Hugh C. Fisher, Appellant, v. United States of America, Appellee, 359 F.2d 59 (5th Cir. 1966)

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US Court of Appeals for the Fifth Circuit - 359 F.2d 59 (5th Cir. 1966) April 15, 1966
Rehearing Denied May 16, 1966

Hugh C. Fisher, in pro. per.

Melvin M. Diggs, U. S. Atty., Fort Worth, Tex., for appellee.

Before GEWIN and THORNBERRY, Circuit Judges, and WEST, District Judge.


This is an appeal from an order of the United States District Court for the Northern District of Texas dismissing appellant's suit on the pleadings and for failure to make out a prima facie case. The suit was brought pursuant to the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), to recover damages for personal injuries allegedly sustained in a fall on the steps of a United States Post Office due to the alleged negligence of the United States in maintaining the building and premises.

The main thrust of appellant's argument is that the cause should be remanded because the District Court abused its discretion by allowing the Government to amend its answer to the complaint pursuant to Rule 15, F.R.Civ. P. The appellant argues that without the amendment to the Government's answer the only issue to be decided was the amount of damages. Accordingly, in the trial court appellant insisted that the amended answer was improper and he refused to offer proof necessary to establish liability. We have carefully reviewed the record and briefs and find that the District Court did not abuse its discretion in granting the Motion to Amend, and that the court was amply justified in dismissing the case because of the refusal of the appellant to recognize the validity of the amended answer and his failure or refusal to offer proof of liability. See Lone Star Motor Import, Inc. v. Citroen Cars Corp., 288 F.2d 69 (5 Cir. 1961).

The judgment is affirmed.