Nola S. Heale v. United States

207 F.2d 414

Nola S. HEALE
v.
UNITED STATES of America, Appellant.

No. 11075.

United States Court of Appeals Third Circuit.

Argued October 8, 1953.

Decided October 19, 1953.

Appeal from the United States District Court for the District of New Jersey; Forman, J.

Benjamin Forman, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Grover C. Richman, Jr., U. S. Atty., Newark, N. J., Stuart B. Rounds, Asst. U. S. Atty., Trenton, N. J., Samuel D. Slade, Attorney, Department of Justice, on the brief), for petitioner.

John Warren, Jr., Red Bank, N. J. (Parsons, Labrecque, Canzona, & Combs, Red Bank, N. J., on the brief), for respondent.

Before BIGGS, Chief Judge, and McLAUGHLIN and STALEY, Circuit Judges.

PER CURIAM.

1

A judgment against the United States cannot be sustained upon a theory of absolute liability. Dalehite v. United States, 346 U.S. 15, 44-45, 73 S.Ct. 956. Since the court below made no express finding as to negligent conduct on the part of the United States it is necessary to vacate the judgment and remand to the end that appropriate findings may be made. We make it plain, however, that we do not pass upon the question whether the record would or would not sustain a finding of negligence against the United States. This is a matter which rests with the trial court.

2

The judgment appealed from will be vacated and the case is remanded with the direction to proceed in accordance with this opinion.