Thomas v. United States

• Decision Date: 19 February 1962
• Docket Number: Civ. No. 3134.
• Citation: 204 F. Supp. 896
• Court: U.S. District Court — District of Vermont
• Parties: Ruth B. THOMAS v. UNITED STATES of America.

204 F. Supp. 896

Ruth B. THOMAS v. UNITED STATES of America.

Civ. No. 3134.

United States District Court D. Vermont.

February 19, 1962.

Gannett, Oakes & Weber, Brattleboro, Vt., for plaintiff.

Joseph F. Radigan, U. S. Atty., Rutland, Vt., John H. Carnahan, Asst. U. S. Atty., Rutland, Vt., for defendant.

GIBSON, District Judge.

This is an action brought under the Federal Tort Claims Act for recovery of damages arising from a collision of plaintiff's automobile and an automobile operated by a star route mail carrier while delivering United States mail in accordance with her star route contract. The accident occurred on November 15, 1960. The Government contends that the carrier, Frieda Gibbs, at the time of the accident, was not an employee or servant of the Government. The Government contends that Mrs. Gibbs was an independent contractor with the Government under the star route contract. For these reasons, the defendant has moved for summary judgment on the issue of liability.

A summary judgment on the question of liability alone is made possible by Rule 56(c), F.R.Civ.P., 28 U.S. C.A. It can be granted only where facts set forth in detail in affidavits, depositions and admissions on record show that there are no genuine issues of fact to be tried, and where there is only a question of law as to whether the moving party is entitled to judgment. Burley v. Elgin, J. & E. Ry. Co., 140 F.2d 488 (C.C.A.Ill., 1944), affirmed 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945); Dale Hilton, Inc. v. Triangle Publications, Inc., 27 F.R.D. 468 (D.C.N.Y., 1961). Here there is no disputed question of fact.

28 U.S.C. § 1346(b) provides this Court with jurisdiction of civil actions on claims against the United States for injury of the person or of property caused by the negligent or wrongful act of any employee of the Government while acting within the scope of his employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act occurred. This statute presents two questions in the case at hand. Was Frieda Gibbs an employee of the Government, or was she an independent contractor? If she were an employee, would a private person be liable under the law of Vermont in the circumstances presented in this action?

Mrs. Gibbs obtained her star route contract by competitive bidding. The contract was signed on June 5, 1957, to be in effect for a term of four years. The Government had no choice in selecting the person with whom it would contract, as compliance with the statute requires the contract to be made with the lowest responsible bidder.

Whether or not Frieda Gibbs was an employee of the United States Government within the meaning of 28 U.S. C. § 1346(b) as she performed this contract is a federal question based upon federal statutory interpretation. Courtney v. United States, 230 F.2d 112, 57 A.L.R.2d 1444 (C.C.A.2nd Cir., 1956); Rufino v. United States, 126 F.Supp. 132 (D.C.S.D.N.Y., 1954). A definition of "employee of the government" is set out in 28 U.S.C. § 2671. The term includes:

"* * * officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation."

Since these statutory provisions are not sufficiently definitive, the general principles of agency must be referred to in determining Frieda Gibbs' status as a star route mail carrier.

The main distinguishing factor between a servant or employee on the one hand and an independent contractor on the other, is that of control over the details of the actual performance of worker's duties. That is, there is no detailed control in the case of an independent contractor. See Restatement of the Law of Agency, Sec. 2; 35 Am.Jur. Master and Servant, Sec. 5; and while Vermont law as to who is an independent contractor is not controlling, s...