Biagi

Plaintiff Biagi seeks to recover damages under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346 , 2671 et seq., for injuries suffered in an automobile collision, defendant being liable for the acts of a non-commissioned driver of the car allegedly responsible for the accident.

The United States challenges the jurisdiction of the Court under the Tort Claims Act. It asserts that plaintiff has already recovered under the Federal Employees’ Compensation Act and is therefore barred from bringing the present action, 5 U.S.C.A. § 751 et seq., being plaintiff’s exclusive remedy. Johansen v. United States, 343 U.S. 427 , 72 S.Ct. 849 , 96 L.Ed. 1051 .

In order to avoid the consequences of the Supreme Court’s interpretation of the Federal Employees’ Compensation Act, plaintiff contends that the injuries he sustained occurred outside of the course of his employment. He points out that he received his injuries during the five minute “coffee break” when he was off of his job at the Presidio. In reviewing the authorities, plaintiff concedes that there is a conflict insofar as state court decisions are concerned in interpreting the breadth of workmen's compensation acts.

In the light of the…