Federal Procedure – Venue in Third-Party Tort Actions Against the United States

Plaintiff sustained serious injuries when he was struck by a mail pouch thrown from defendant’s moving train by a United States mail clerk. Action was was brought against the railroad in the District Court for the Western District of Oklahoma, whereupon the railroad filed a third-party complaint against the United States, alleging negligence on the part of the mail clerk. The United States moved for a dismissal on the ground that both plaintiffs residence and the situs of the injury were in the Eastern District of Oklahoma; since the venue provisions of Title 28, U.S.C. (1952) §1402(b) prescribe that tort actions against the United States may be brought only in the district where the plaintiff resides or where the act or omission complained of occurred, the United States had not consented to be sued in the Western District. The motion was denied, and judgments were rendered against both the railroad and the United States. On appeal, held, affirmed. A third-party action being ancillary in nature, its venue might be derived from that of the original action. United States v. Acord, (10th Cir. 1954) 209 F. (2d) 709.