Slagle v. United States, 15528.

• Citation: 228 F.2d 673
• Decision Date: 17 January 1956
• Docket Number: No. 15528.,15528.
• Parties: Fay SLAGLE, a widow, etc. and The Service Mutual Insurance Company of Texas, Appellants, v. UNITED STATES of America and Texas Air National Guard, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 673 (1956)

Fay SLAGLE, a widow, etc. and The Service Mutual Insurance Company of Texas, Appellants, v. UNITED STATES of America and Texas Air National Guard, Appellees.

No. 15528.

United States Court of Appeals Fifth Circuit.

January 17, 1956.

COPYRIGHT MATERIAL OMITTED

Edward Southerland, Bonham, Tex., C. F. Schweppe, San Antonio, Tex., Cunningham, Cole & Southerland, Bonham, Tex., Schweppe, Schweppe & Allison, San Antonio, Tex., for appellants.

John C. Ford, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee U. S.

Billy E. Lee, Asst. Atty. Gen. of Texas, John Ben Shepperd, Atty. Gen., of Texas, Sam C. Ratliff, Asst. Atty. Gen., for appellee Texas Air National Guard.

Before HOLMES, RIVES and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

Fay Slagle, a mental incompetent through her duly appointed guardian, and another appeal from an order of the District Court dismissing the complaint on motion of the defendants, the United States and the Texas Air National Guard. The parties have conceded that the Texas Air National Guard should be eliminated and that the order as to it should be affirmed. The motion of the United States was under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A., based upon the contention that the complaint failed to state a claim upon which relief could be granted.¹ The motion was accompanied by affidavits while the plaintiffs produced no affidavits, asserting their inability to do so and asking further time for that purpose.

William Slagle, husband of appellant Fay Slagle, was an employee of Lone Star Boat Manufacturing Company in Dallas County, Texas. On February 2, 1954 he was fatally injured when a jet plane from Hensley Field, Grand Prairie, Texas, crashed into the building in which he was working. The widow, along with The Service Mutual Insurance Company of Texas, insurersubrogee of the Boat Company under Workmen's Compensation Laws of Texas, Vernon's Ann.Civ.St. art. 8306 et seq., brought action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346, against the United States of America and Texas Air National Guard. The complaint charged that the plane belonged to the defendants, was maintained, controlled and operated by the defendants; and that the defendants, acting through their servants and agents, were negligent in the maintenance and operation of the plane, which proximately caused the fatal injury sued on.

Appellee, the United States, moved to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted. The motion asserted that the pilot of the jet plane was a member of the Texas Air National Guard acting under the exclusive command of that agency of the State of Texas and was not an officer or employee of the United States. Attached to the motion were affidavits by the commanding officer of the United States Air Force installation at Hensley Field and by the pilot of the plane which crashed; in addition, were attached certified copies of a portion of the special order from the Adjutant General of Texas appointing the pilot as an officer in the Texas Air National Guard, and the flight order dated February 2, 1954 from the operations officer under whose supervision the flight was alleged to have been made.

These affidavits disclosed in general terms that the Texas Air National Guard utilized and controlled a portion of Hensely Field, a Government facility, under a right of entry; that the Texas Air National Guard was administered, armed, uniformed, maintained and equipped by and at the expense of the State of Texas and not by the United States; and that the Texas Air National Guard was not under the control of the commanding officer, an employee of the United States. The affidavit of the pilot set out that he was an officer in the Texas Air National Guard, received his orders from the governor of Texas and was under such orders on February 2, 1954, at the time the jet plane he was flying crashed into the building in which Slagle was killed.

Appellants responded to this motion to dismiss by a pleading, reiterating substantially what had been charged in the complaint, — that the pilot and the others whose negligence was averred were the agents, employees, officers and servants of the United States. This response stated also that affidavits controverting those filed on behalf of the Government could not then be attached since the facts were peculiarly within the knowledge of the Government, were obtainable only by legal process and that plaintiffs did not have sufficient time to avail themselves of these processes and meet the motion to dismiss on the date set for its argument.

The complaint was filed and served November 1, 1954, which gave the United States sixty days within which to plead. Rule 12(a), F.R.C.P. Instead of taking the full sixty days, the Government filed and served its motion to dismiss on December 6th, setting it down for hearing on December 20th. On December 9th, the Court was advised by appellants that it would not be possible for them to take the steps necessary to get ready for trial on that date, assigning the reasons above mentioned. The Court below declined to grant the additional time, but proceeded to hear and sustain the motion, dismissing with prejudice on December 20th, fourteen days after it was served.

Appellants argue that the Court committed error in sustaining the motion to dismiss on the record then before it, and also erred in sustaining the motion in the face of their request for additional time to procure affidavits or other testimony. We agree. The District Court apparently did not elect to consider the Government's motion as one for summary judgment, but proceeded to dispose of it under Rule 12 (b) (6) as presenting solely the question whether the complaint failed "to state a claim upon which relief can be granted". This attitude and action reduced the issue to a question of law such as would have been raised by demurrer under the old practice.

The complaint stated a simple and indubitable case under the Federal Tort Claims Act² and the motion challenging those allegations is without a vestige of merit. But it is clear that the Government did not intend that the motion should be decided on the complaint alone, but on the complaint and the affidavits attached to its motion to dismiss. But that is not permissible unless it be made so by invoking the last sentence of Rule 12(b).³ Neither the Government nor the Court below seemed disposed to treat the motion as coming within the quoted provisions of that Rule. What the Court of Appeals of the District of Columbia said when faced by a similar situation⁴ condemns the order of dismissal:

"The defendants moved to dismiss the action on the ground that the complaint failed to state a claim upon which relief could be granted, and supported the motion with an affidavit of the president of the Union. * * * Such an affidavit cannot be treated, for purposes of the motion, as proof contradictory to well-pleaded facts in the complaint. There is a great difference between discovering whether there be an issue of fact and deciding such an issue. The affidavit can be used for the former purpose but not for the latter. Thus, if a fact be averred in the complaint and contradicted in the affidavit, the latter version cannot be accepted by the court for the purposes of a motion to dismiss. * * *

"* * * On the record as it now stands, the only questions are whether the complaint and the affidavit show that there are genuine issues of material facts and whether the complaint, if proved as averred, states a claim for which relief can be granted."

We will assume, in this portion of the opinion, that the Court below followed the procedure quoted above from Rule 12(b)⁵ and treated the motion as if it were filed under Rule 56 governing summary judgments. The Government does not fare much better under this Rule, for several reasons.⁶ It is clear that the Government's affidavits, taken together with the complaint, show the presence, rather than the absence, of genuine issues as to material facts, e. g. whether the Government did in fact own, maintain, control or operate the plane causing the damage. The language of Chappell v. Goltsman, supra, controls, that being a case where we treated a motion to dismiss under Rule 12(b) (6) as if it were under Rule 56:

"But disputed issues of fact cannot be resolved by affidavits, nor may affidavits be treated for purposes of the motion for summary judgment as proof contrary to well pleaded facts in the complaint. * * * Summary judgment is authorized `only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try\'. * * * It is no part of the court\'s duty to decide factual issues but only to determine whether there are any such issues to be tried." 186 F.2d 218. Citing cases.⁷

Moreover, the affidavits do not conform to the requirements of Rule 56(e)⁸ and do...