Ruby Humphreys, Administratrix of the Estate of William Orvie Humphreys, Deceased v. United States

In July of 1957 plaintiff brought suit in the District of Oregon against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., asserting damages suffered because of the death of her husband on May 24, 1956, while attempting to rescue his brother from a well at Cove Mountain Lookout, Arkansas. Plaintiff alleged that the death of her husband was proximately caused by the negligence of the Government’s agent at the Mountain; hence the United States was liable to her for damages under the Act.

The Government answered the complaint in October 1957 claiming improper venue as a first defense and denying negligence on the part of its agent as a second defense.

Prior to the taking of any further action in the case, plaintiff on March 26, 1958, moved to dismiss the action without prejudice to either party pursuant to Rule 41(a) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. In her motion she stated that it was her intention to refile her suit in Arkansas for the convenience of the parties and witnesses. The court granted her motion and issued an order accordingly.

Thereafter plaintiff’s attorneys failed to bring suit in the Arkansas District until…