Capital Transit Co. v. United States, 10467.

• Decision Date: 05 June 1950
• Docket Number: No. 10467.,10467.
• Citation: 183 F.2d 825
• Parties: CAPITAL TRANSIT CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

183 F.2d 825 (1950)

CAPITAL TRANSIT CO. v.UNITED STATES.

No. 10467.

United States Court of Appeals District of Columbia Circuit.

Argued March 29, 1950.

Decided June 5, 1950.

Writ of Certiorari Granted October 9, 1950.

Mr. Frank F. Roberson, Washington, D. C., with whom Mr. George D. Horning, Jr., Washington, D. C., was on the brief, for appellant.

Mr. Marvin E. Frankel, New York City, Attorney, Department of Justice, of the Bar

of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Assistant Attorney GeneralH. G. Morison, George Morris Fay, United States Attorney, Paul A. Sweeney, Attorney, Department of Justice, and Messrs. Joseph M. Howard and Joseph F. Goetten, Assistant United States Attorneys, Washington, D. C., were on the brief, for appellee.

Before CLARK, WASHINGTON and KIMBROUGH STONE(sitting by designation), Circuit Judges.

Writ of Certiorari Granted October 9, 1950.See71 S.Ct. 61.

WASHINGTON, Circuit Judge.

This case presents the question whether under the Federal Tort Claims Act¹ the United States may be joined as a third party defendant in a suit between private litigants, when the purpose of such joinder is to secure contribution from the United States as a joint tort feasor.

The plaintiff, Kenneth Neil Stradley, filed suit for damages for personal injuries against the Capital Transit Company, appellant here, alleging negligence.Capital sought and obtained leave of court to make the United States a third party defendant, alleging that the negligence of a Government employee was the sole or the contributing cause of any injury which plaintiff sustained, and requesting that the United States be held liable for a contributable portion of any sum which might be adjudged against Capital in plaintiff's favor.Upon motion by the United States to dismiss the third party complaint for failure to state a cause of action upon which relief could be granted, the District Court entered a final judgment dismissing that complaint with prejudice.

The Federal Tort Claims Act provides, in part, as follows: "Subject to the provisions of this title, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, including the United States district courts for the Territories and possessions of the United States, 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 claimant 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 title, 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.Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that such costs shall not include attorneys' fees."Section 410(a), Act of August 2, 1946, c. 753, Title IV,60 Stat. 842.

The District Court in dismissing the third party complaint held that a suit for contribution was not one for "money damages, for * * * personal injury or death", within the meaning of the Federal Tort Claims Act.Capital contends that this judgment was erroneous in that it too narrowly construed the waiver of sovereign immunity contained in the Federal Tort Claims Act; that the Act specifically provides that the United States shall be liable to the same extent and in the same manner as a private person; that the clear intendment was that local law should determine whether there is a right of contribution by the joint tort feasors; and that under the law of the District of Columbia, if the United States were a private person, it would be liable for contribution under the circumstances here presented.Appellant further argues that under the Act the United States has made itself amenable to the third party practice provided for in the Federal Rules of Civil Procedure,28 U.S.C.A., and, accordingly, that the United States properly may be impleaded.The United States contends, first, that even if a suit for contribution is permissible under the Tort Claims Act, still the United States may not be joined as a third party defendant in a suit between private litigants; and, second, that in any event a suit for contribution is not within the scope of the Federal Tort Claims Act, not being a suit sounding in tort.

We have recently held, in Sappington v. Barrett, 86 U.S.App.D.C. 334, 182 F.2d 102, that the United States cannot be joined as a codefendant, to enforce liability as a joint tort feasor, in a suit between private litigants.In the instant case, we have the parallel question whether the United States can be joined as a third party defendant in such a suit.The United States Court of Appeals for the Third Circuit recently considered both questions — joinder of the United States as a joint tort feasor and its joinder as a third party defendant.It concluded that both types of joinder were permissible.Howey v. Yellow Cab Co.(United States);Gutmann v. Yellow Cab Co.(United States), 3 Cir., 181 F.2d 967.²

We are constrained to disagree with the learned judges of the Third Circuit.The Act itself does not deal directly with the question of joinder.The legislative history, however, deals with that question very clearly and positively.And the character and framework of the Act, as well as its legislative history, impel us to the conclusion that the United States has not consented to be joined either as a co-defendant or as a third party defendant in a suit between private litigants.

The Tort Claims Act was passed as one chapter of the Legislative Reorganization Act of 1946.Its purpose was twofold.First, it was to provide convenient administrative and judicial remedies to those injured through the fault of a Government employee.Previously, relief ordinarily could only be secured by obtaining passage of special bills by Congress.The second purpose of the Act was to relieve congressional committees of the overburdening work of considering these special bills, involving as it did the task of determining whether the United States should pay to private persons damages for injuries they had allegedly sustained because of the negligence of employees of the Government.Sen.Rep. No.1400, 79th Cong., 2d Sess., pp. 29-31.Thus, as a matter of function, in cases under the Tort Claims Actthe District Courts are sitting in substitution for congressional committees, i. e., on a basis similar to the Court of Claims.Drummond v. United States, D.C., 78 F.Supp. 730-731.This is suggestive of the type of jurisdiction Congress intended to confer.And the report on House Bill 181, 79th Congress, 1st Session, makes explicit the congressional intent that no person should be permitted "to be joined as a defendant with the United States."House Bill 181 was substantially identical with the Tort Claims Act as finally passed.³The House Committee reporting on that bill said: "It is intended that the district courts in exercising jurisdiction under this title shall exercise essentially the same type of jurisdiction as district courts exercise concurrently with the Court of Claims of the United States under the Tucker Act(act of March 3, 1887, 24 Stat. 505;28 U.S.C. sec. 41(20)).The bill therefore does not permit any person to be joined as a defendant with the United States and does not lift the immunity of the United States from tort actions except as jurisdiction is specifically conferred upon the district courts by this bill.(SeeUnited States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058;Lynn v. United States, 5 Cir., 1940, 110 F.2d 586, 588;Waite v. United States, 1922, 57 C.Cl. 546;Jackson v. United States, 1891, 27 C.Cl. 74, 84.The phrase `as a court of claims' in section 301 of the Senate bill was deleted as surplusage."(H.R.Rep. 1287, 79th Cong., 1st Sess., p. 5.)(Emphasis supplied.)

Among the cited authorities in that report was United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058.There the question was whether or not a private party could be joined with the United States in a suit under the Tucker Act.The Court of Appeals had held in the affirmative, relying among other things on the joinder provisions of the Federal Rules of Civil Procedure.2 Cir., 112 F.2d 587.The Supreme Court reversed, holding that the United States had not consented to be sued under the Tucker Act along with a private party, and that therefore the District Court lacked jurisdiction of the suit against the United States.It further held that even if the Federal Rules were applicable they merely set out the manner in which jurisdiction was to be exercised and could not confer jurisdiction upon the Federal courts.While the Sherwood case is not, in the strict sense, controlling, we think its reasoning applicable here.⁴It is true that, unlike the Tort Claims Act, the Tucker Act specifically provided that the District Courts were to have jurisdiction concurrent with the Court of Claims, and that this influenced the Supreme Court's determination that joinder was not permissible.But Congress could not have provided in the Tort Claims Act that the District Courts shall have jurisdiction concurrent with the Court of Claims, as it did under the Tucker Act, for the reason that the Court...