Opinion
Civ. A. No. 53-1160.
November 2, 1954.
Anthony Julian, U.S. Atty., Charles F. Choate, Asst. U.S. Atty., Boston, Mass., for plaintiff.
Thomas J. Donnelly, Springfield, Mass., for defendant.
The defendant in an action for damage to a government motor vehicle has filed a counterclaim for damages to his own vehicle arising out of the same accident. The government has filed a motion to dismiss the counterclaim, based on the ground that the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., makes no provision for counterclaims, but only for original suits. The government cites United States v. Pittsley, D.C.Mass., 86 F. Supp. 463 in support of its position. Since the Pittsley case the Supreme Court has decided United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, and the Court of Appeals for this circuit has decided United States v. Silverton, 1 Cir., 200 F.2d 824.
It seems to me an unfortunate procedural restriction if I am compelled to dismiss this counterclaim, and in view of these subsequent cases I shall not do so. United States v. Harms, D.C.Colo., 96 F. Supp. 1022; United States v. Rosati, D.C.N.J., 97 F. Supp. 747.
Motion to dismiss denied.