Oahu Ry. & Land Co. v. United States

• Decision Date: 26 September 1947
• Docket Number: Civil Action No. 773.
• Citation: 73 F. Supp. 707
• Court: U.S. District Court — District of Hawaii
• Parties: OAHU RY. & LAND CO. v. UNITED STATES.

73 F. Supp. 707

OAHU RY. & LAND CO. v. UNITED STATES.

Civil Action No. 773.

District Court, Hawaii.

September 26, 1947.

J. P. Russell, of Anderson, Wrenn & Jenks, of Honolulu, Hawaii, for plaintiff.

Ray J. O'Brien U.S. Atty., and William M. Blatt, Asst. U.S. Atty., both of Honolulu, Hawaii, for the United States.

McLAUGHLIN, Judge.

The plaintiff by this action, predicated upon the Federal Tort Claims Act, Sec. 931 (a) of 28 U.S.C.A., seeks to enforce an asserted right of contribution against the United States under the Territorial Joint Tortfeasors' Act, Revised Laws of Hawaii 1945, Sec. 10487 et seq. by an appropriate motion the Government urges the dismissal of the action.

Briefly the facts are that:

1. On October 9, 1943, an Army tank while being operated upon a public highway in the City and County of Honolulu collided with a bus operated by the plaintiff as a licensed public carrier.

2. As a result of the collision of these two vehicles a passenger in the plaintiff's bus was severely injured and later died. His dependents in June 1944 sued the plaintiff in the Territorial First Circuit Court alleging negligence by plaintiff's bus driver.

3. The plaintiff in February 1947 settled the damage suit and exacted from the deceased's heirs a full release of all claims arising out of the accident which the parties had against the United States.

4. Later in February 1947 plaintiff filed this action against the United States for "contribution for the full amount" of the $4,000 judgment against itself and which it had paid.

The Government's contentions that upon these facts there is a lack of jurisdiction and that the plaintiff has failed to state a claim upon which relief can be granted under the Tort Claims Act appear to be sound, unless there is merit to the opposing reasons assigned by the plaintiff. Upon familiar principles, as the Government contends, the United States cannot be sued without its consent, and where upon certain terms and conditions it has consented to be sued, a party seeking relief must bring himself squarely within the terms of the consent. United States v. Sherwood, 1941, 312 U.S. 584, 618 S.Ct. 767, 85 L.Ed. 1058. It is obvious that the alleged tort occurred in 1943 and direct recovery against the United States upon the basis of that event would be barred by the provisions of the Tort Claims Act limiting this Court's jurisdiction to claims "* * * accruing on and after January 1, 1945 * * *." 28 U.S.C.A. § 931 (a).

But the plaintiff argues that its "claim" arose in 1947, and is not therefore barred by the Act. It asserts that its claim or cause of action for contribution arose when it paid the Circuit Court judgment against itself and obtained a release of all claims for itself and — upon its own initiative — for the United States also. In taking this position the plaintiff relies heavily upon Westchester Lighting Co. v. Westchester County Small Estates Corporation, 1938, 278 N.Y. 175, 15 N.E.2d 567. In that case an employee of the defendant was asphyxiated by escaping gas from a main maintained by the plaintiff in a public highway and which had been broken negligently by defendant's employees. The defendant employer carried Workmen's Compensation insurance and beyond that was not liable to the employee or to his heirs. The employee's heirs sued the gas company and recovered a judgment upon the theory that it was negligent in not detecting the leak. The gas company then sued the employer. The New York court allowed it to recover by way of indemnity because it deemed the employer primarily at fault and it did so in full recognition of the fact that the employer would not have been liable to the employee's heirs.

The plaintiff's position does not impress me as sound for several reasons. In the first place its "claim" is for contribution as a joint tortfeasor. While it is true that if it has such a claim it arose in 1947, the important point is that such a claim is not a — "claim * * * 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 * * *." 28 U.S.C.A. § 931 (a). In a proper case involving a claim arising after January 1, 1945, it may well be that the United States can be held to contribute if a joint tortfeasor. But to subscribe to plaintiff's theory upon these facts would be to distort the Act. Congress in barring claims prior to January 1945 may well have had in mind the foreclosure of claims arising out of the recent war. In any event it set up a limitation, and to adopt plaintiff's theory here would involve litigating an underlying claim which is stale.

More importantly, the United States on the date (1943) of the alleged tort was not liable as a joint tortfeasor. In 1943 it had not consented to be sued for torts. As sovereign it...