Brown & Root v. United States

• Decision Date: 26 June 1950
• Docket Number: Civ. A. No. 4395.
• Citation: Brown & Root v. United States, 92 F. Supp. 257 (S.D. Tex. 1950)
• Parties: BROWN & ROOT, Inc., et al. v. UNITED STATES.
• Court: U.S. District Court — Southern District of Texas

92 F. Supp. 257

BROWN & ROOT, Inc., et al. v.UNITED STATES.

Civ. A. No. 4395.

United States District Court S. D. Texas, Houston Division.

June 26, 1950.

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Vinson, Elkins & Weems, W. B. Browder, Jr., of Houston, Tex., for plaintiffs.

Brian S. Odem, U. S. Atty., and W. G. Winters, Jr., Asst. U. S. Atty., of Houston, Tex., for defendant.

CONNALLY, District Judge.

This action, filed under the Federal Tort Claims Act,¹ seeking recovery of indemnity or contribution by a tort-feasor against the United States (allegedly a joint tort-feasor), presents many interesting questions under that statute and under the laws of this State.

During 1947 Brown & Root, Inc., a large general contracting firm, was engaged in certain road construction at Camp Hood, Texas, a U. S. military reservation, under contract with the U. S. Engineers.A hard surfaced and widely traveled road (referred to in the evidence as the "access road") was open to use, although still under construction.There was no bridge or culvert where the access road crossed a creek or large ditch, and users were obliged to detour and cross the ditch at a point where the sides were less precipitous.Normally the open culvert was marked at night by a barricade (consisting of a 2×4 or 2×6 board affixed to uprights) and by lighted flares.At approximately 11:30 P.M. the night of July 3, 1947, the time of the accident giving rise to the litigation, the flares were not burning, apparently because the fuel was exhausted.

At that time a government pickup truck, occupied by four civilian employees of the U. S. Engineers, was proceeding along the access road.The vehicle was driven by Jesse E. Robinson, with William L. Morgan seated in the cab with him.Thomas J. Rogers and Robert E. Quinn, Jr., were riding in the bed of the truck upon an improvised seat.The road traversed by the vehicle as it approached the barricade was straight, wide, and practically level.The vehicle was being driven at a speed variously estimated at from 35 to 50 miles per hour.The driver, Robinson, had used the road at least a few times within the matter of a day or so prior to the accident, and by reason thereof knew or should have known the location of the detour.

As he approached the barricade, Robinson failed to become aware of the danger in sufficient time to negotiate the turn onto the detour.He lost control of his vehicle, and it overturned.Robinson received very minor injuries; Rogers injuries of some severity; Morgan quite serious injuries; and Quinn was killed.

Thereafter, Morgan, Rogers and the heirs and representatives of Quinn filed separate suits in the State Court against Brown & Root, Inc., to recover for the injuries and death.The Attorney General of the United States was put on notice that these actions were pending and was requested to contribute to their defense, settlement, or disposition.When the United States declined to act, Brown & Root, Inc., through American General Insurance Co., its public liability insurance carrier (the real party in interest here), effected settlements before trial in each of the cases, paying to Rogers $1,250; to Morgan $8,750; to the heirs and representatives of Quinn $13,000.In view of the damages suffered by the various plaintiffs and the probable liability of Brown & Root, Inc., each of such settlements was fair and reasonable.

In this action, plaintiffsBrown & Root, Inc. and American General allege that Robinson, the Government's driver, was guilty of negligence in many particulars; that such negligence of Robinson was the sole proximate cause of the accident, and the negligence of Brown & Root, Inc., if any, was not a proximate cause; and they seek indemnity(i. e., recovery of their full outlay) of the United States.Alternatively, plaintiffs allege that if Brown & Root, Inc. were guilty of negligence which proximately caused the accident, then such negligence was passive, while that of Robinson was active and affirmative in character, whereby they seek indemnity.In the further alternative, plaintiffs allege that if the negligence of Brown & Root, Inc. and of Robinson be of the same character, and each a proximate cause of the accident, then Brown & Root, Inc. and the United States were joint tort-feasors, in which event the plaintiffs seek contribution (recovery of one half of the outlay) of the Government.

At the conclusion of plaintiffs' case, it appeared that American General had paid the entire loss under the terms of its policy of public liability insurance in favor of Brown & Root, Inc., and I sustained the defendant's motion that Brown & Root, Inc. be dismissed as a partyplaintiff.Hence the case stands as between these two parties.

At the inception, I am confronted with the motion of the Government to dismiss, based on the proposition that an action for indemnity or contribution does not lie against the Government under the Tort Claims Act.

Any number of opinions have been written by the inferior Federal Courts discussing the right to assert a derivative claim against the Government under terms of the Act, with varied and inconsistent results.The Supreme Court has settled the question as to claims arising by subrogation.U. S. v. Aetna Cas. & Sur. Co., 338 U.S. 366, 70 S.Ct. 207.But that does not answer our question as to indemnity or contribution, for these rights — and the principles of law giving rise to them — are quite different from subrogation.The opinion in the Aetna case is devoted not so much to an interpretation of the Tort Claims Act as to the Anti-Assignment Statute, R.S. § 3477,31 U.S.C.A. § 203, and simply holds that a subrogee, who by operation of law owns an interest in the cause of action in tort of the original plaintiff, may assert it against the Government in his own name.But an action for indemnity between tort-feasors is not an action ex delicto at all.It is based on contract.It is bottomed on the theory of unjust enrichment, and results from a promise, implied in law, that one who is ultimately liable for a wrong will reimburse him who, for other reasons, may also be liable, and who satisfies the obligation.Terminal R. R. Ass'n v. U. S., 8 Cir., 182 F.2d 149;George's Radio, Inc. v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219;42 C.J.S., "Indemnity", § 20, p. 594.

Nor does an action for contribution sound in tort.While not contractual in nature, its origin lies in the ancient doctrine of equity courts, now enforced at law, that those who are jointly liable will share the burden equally.18 C.J.S., Contribution, § 3, p. 5 et seq.;10 Tex.Juris., Contribution, p. 539.Judge Medina of the District Court for the Southern District of New York aptly makes the distinction in Niagara Fire Ins. Co. v. U. S., 76 F.Supp. 850, at page 855, with this language: "The right to contribution is an independent right founded upon principles quite different from those upon which the right of subrogation is based.The obligation to respond in contribution arises only after one of several parties equally liable for the same debt pays more than his pro rata share of the common debt.The cause of action does not exist until such a payment is made.But here, by the operation of the doctrine of subrogation, the subrogee becomes the owner of the very rights of the individual who suffered injury to his person or property; they are not similar or analogous but identical."Judge Medina held that an action for subrogation would lie, but cites with approval Oahu Ry. & Land Co. v. U. S., 9 Cir., 73 F.Supp. 707, holding that an action for indemnity or contribution would not.For this or other reasons, the following cases have held that an action for contribution or indemnity does not lie against the Government under the Tort Claims Act.Stradley v. Capital Transit Co., D.C., 87 F.Supp. 94(contribution);Oahu Ry. Co. v. U. S., supra("full contribution");Terminal R.R. Ass'n v. U. S., supra(indemnity).

In the appeal of the Stradleycase, supra, the Court of Appeals for the District of Columbia Circuit has declined to pass upon the question.Capital Transit Co. v. U. S., C.A.D.C., 183 F.2d 825.In the following, it has been held that such action would lie.U. S. v. Chicago R. I. & P. Ry. Co., 10 Cir., 171 F.2d 377("indemnity or subrogation" — the Court does not distinguish between the two; from the opinion it would appear the action was for indemnity);Howey v. Yellow Cab Co., 3 Cir., 181 F.2d 967(contribution).These latter opinions appear to be based on the hypothesis that the Act was intended by Congress to put the U. S. on the same footing as an individual defendant in all actions which sound in tort, or which, if derivative, have their derivation from facts consisting of breach of tortious duty; and on the further hypothesis that all such fact situations not specifically provided for in the Act shall be held included, unless specific provision is made for them in the list of exceptions.28 U.S.C.A. § 2680.The interpretation placed upon the Act by the last cited cases seems inharmonious with established rules of construction of such statutes.U. S. v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L. Ed. 1058, and cases there cited;Hubsch v. U. S., 7 Cir., 174 F.2d 7, and cases there cited.In view, however, of the clear holding by the Third and the apparent holding of the Tenth Circuits, and in the absence of an expression from the Supreme Court or our own Circuit (Fifth), I feel obliged to overrule the motion to dismiss.

Hence we pass to the question as to whether under the facts of this case and the law of this State, such action might be maintained by the plaintiffs against an individual defendant.

It is clear, and I find, that Brown & Root, Inc. was negligent in failing to have lighted flares or other adequate warnings around the open culvert.At the trial, counsel for plaintiffs did not seriously contend to the contrary.Likewise, I...