United States v. Massachusetts Bonding & Ins. Co.

• Decision Date: 31 October 1955
• Docket Number: No. 5024.,5024.
• Citation: 227 F.2d 385
• Parties: UNITED STATES of America, Defendant, Appellant, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY et al., Plaintiffs, Appellees.
• Court: U.S. Court of Appeals — First Circuit

227 F.2d 385 (1955)

UNITED STATES of America, Defendant, Appellant, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY et al., Plaintiffs, Appellees.

No. 5024.

United States Court of Appeals First Circuit.

Argued October 4, 1955.

Decided October 31, 1955.

Rehearing Denied December 15, 1955.

Benjamin Forman, Washington, D. C., with whom Warren E. Burger, Asst. Atty. Gen., Anthony Julian, U. S. Atty., Boston, Mass., and Paul A. Sweeney, Washington, D. C., were on the brief, for appellant.

Edward A. Crane, John R. Kewer, John M. Hogan, Russell J. Coffin, Dale Vincent and Jules E. Angoff, Boston, Mass., for appellees.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

A complaint under the Federal Tort Claims Act was filed in the United States District Court for the District of Massachusetts, seeking recovery against the United States of money damages on account of the death of Jeremiah C. Crowley. The death was caused by the alleged negligent operation of traveling cranes by various government employees at the Watertown Arsenal, Watertown, Mass., while acting within the scope of their employment.

The plaintiffs named in the complaint, as amended, were the administratrix of the estate of Jeremiah C. Crowley, suing on behalf of the statutory next of kin pursuant to the Massachusetts Death Act, and the insurer of Crowley's employer who, having paid compensation to the decedent's dependents, was empowered to sue the tortfeasor under a subrogation provision of the Massachusetts Workmen's Compensation Act. Mass.G.L.(Ter.Ed.) c. 152, § 15.

After trial, the district court made findings and conclusions to the effect that under the facts disclosed the United States was liable for compensatory damages on account of Crowley's death, and that the resulting pecuniary injuries to Crowley's widow and children, who were his statutory next of kin, amounted to the aggregate sum of $60,000. These findings as to the liability of the United States and the amount of pecuniary injury to the next of kin are not now challenged on this appeal. But the district court went on to rule, as a matter of law, that the compensatory damages to be paid by the United States were not subject to the limitation upon recovery specified in the Massachusetts Death Act. Accordingly, judgment was entered against the United States in the amount of $60,000, from which judgment this appeal has been taken, presenting to us the sole question whether the damages in this case recoverable against the United States may exceed the statutory maximum of $20,000 contained in the Massachusetts Death Act.

We are called upon to interpret and apply the provisions of the Federal Tort Claims Act, to ascertain the "intention of Congress," as the saying goes, in a matter with respect to which, unfortunately, the Congress has not expressed its intention with the clarity and precision which might be desired.

The Federal Tort Claims Act was first enacted in 1946, 60 Stat. 842. The key section was § 410(a), reading as follows:

"Subject to the provisions of this Act, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, * * * sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claim for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this Act, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages. * * * Italics added.

Thus the section did not amount to the creation of a new comprehensive code of federal tort liability. Its purpose was not "the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence." Feres v. United States, 1950, 340 U.S. 135, 141, 71 S.Ct. 153, 157, 95 L.Ed. 152. The liability so accepted on behalf of the United States has been referred to as a liability on principles of "respondent superior." National Mfg. Co. v. United States, 8 Cir., 1954, 210 F.2d 263, 278. Ordinarily this means that the employer has to respond in damages where some employee, acting within the scope of his employment, has subjected himself to a tort liability under the applicable local law. However, there may be exceptional cases in which the employee who committed the wrongful act has a personal immunity from any tort liability to the particular plaintiff, yet where, under the local law, his employer, if a private person, may have to respond in damages to the injured individual. See Schubert v. August Schubert Wagon Co., 1928, 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293; O'Connor v. Benson Coal Co., 1938, 301 Mass. 145, 16 N.E.2d 636; Am.L. Inst., Rest. of Agency § 217(2). No doubt, under such circumstances, there might be a liability against the United States under the Tort Claims Act, though the injured person was disabled from recovering any damages against the wrongdoing employee. See United States v. Hull, 1 Cir.1952, 195 F.2d 64, 68.

Under the original statutory scheme of § 410(a), as set forth above, we think it is accurate to say that the United States could never be liable for a greater amount than that for which its wrongdoing employee would be liable under the local law, except in the one situation, just noted, where the injured individual could recover nothing from the employee only because the latter had a personal immunity from such tort liability.

As we pointed out in United States v. Hull, supra, 195 F.2d at page 67, the waiver of sovereign immunity under the Tort Claims Act is not unlimited; the Congress has not thrown the door wide open to suits against the United States in tort in all cases where the United States, if it were a private individual, would be liable in like circumstances under the applicable local law. See also the exceptions specifically listed in § 421 of the original act, 60 Stat. 845-846, now found in 28 U.S.C. § 2680.

So, too, under § 410(a) of the original act, the United States, if liable at all, was liable "to the same claimants, in the same manner, and to the same extent" italics added as a private employer under like circumstances; yet this generalization was subject to the qualification or exception "that the United States shall not be liable for interest prior to judgment, or for punitive damages." Thus, even though under the statutory law of some states a private defendant in a tort action might be liable for interest, from the date the action was instituted, on the amount of damages ultimately determined, see Moore-McCormack Lines, Inc., v. Amirault, 1 Cir., 1953, 202 F.2d 893, nevertheless the Congress has stipulated that the United States shall not be liable in such cases "for interest prior to judgment." Likewise, though under the law of some states a private employer, particularly a corporate employer, might be liable for punitive damages where the wrongdoing employee, because of the flagrant character of his wrong, might be subject to liability for punitive as well as compensatory damages, see 61 Harv.L.Rev. 119-21 (1947), yet the Congress chose to prescribe in § 410(a) that the United States shall not be liable for "punitive damages."

It was brought to the attention of the Congress that this flat prohibition against the recovery of "punitive damages" produced the unintended effect of precluding all liability of the United States for wrongful death in two states of the Union. The Death Acts of Alabama and Massachusetts, departing from the Lord Campbell's Act prototype, provided or had been construed to provide that, in suits for death by wrongful act, the amount of liability of the defendant should be assessed, not with reference to the amount of pecuniary loss suffered by the next of kin, but rather on a punitive basis with reference to the degree of culpability of the wrongdoer.

The Congress was understandably unwilling on this account to repeal outright the provision of law forbidding the assessment of punitive damages against the United States. But the Congress did not merely make an amendment to the effect that such prohibition against punitive damages should not apply to suits against the United States under the Death Act of any state which provided, as against a private employer, for the amount of liability to be assessed purely on a punitive basis. If it had done the latter, the Congress would have preserved the symmetry of the Act by permitting recovery against the United States only to the extent permitted by the local law as against a private employer. Instead, on August 1, 1947, the Congress added the following proviso to the language of § 410(a) above quoted, 61 Stat. 722:

"Provided, however, That in any case wherein death was caused, where the law of the place where the act or omission complained of occurred, provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons, respectively, for whose benefit the action was brought, in lieu thereof. * * *"

In the process of enactment of the foregoing amendment, the committee reports in both the House and Senate, after pointing out that...