORPORATION.
• Court: U.S. Court of Appeals — First Circuit

106 F.2d 128 (1939)

PRATO v. HOME OWNERS' LOAN CORPORATION.

No. 3419.

Circuit Court of Appeals, First Circuit.

August 2, 1939.

Albert L. Hyland, of Boston, Mass. (Albert U. Rosa, of E. Boston, Mass., and Lyne, Woodworth & Evarts, of Boston, Mass., on the brief), for appellant.

Charles W. O'Brien, of Boston, Mass. (Howard W. Cole and Brickley, Sears & Cole, all of Boston, Mass., on the brief), for appellee.

Before WILSON and MORTON, Circuit Judges, and BREWSTER, District Judge.

PER CURIAM.

The plaintiff alleges that while she was lawfully using a public way in Boston, Massachusetts, to wit, the sidewalk in front of premises owned and controlled by the defendant, she was caused to fall and sustained injuries by reason of stepping on an accumulation of snow and ice, which was caused to be thereon by reason of snow and ice accumulating on the said premises and portions thereof and thereafter melting and dripping, draining, or being discharged on to the sidewalk in front of said premises and freezing thereon, due to the negligence of the defendant, its agents or servants.

No question is raised as to the liability of the defendant unless it is immune from suit for tort, on the ground that it is an agency of the United States and partakes of its immunity for tort actions.

The statutes creating the defendant corporation vested it with the general authority to sue and be sued. So far as the language is concerned, it includes all manner of suits, with no immunity from actions of tort.

There is a conflict of decisions, without citing them all; see Federal Land Bank v. Priddy, 295 U.S. 229, 55 S.Ct. 705, 79 L.Ed. 1408; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762; United States v. Strang, 254 U.S. 491, 41 S.Ct. 165, 65 L.Ed. 368; Henson et al. v. Eichorn et al., D.C., 24 F. Supp. 842; Walker v. Home Owners' Loan Corp., D.C., 25 F.Supp. 589. Two other federal District Court cases which are directly opposed to each other are: Pennell v. Home Owners' Loan Corp., 21 F.Supp. 497, in which the District Court of Maine held that such a corporation was amenable to a tort action; and the instant case in which the District Court of Massachusetts held this corporation to be immune.

However, these cases were all decided before the decision in the case of Keifer & Keifer v. Reconstruction Finance Corporation and Regional Agricultural Credit Corporation, 306 U.S. 381, 59 S.Ct. 516, 517, 83 L.Ed. 784, hereinafter referred to as "the Regional", was handed down by the Supreme Court, which we think is decisive of this case. The Reconstruction Finance Corporation chartered under authority granted to it by Congress the Regional Agricultural Credit Corporation. While the action in the case grew out of a cattle feeding contract entered into by "the Regional", the injuries were the result of the negligence of the defendant's servants for failure to provide proper care for cattle delivered to it under the agreement. The Supreme Court, however, in this case, in an able opinion decided February 27, 1939, clearly indicates that liability for tort actions is included in the familiar description of corporate powers in corporations authorized by Congress of "to sue and be sued."

"The government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. United States v. Lee, 106 U.S. 196, 213, 221, 1 S.Ct. 240, 254, 261, 27 L.Ed. 171; Sloan Shipyards Corp. v. U. S. Fleet Corp., 258 U.S. 549, 567, 42 S.Ct. 386, 388, 66 L.Ed. 762. * * *

"To give Regional an immunity denied to more...