Santoro v. United States

• Decision Date: 22 May 1964
• Docket Number: No. 64C98.,64C98.
• Parties: Sadie Ann SANTORO, Administratrix of the Estate of Dominick Louis Santoro, Deceased, Plaintiff, v. UNITED STATES of America and Ezell Johnson, Defendants.
• Court: U.S. District Court — Northern District of Illinois

229 F. Supp. 707

Sadie Ann SANTORO, Administratrix of the Estate of Dominick Louis Santoro, Deceased, Plaintiff, v. UNITED STATES of America and Ezell Johnson, Defendants.

No. 64C98.

United States District Court N. D. Illinois, E. D.

May 22, 1964.

Gerald M. Rubin, Chicago, Ill., for plaintiff.

Edward V. Hanrahan, U. S. Atty., for defendant.

Raymond McClory, Chicago, Ill., for counter-defendant.

ROBSON, District Judge.

In this Federal Tort Claims Act suit, the United States of America moves to dismiss Ezell Johnson as a party defendant. The action arises out of an automobile accident between Dominick Louis Santoro and Ezell Johnson, the latter then acting in his capacity as a postal deliveryman for the Post Office. Plaintiff, Administratrix of the Estate of Dominick Louis Santoro, replies that defendant Johnson is a proper party who should not be dismissed.

The propriety of dismissing defendant Johnson is determined by Title 28 U.S.C. § 2679, an immunity statute which must be viewed conjunctively with the Federal Tort Claims Act, Title 28 U.S.C. § 2674.

The salient feature of § 2679 is subparagraph (b), which reads as follows:

"The remedy by suit against the United States as provided by section 1346(b) of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim." (Emphasis added.)

An examination of the legislative history behind subparagraph (b), as indicated in Senate Report 736, reveals that:

"Subsection (b) is the basic provision of the bill, for it makes the remedy provided by section 1346(b) of title 28 * * * the sole remedy for * * * death resulting from the operation of a motor vehicle by a Government employee in the scope of his employment. This would exclude suits against employees in their individual capacities on the same claims." 2 U.S.Cong. and Adm. News, 1961, p. 2787. (Emphasis added.)

The report further indicates that making the United States Government exclusively liable for employees' acts, while acting in their official capacity, eliminates the necessity of their purchasing liability insurance covering incidents within the scope of their employment.

In Gustafson, et al. v. Peck, 216 F.Supp. 370 (8th Cir. 1963), the defendant was originally sued in a state court for the negligent operation of a motor vehicle, while acting in his capacity as a Government employee. After removing the case to the District Court pursuant to § 2679, a motion to remand was filed. In denying this motion, the Court construed § 2679(b), as amended, thus:

"These amendments deal directly with the present case. They grant immunity from personal liability to Federal employees which may arise out of their negligent operation of motor vehicles while in the scope of their Federal employment. These amendments also require the United States to remove any such action to the Federal Courts which may have been started in a State Court and that the action then becomes one exclusively against the United States with the individual employee immune from liability." Id. 216 F.Supp. at 373. (Emphasis added.)

A similar problem of the relationship between § 2679 and suits against Government employees is involved in Adams v. Jackel, 220 F.Supp. 764 (2nd Cir. 1963). There, a suit filed against the operator of a Government motor vehicle was removed to the District Court. A certificate filed in the state court indicated the United States Attorney was "of the opinion" that "the defendant was acting within the scope of...