130 F. Supp. 774 | N.D. Ala. | 1955
This case was submitted upon a motion for summary judgment filed by the Tennessee Valley Authority (hereinafter referred to as TVA), supported by the affidavits of Daniel O. Walstad and Charles H. Young.
In 1951, the Department of the Army and the TVA executed an agreement regarding the construction, maintenance and operation of a chemical facility on the TVA Reservation at Wilson Dam, Alabama. This contract provided that the Corps of Engineers would construct or cause to be constructed said facility. The contract further provided that upon completion of the construction, the Chemical Corps would conduct preliminary operations thereof and determine whether the facility was in proper operating condition, and after such a determination the TVA would assume custody, control and have direct responsibility for the operation and maintenance of the plant, subject to the general supervision of the Chemical Corps.
The Department of the Army contracted with the Vitro Corporation for the design and construction of the project. Vitro had no connection contractual or otherwise with TVA.
In the latter part of 1951, a number of TVA employees were assigned to the project to study the process employed and to familiarize themselves with the operation of the facility. On May 5, 1953, certain of the. facilities had been completed to the testing stage. Vitro was short of technical personnel and Walstad was loaned to that corporation to assist in the conduct of the test run. Walstad, as well as all other TVA personnel, was under the complete control, direction and supervision of Vitro during the run. The TVA personnel had no discretion to change any of the arrangements or details of operations, but were required to proceed in complete accord with the plans set up by Vitro and were under the complete direction, supervision and control of Vitro supervisory personnel.
On May 18, 1953, while the test run was in progress, a piece of equipment exploded and Asa June Busby was killed. Busby was an employee of Southern Contractors, a contractor engaged in the construction of the project. At the time of Busby’s death, TVA had not assumed custody or control of any part of the facility.
Under the rule sometimes called the “loaned servant” doctrine
This case presents a further legal hurdle which, in the Court’s opinion, bars recovery. The complaint in this action recites that it is brought under the Federal Tort Claims Act. Since TVA is excepted from the provisions of the Federal Tort Claims Act, Title 28 U.S.C.A. § 2680(1)» the plaintiff now insists that the action is properly brought under the Alabama Homicide Act, Code 1940, Tit. 7, § 123.
It has been repeatedly held that the Alabama Homicide Statute is punitive and that the damages recoverable are punitive and not compensatory.
It does not follow from the fact that the TVA may be sued in tort
A judgment will be entered granting the motion for summary judgment.
. Standard Oil Co. v. Anderson, 1909, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Denton v. Yazoo & M. V. R. R., 1932, 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310; Martin v. Anniston Foundry Co., 1953, 259 Ala. 633, 68 So.2d 323; Williams v. Central of Georgia R. Co., 1929, 220 Ala. 298, 124 So. 878.
. 65 C.J.S., Negligence, § 95, p. 615; Southern Pac. Co. v. Berkshire, 1921, 254 U.S. 415, 41 S.Ct. 162, 65 L.Ed. 335; Norfolk & W. R. Co. v. Hall, 4 Cir., 1932, 57 F.2d 1004; De Eugenio v. Allis-Chalmers Mfg. Co., 3 Cir., 1954, 210 F.2d 409, 413.
. Alabama Power Co. v. Stogner, 1922, 208 Ala. 666, 95 So. 151; Howard v. Davis, 1923, 209 Ala. 113, 95 So. 354; Heidtmueller v. Davis, 1924, 210 Ala. 548, 98 So. 791; Hampton v. Roberson, 1935, 231 Ala. 55, 163 So. 644; Parker v. Fies & Sons, 1942, 243 Ala. 348, 10 So.2d 13; Heath v. United States, D.C.N.D.Ala.1949, 85 F.Supp. 196; United States Cast Iron Pipe & Foundry Co. v. Sullivan, 5 Cir., 1925, 3 F.2d 794.
. Howard v. Davis, 209 Ala. 113, 95 So. 354; Heidtmueller v. Davis, 210 Ala. 548, 98 So. 791.
. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784.
. See report of House Judiciary Committee, Heath v. United States, D.C., 85 F.Supp. 196, 198.