Joseph S. Jozwiak et al., Appellants, v. United States of America, Appellee, 199 F.2d 369 (6th Cir. 1952)

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US Court of Appeals for the Sixth Circuit - 199 F.2d 369 (6th Cir. 1952) October 17, 1952

Appeal from the United States District Court for the Southern District of Ohio; Mell G. Underwood, Judge.

D. Curtis Reed, Columbus, Ohio and Waddell & Furbee, St. Clairsville, Ohio, for appellants.

Ray J. O'Donnell and Loren G. Windom, Columbus, Ohio, for appellee.

Before HICKS, ALLEN and MARTIN, Circuit Judges.


This appeal from a judgment sustaining the motion of appellee for summary judgment and dismissing appellants' complaint has been heard and considered upon the transcript of record and upon the briefs and oral arguments of the contending parties;

And it appearing therefrom that, while the correct ultimate decision in the justiciable controversy may be that the cause of action must be dismissed, this court is of opinion that the District Court committed error in entering summary judgment for the appellee, United States (defendant below), inasmuch as the complaint and the three exhibits of record, consisting of the so-called "Notification of Personnel Action" issued to Lawrence M. Sowers by the United States Department of the Interior, Fish and Wildlife Service, authorizing the use of the employee's privately owned conveyance, if desired, and the letter directed to the employee, Sowers, by W. R. Dillon, Acting Director, and the affidavit of Mrs. Lawrence M. Sowers, do not, taken together, constitute an adequate record upon which summary judgment should have been entered, it being the opinion of this court that proof revealing fully all the relevant circumstances of the case should be received before it could be properly determined whether the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, is appropriately applicable to the circumstances of this action;

The cause is remanded to the District Court for further proceedings in conformity with this order. See Estepp, Adm'r v. Norfolk & Western Ry. Company, 6 Cir., 1952, 192 F.2d 889.