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146 C. Cls.

No. 359-58. JUNE 19, 1959 Jacob Alpar.

Tort claim. Plaintiff, a former civilian employee of the Air Intelligence Service Wing of the Air Force serving in Germany and subsequently retired for disability, sues to recover damages for alleged torts committed by the United States officials for breach of an implied fiduciary obligation on the part of his employers, and for the alleged appropriation of his unpublished essays, compositions and statements. Upon consideration of plaintiff's and defendant's motions for summary judgment, together with the respective responses, and oral argument by the parties, it was ordered on June 19, 1959, that plaintiff's motion be and the same is denied, defendant's motion is granted, and plaintiff's petition is dismissed on the ground that it fails to state a cause of action within the jurisdiction of this court. Plaintiff's motion for rehearing was overruled October 7, 1959.

REPORT OF DECISIONS

OF

THE SUPREME COURT

IN COURT OF CLAIMS CASES

NORTH AMERICAN VAN LINES, INC., PETI

TIONER, V. THE UNITED STATES

No. 16-58
(144 C. Cls. 641; 859 U.S. 1011)

Plaintiff's petition for writ of certiorari denied by the Supreme Court June 1, 1959.

JOHN M. KEARNEY, PETITIONER, v. THE UNITED

STATES

No. 1-55

(140 C. Cls. 523; 360 U.S. 916) Plaintiff's petition for writ of certiorari denied by the Supreme Court June 22, 1959.

McCORMICK AND COMPANY, INCORPORATED,

PETITIONER, v. THE UNITED STATES

No. 396-55
(145 C. Cls. 160; 360 U.S. 916]

Plaintiff's petition for writ of certiorari denied by the Supreme Court June 22, 1959.

A. CRAWFORD GREENE, ET AL., PETITIONERS,

V. THE UNITED STATES

No. 539 53

(145 C. Cls. 259; 360 U.S. 933) Plaintiffs' petition for writ of certiorari denied by the Supreme Court June 29, 1959.

INDEX-DIGEST

ACTIVE DUTY PAY. See Military Pay.
ADMINISTRATIVE REMEDIES. See Civilian Pay; Contracts.
APPELLATE REVIEW. See Indian Claims.
ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALI-

ZATION ACT OF 1948. See Military Pay.
ARMY OF THE UNITED STATES WITHOUT COMPONENT. See Mili-

tary Pay; Public Office.
AUTHORITY OF GOVERNMENT AGENT. See Eminent Domain; Gov.

ernment Agent.
BANKRUPTCY ACT. See Civilian Pay; Court of Claims-Jurisdiction.
BOUNDARIES (LAND). See Indian Claims.
CAREER COMPENSATION ACT. See Military Pay.
CARRIERS.
CARRIAGE OF GOODS.
Intrastate shipment.

Federal Government's right to contract.
The United States is free to contract for intrastate transportation
rates which are higher or lower than those set by the state regu-
latory agencies. Union Transfer Co. v. United States, 144 C. Cls.
43, cert. denied 359 U.S. 968; Hughes Transportation, Inc. v. United
States, 144 C. Cls. 200, cert. denied 359 U.S. 968. Alabama Highway

Express, 594.
Carriers om 192

Implied contract.
Where a written contract between the Government and the carrier
calling for higher interstate rates on intrastate shipments had ex-
pired, the carrier had refused to ship additional goods at the lower
intrastate rates and the Government continued to ship the goods
and pay the higher rates contained in its old contract, it will be
presumed that the parties had agreed orally or by their conduct
that the goods should be shipped at the higher interstate rates,
since the Government is free to contract for rates violative of the
state's published intrastate tariffs. Alabama Highway Express,

594.
Carriers 192

867

146 O. CLs.

CARRIERS-Continued
CARRIAGE OF GOODBContinued
Intrastate shipment-Continued

Published tarif usually applicable.
It will not be presumed that parties to an intrastate contract of
carriage intended to contract in violation of the published Intrastate
tarift even though the shipper is the Government. Alabama High-

way Express, 594.
Carriers om 192

What constitutes.
Where gasoline is delivered to a port terminal within a state and
from that terminal is carried by the carrier to other points in the
same state, the shipment has moved in intrastate commerce be
cause the delivery of the oil to the port terminal from a refinery
in another state was a "closing of an interstate or foreign trans-
portation and a beginning of intrastate distribution for the pur-
poses and business of the shipper. Atlantio Coast Line Railroad
Co. v. Standard Oil Co. of Kentucky, 275 U.S. 257, 271. Alabama

Highway Express, 594.
Commerce w 33(4)
CHANGES. See Contracts.
CIVILIAN PAY.
ADMINISTRATIVE REMEDIES.

Failure to exhaust.
Where a dismissed civilian Government employee fails to pursue
his administrative remedy of appeal to the Civil Service Commis-
sion, he has no standing to question in this court the procedural

propriety of his dismissal. Monday, 6.
Officers om 72(2)
CIVIL SERVICE RETIREMENT ANNUITY.

Widow's survivor annuity.
Where the statute does not require a written application but only
"satisfactory evidence” of the claim for a civil service retirement
annuity, an application in decedent's own handwriting making
claim for an annuity and electing to take a reduced annuity in
order to secure a widow's survivor annuity for decedent's wife, is
sufficient evidence within the meaning of the statute even though
the application was not filled with the Civil Service Commission

prior to the applicant's death. Sonnabend, 622.
United States On 39(16)

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