Margaret M. Gilliam v. United States

407 F.2d 818, 1969 U.S. App. LEXIS 8994

Opinions

ORDER.

Plaintiff brought this action in the Kentucky Circuit Court to recover damages suffered in an automobile accident. The named defendant was the executrix of the estate of the driver of the vehicle in which plaintiff was a passenger at the time of the accident. She and the driver were both Deputy United States Marshals and were engaged in the transportation of federal prisoners. Certifying that the driver was acting within the scope of his government employment, the United States Attorney caused the case to be removed to the District Court pursuant to the provisions of the Federal Drivers Act (28 U.S.C. § 2679(d)), and the United States was substituted as defendant.

The District Court thereafter overruled a motion of the government to dismiss the action on the ground that plaintiff could not maintain a suit against the United States under the Federal Tort Claims Act (28 U.S.C. § 1346) because she was eligible for and received compensation under the Federal Employees’ Compensation Act (5 U.S.C. § 751 et seq.). The driver’s negligence was stipulated, and judgment against the United States was entered under the Federal Tort Claims Act. We here review that judgment.

In Vantrease v. United States, 400 F.2d 853 (6th Cir.1968), we referred to the decision in the present case (Gilliam v. United States, D.C., 264 F.Supp. 7) as one “with which we disagree.” The briefs herein had been filed prior to the announcement of Vantrease, but in oral argument counsel for appellee attempted to distinguish it from the case here under review. However, a careful comparison of the two cases compels the conclusion that no meaningful distinction exists, and requires a reversal of the judgment herein on the authority of Vantrease for the reasons therein set forth. Accordingly,

It is ordered that.the judgment of the District Court be and it is hereby reversed and that final judgment be and is hereby entered for the defendant.