Maryland for Use of Levin v. United States

PETITIONER: Maryland for Use of Levin
RESPONDENT: United States
LOCATION: United States Post Office and Courthouse

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 381 US 41 (1965)
ARGUED: Mar 15, 1965
DECIDED: May 03, 1965

Facts of the case


Media for Maryland for Use of Levin v. United States

Audio Transcription for Oral Argument - March 15, 1965 in Maryland for Use of Levin v. United States

Earl Warren:

345 Maryland, for the Use of Nadine Y. Levin, Sydney L. Johns, et al., Petitioners versus United States.

Mr. Wolcott.

Theodore E. Wolcott:

May it please the Court.

These are suits for wrongful death under the Federal Tort Claims Act.

They arise out of the collision of a Capital Airlines Viscount plane and a T-33 military jet owned by the United States and used by the Air National Guard of Maryland.

The crash took place in May of 1958.

This case gets to the Court under rather unusual conditions.

There were two sets of suits started, one in Pittsburgh and the other in District of Columbia.

The District of Columbia suit was heard first on the issue of whether McCoy, the pilot of the jet T-33 was in fact an air maintenance air technician employed by the United States under Section 709 and therefore a caretaker of the aircraft at the time of the accident.

The District of Columbia, through Judge Mathews held a hearing on that, and found that he was, that the United States was liable.

Thereafter judgment was entered for damages and in the meantime the same suit by other passengers, the Capital Airlines plane came out to be heard in Pittsburgh.

Potter Stewart:

All the passenger were killed?

Theodore E. Wolcott:

Yes sir, all passengers were killed, the crew was killed of the Viscount, the T-33 had just the pilot McCoy and a passenger and the only survivor was McCoy.

There is no issue here as to the negligence of McCoy and nor is there any issue here as to the amount of the award for the wrongful death.

Potter Stewart:

The only question is whether or not McCoy was an agent of the United States within the meaning of the Federal Tort Claims Act?

Theodore E. Wolcott:

Yes sir.


Theodore E. Wolcott:

Yes sir, the government takes the stand that at the time McCoy was piloting the T-33, he was on a training mission as a military member of the Maryland Air National Guard and that therefore under the usual run of the Air National Guard cases there is no liability, whereas we take the position and the lower courts up to the circuit, Third Circuit held that McCoy at that time was serving in his function as caretaker air technician of the aircraft.

But the interesting thing about this case is that at the trial in Pittsburgh, Judge Gorrelli (ph) by a stipulation of all counsel, including government counsel, stipulated that the record in the District of Columbia would be the record in Pittsburgh and so we have a situation where the record is identical.

Meantime in the District of Columbia the government went up on appeal on this issue of whether McCoy was an air technician, maintenance technician under 709 or that he was purely a military member on a training flight.

The District of Columbia Circuit unanimously affirmed, writing an opinion through Judge Faye, finding that McCoy definitely was a care -- acting in a capacity of a caretaker at the time and this was not a training flight.

In the meantime the --

Earl Warren:

That was found by the District Court, didn't it, in the district --

Theodore E. Wolcott:

Yes sir the District Court plus the Circuit Court of Appeals and – for Washington Circuit and of course the Pittsburgh Court also found it.

In the meantime the government had also appealed from the Pittsburgh decision and I would argue that while the awaiting the decision of District of Columbia.

The District of Columbia decision came down first and I supplied the Third Circuit with copies of that decision.

Then the government applied to this Court for certiorari and certiorari was denied.

I supplied the Third Circuit with a copy of that.

Then a few months later the Third Circuit came down with the decision and this is on exactly the same record Your Honors, and with the District of Columbia Circuit decision before them and they reversed.

It was a split decision and the majority I might say, I think it fairly can be stated that the majority was divided as between themselves.