FANCHER v. BAKER
5-3742
Supreme Court of Arkansas
February 21, 1966
399 S.W.2d 280
Affirmed on appeal and affirmed on cross-appeal.
H. Paul Jackson, for appellant.
Little & Enfield, for appellee.
CARLETON HARRIS, Chief Justice. This is a case of first impression in this state. Haleen Fancher, appellant herein, and Chester Baker, appellee herein, were involved in an automobile accident in Carroll County on June 15, 1962. At the time of the mishap, Baker was acting in the course of his employment as a rural mail carrier, employed by the United States Government. On August 31, 1964, appellant instituted suit against appellee for damages, asserting that she was severely injured by the collision, and that her injuries were due to the negligence of Baker. Thereafter, appellee filed in the United States District Court for the Western District
At issue are certain provisions of
To briefly summarize pertinent portions, a government employee who has suit instituted against him for personal injuries or property damage, resulting from the employee‘s operation of a motor vehicle while acting within the scope of his employment, is entitled to have the United States substituted as the defendant, provided the essential provisions of the Code are complied with. The employee is required to timely deliver all process served upon him to his immediate superior in his department (or to whoever is designated by the department head to receive such papers), and this person then promptly furnishes copies of the pleadings and process to the United States District Attorney (for the proper district), the Attorney General, and the head of the employing Federal agency. The Attorney General is then required to certify that the defendant employee was acting within the scope of his employment at the time of the occurrence out of which the cause of action arose, and when this is done, the case is removed from the state court to the Federal district court for the district and division embracing the locale where the case is pending. The suit is then considered a tort action brought against the United States, and the employee is no longer a party. However, tort actions brought against the United States must be commenced within two years from the date the cause of action accrued, and it is this last fact which actually occasions the litigation‘s making its way to this court.
Appellant did not commence her action against Baker until more than two years had elapsed after the collision. Appellee apparently thereafter followed the procedure mentioned, but there is no certification by the Attorney General of the necessary facts. Of course, the suit was not commenced within two years, and accordingly, there could be no liability on the part of the government. Subsequently, Baker, through his attorney, filed a motion in the Federal District Court, setting out that the United States Attorney had refused certification, and asking the court to substitute the United States Government as the defendant in the action. In support of the motion, he also filed his affidavit. The government entered its special appearance, asserting that appellee‘s motion was insufficient to state a claim upon
Thus far, there appears no disagreement, but appellant contends that she still has the right to pursue her claim against appellee in the state court, because there, the cause of action is not barred by limitations. Appellant states:
“I think it is apparent that the Congress intended for the legislation to be an exclusive remedy only when all its conditions had been complied with, which in effect means that the United States accepts responsibility for the action on a respondeat superior theory and declares the tort feasor immune. Since neither of these conditions have been complied with in the instant case, and because the federal court for this district has refused jurisdiction in this matter, it is our contention that the action is maintainable against the defendant on an individual basis in our state court.”
We do not agree. There are but few cases on this legislation (pertinent portions being enacted in 1961),
“The fallacy of plaintiffs’ argument is that they never had rightful remedy in the state court or any other court against Francis Carter, the person against whom timely suit was instituted in the state court. Once plaintiffs concede, as they have here, that Francis Carter was acting within the scope of his federal employment at the time of the accident, then
28 U. S. C. § 2679(b) is dispositive:“(b) The remedy by suit against the United States as provided by
section 1346 (b) of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafterbe exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim. “[4] Plaintiffs’ sole and exclusive remedy was one against the United States. See the comprehensive discussion of
28 U. S. C. § 2679 (b) -(e) by Judge Feinberg in Perez v. United States, 218 F. Supp. 571 (S.D.N.Y. 1963).“[5] The party against whom this action was timely brought—Francis Carter—was immune from suit. Remedy against the only party amenable to suit—the United States—was concededly barred as untimely. * * *”
As here, appellants argued that, having no remedy against the United States they should have their remedy in the state court.
The court stated:
“The obvious answer to plaintiffs’ last argument is that a remedy against the United States was available; plaintiffs merely failed to avail themselves of it.”
We think unquestionably that the remedy afforded by suit against the government is exclusive. Indeed, the legislative language, “exclusive of any other action or proceeding,” could hardly be more forcefully stated. As in Hoch, there was a remedy available to appellant—but she did not avail herself of it.4
MCFADDIN and COBB, J.J., dissent.
GEORGE ROSE SMITH and WARD, J.J., concur in the result.
ED. F. MCFADDIN, Justice, dissenting. I dissent. I admit the Federal Government is extremely powerful; but if one citizen of Arkansas desires to sue another citizen of Arkansas in the State Courts of Arkansas in a private tort action, then I am not willing to hold that the Federal Congress can shorten the State statute of limitations in actions between individuals. Particularly is this true in this case in which the Federal Government was not, and is not, a party. In short, I deny the constitutionality of a Federal statute that is construed to accomplish such a result as is reached by the Majority in this case.
OSRO COBB, Justice, dissenting. The majority has found it unnecessary, in considering this appeal, to pass upon the question, if any, as to the existence of a genuine factual issue between the parties as to the mission and scope of activities of appellee as an employee of the United States at the time of the collision. The majority has adopted the view that such an issue is not sufficiently raised by appellant for our review. I do not agree.
Appellant‘s entire appeal is bottomed upon a single Point, and I quote:
“Court erred in granting Defendant-Appellees motion for summary judgment since
28 U. S. Code Section 2679 grants exclusive jurisdiction to the United States only when the United States accepts responsibility for the tortious act and declares the tort feasor immune, neither of which were done in this case.”
This appellant suffered the dismissal of her entire cause of action in the trial court by the entry of a sum-
Appellee filed an affidavit in support of his motion for summary judgment stating that he was employed by the United States and was in performance of his duties of delivering mail at the time of the accident. However, within two days of the filing of said affidavit by appellee, appellant filed a formal response, paragraph 1 of same reading as follows:
“That there are genuine issues of material facts which plaintiff cannot present in affidavit form because same are outside plaintiffs’ knowledge at this time, and/or would have to be presented by proper testimony.”
Moreover. appellee had previously filed a request for admissions of fact by appellant as to appellee‘s employment by the United States and as to his being engaged in delivering the mail at the time of the incident. Appellant formally responded refusing to make the admissions and stating in her response:
“. . . She cannot, however, with certainty, say that the defendant was on this route delivering mail at the time of the collision. Plaintiff, therefore, states that she has insufficient information to admit or deny those items requested by defendant.”
Summary judgment is not available unless all questions as to dispositive facts have been removed.5
“Motion for summary judgment is extreme remedy and should be granted only in absence of genuine material fact issue.
Ark. Stat. Ann. Sec. 29-211 . Fed.
Rules Civil Procedure, Rule 56, 28 U. S. C. A.” Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646.
Our civil procedures as to summary judgment have been taken from
“The affidavit was not disputed with counter affidavits or subsequent pleading of any kind, although the defendants have been given adequate time under the local rules to do so if they so desire.” (Underscoring ours.)
“Nothing less than most conclusive showing possible in defendants deposition that master and servant relationship existed between defendant and such owner and operator should be accepted as sufficient on defendant‘s motion for summary judgment, as knowledge of controlling facts on such issue is almost exclusively in defendant‘s possession.” Hoffman v. Lamb Knit Goods Co., 37 F. Supp. 188. In Subin v. Goldsmith, 224 F. 2d 753, the court held: “Opponents failure to file counter affidavit in answer to affidavit filed to support motion for summary judgment does not compel acceptance as true of facts alleged in movant‘s affidavit.” Cert. denied, 350 U. S. 883.
In Fogelson v. American Woolen Company, 170 F. 2d 660, cited in Subin v. Goldsmith, supra, all of the directors of the corporation, including a former Gover-
“It may be unlikely that the plaintiffs can prove their allegation, for such proof must be drawn largely from the directors themselves by cross-examination; but we do not think that their affidavits must be accepted as conclusive and thus preclude any trial of that issue.”
In Bozant v. Bank of New York, 156 F. 2d 787, Judge Learned Hand set forth in the opinion:
“In conclusion we cannot avoid observing that the case is another mistaken effort to save time by an attempt to dispose of a complicated state of facts on motion for summary judgment. This is especially true when the plaintiff must rely for his case on what he can draw out of the defendant. Arnstein v. Porter, 2 Cir., 154 F. 2d 464. It appears to be somewhat difficult to persuade the district courts of this; but we are satisfied that it is true.”
The practice has generally been followed in the federal courts at all levels to decline summary judgment where the facts set forth in affidavits in support of motion for summary judgment are peculiarly in the knowledge of defendants. See Colby v. Klune, 178 F. 2d 872. Sartor v. Ark. Natural Gas Corporation Kansas Group, 321 U. S. 620. In Toebelman v. Missouri-Kansas Pipe Line Co., 130 F. 2d 1016, the court declared:
“It is obvious that this evidence must come largely from the defendants. This case illustrates the danger of founding a judgment in favor of one party upon his own version of facts within his sole knowledge as set forth in affidavits prepared ex parte.
Cross-examination of the party and a reasonable examination of his records by the other party frequently bring forth further facts which place a very different light upon the picture.”
A leading case in interpreting the federal rules as to summary judgments in situations similar to the instant case is that of Cohen v. Curtis Publication Company, 31 F. R. D. 569, from which we quote:
“In considering this motion, the Court is fully aware that a summary judgment should be granted with caution and only where the movants have established the non-existence of any genuine issue of fact. The showing made likewise must be construed in the light most favorable to the plaintiff. Moreover, the plaintiff should be accorded any and all favorable inferences that may be deduced from the showing. It is with these principles in mind that the Court approaches the question as to whether or not these two movants are entitled to the relief which they seek.”
The Cohen case, supra, was affirmed 312 F. 2d 747, cert. denied 375 U. S. 850, and rehearing denied 375 U. S. 936.
Subsection (d) of Section 2679,
On October 8, 1964, appellee filed a verified motion seeking to have the United States substituted as a defendant in the action brought by appellant against him, and paragraph 4 of said motion, at page 10 of the transcript of the record, sets forth:
“The U. S. Attorney for the Western District of
Arkansas has refused to certify that appellant was acting within the scope of his employment at the time of the incident out of which this suit arises. . . .”
Subsequently, on October 30, 1964, the U. S. Attorney for the Western District of Arkansas entered a special appearance opposing appellee‘s motion to substitute the United States of America as a party defendant, paragraph 2 of said special appearance being as follows:
“That the defendant‘s motion is not sufficient to state a claim from which liability of the United States can be founded.”
The Department of Justice had several weeks of time in which to inquire into the circumstances of this accident before filing its special appearance, and the language of the special appearance, in avoiding any statement as to the mission of appellee at time of accident, strongly infers an additional cloud over the unresolved fact issue as to whether appellee was acting within the scope of his duties as an employee of the United States at the time of the accident. I am convinced that multiple doubts and inferences of doubt existed as to this factual issue. Since it seems to me that this case never reached a posture wherein summary judgment could be appropriately entertained, I must respectfully dissent from the majority opinion in affirming the summary judgment entered in this case.
I, therefore, dissent.