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April 19, 1965

Mildred L. VAN VOORHIS et al.

The opinion of the court was delivered by: TAMM

The defendant District of Columbia has moved this Court for judgment in its favor notwithstanding the fact that the jury was unable to reach a verdict. Among the grounds for this motion, the District asserts that:

'The D.C. Employee Non-Liability Act, Section 1-921, et seq., D.C.Code, 1961 Edition, may not be retroactively applied to the facts in this case and, therefore, the action against the District of Columbia is barred for the reason that the operation of the District of Columbia Fire Department is a governmental function.'

 The facts giving rise to this case, as stipulated by the parties in the pretrial statement, are as follows: On January 22, 1960, at about 3:49 p.m., an automobile owned by plaintiff John Van Voorhis and operated by his wife plaintiff Mildred Van Voorhis, was proceeding in a southwesterly direction along Michigan Avenue, NE., in the District of Columbia. At the intersection of Michigan Avenue and South Dakota Avenue, NE., Mrs. Van Voorhis' car was in a collision with a fire engine of the District of Columbia, which was responding to a fire alarm. The fire truck was travelling southeast on South Dakota Avenue.

 As a result of that collision, the plaintiffs filed suit on September 8, 1961, against the District of Columbia 'pursuant to the provisions of 'The District of Columbia Employee Non-Liability Act' (hereinafter referred to as 'Act') Public Law 86-654; 74 Stat. 519, approved July 14, 1960,' and effective thirty days later on August 14, 1960, nearly seven months after the date of this accident. The complaint alleges gross negligence on the part of the District's employee in his operation of the fire truck and claims damages for personal injuries to Mrs. Van Voorhis. Mr. Van Voorhis sues for loss of consortium of his wife.

 In its answer to the complaint, the District's first defense is 'that the complaint fails to state a claim against it upon which relief can be granted.' On November 4, 1964, following the stipulation of facts in the pretrial statement, defendant asserted this defense in a motion to dismiss the complaint on the ground that the Act has no application to the facts of this case and, therefore, the District is entitled to the defense of governmental immunity.

 Defendant's motion was argued before Judge Curran, who held on January 8, 1965, that the Act, which deprives the District of the defense of governmental immunity in suits of this nature, was intended to be applied retroactively as well as prospectively and as so applied to this case would not be unconstitutional. Judge Curran, therefore, denied the defendant's motion to dismiss.

 The case then went to trial before a jury, which was unable to reach a decision on the merits of the plaintiffs' case. Defendant now reasserts its defense of governmental immunity in the form of the present motion for judgment in spite of the failure of the jury to reach a verdict. *fn1"

 At the outset, the Court is met with plaintiffs' argument in opposition to this motion 'that Judge Curran's memorandum opinion is the law of the case on this point and whether or not the question was incorrectly decided is not for this Court, but can only be resolved by the Court of Appeals.' The Court, however, is unable to accept that argument.

 The general rule in this area, as stated by Mr. Justice Holmes in Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740, 56 L. Ed. 1152, is that 'in the absence of statute the phrase, 'law of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.' Although the Messenger case involved a former ruling of an appellate court in a new appeal in the same case, it is clear that the above rule is equally applicable to the reconsideration of an order of one District Judge by another District Judge in the same case. E.g., Dictograph Products Co. v. Sonotone Corporation, 2d Cir., 230 F.2d 131, 135-136, cert. dismissed 352 U.S. 883, 77 S. Ct. 104, 1 L. Ed. 2d 82; Bowles v. Wilke, 7th Cir., 175 F.2d 35, 37, cert. denied 338 U.S. 861, 70 S. Ct. 104, 94 L. Ed. 528.

 Moreover, there is a sound reason for not applying the law of the case doctrine where the prior ruling was on a motion to dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure. The defense of failure to state a claim upon which relief can be granted cannot be waived and can be asserted at the trial on the merits and hence neither the defendant nor the trial court is concluded by a prior ruling on a motion to dismiss from reconsidering the questions previously raised. Commerce Oil Refining Corporation v. Miner, 1st Cir., 303 F.2d 125, 128; Farmer v. Rountree, 6th Cir., 252 F.2d 490, 491, cert. denied Farmer v. United States, 357 U.S. 906, 78 S. Ct. 1150, 2 L. Ed. 2d 1156; 2 Moore's Federal Practice Para. 12.-14; cf. Puritan Church of America v. United States, D.C.D.C., 191 F.Supp. 670, 671, aff'd Trustees of Puritan Church v. United States, 111 U.S.App.D.C. 105, 294 F.2d 734.

 Perhaps the strongest factor influencing the Court's decision to reconsider this question, notwithstanding Judge Curran's opinion, is that the parties in this matter are presently faced with the possibility of retrying the case before another jury, after having undergone the fruitless time and expense of the first trial. Since the Court disagrees with Judge Curran's opinion, its decision will result in a final order being entered in the case, which can be appealed from, if so desired. In that way, the issue can be finally determined, and any unnecessary and wasteful litigation may be avoided.

 Turning to the merits of defendant's motion, the issues raised thereby appear to be twofold: (1) Did Congress intend that the Act should be applied retroactively to deprive the District of the defense of governmental immunity under the facts of this case? (2) If so, would such a retroactive application be constitutional?

 The pertinent provision of the Act which must be construed in answering the first question is Section 3, which provides as follows:

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