199 F2d 581 McCranie v. United States

199 F.2d 581




No. 14145.

United States Court of Appeals Fifth Circuit.

Nov. 6, 1952.

John L. Green, Athens, Ga., for appellant.

Stanley D. Rose, Atty., Dept. of Justice, Washington, D.C., John P. Cowart, U.S. Atty., and J. H. Fort, Asst. U.S. Atty., Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES, and RUSSELL, Circuit judges.



This is an appeal from a summary judgment entered in favor of the United States in a suit, under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., brought to recover for torts of National Guardsmen, whose unit had not yet been called into active service.


The district judge granted the judgment on the ground that the persons, whose negligent acts and omissions are alleged by the plaintiff to have been the proximate cause of the collision were not employees of the United States acting within the scope of their office or employment at the time, as contemplated by the Federal Tort Claims Act.


The decision was in accordance with the decision of this court in Dover v. United States, 5 Cir., 192 F.2d 431, Elmo v. United States, 5 Cir., 197 F.2d 230, and United States v. Duncan, 5 Cir., 197 F.2d 233. On the authority of those cases, the judgment is