City of Newark v. United States

Decision Date20 March 1958
Docket NumberNo. 12274.,12274.
Citation254 F.2d 93
PartiesThe CITY OF NEWARK, a Municipal Corporation of the State of New Jersey, Appellant, v. UNITED STATES of America.
CourtU.S. Court of Appeals — Third Circuit

Jacob M. Goldberg, Newark, N. J. (Vincent P. Torppey, Newark, N. J., Joseph A. Ward, Newark, N. J., on the brief), for appellant.

Morton Hollander, Washington, D. C. (Geo. S. Leonard, Acting Asst. Atty. Gen., Chester Weidenburner, U. S. Atty., Newark, N. J., Paul A. Sweeney, Atty. Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

STALEY, Circuit Judge.

An intersection collision between an ambulance of the City of Newark and a mail truck of the United States presents in this appeal the interesting question of the permissive extent of defenses based upon sovereign immunity in an action between a municipality and the federal government.

The facts are relatively simple and free from dispute. On April 13, 1955, an ambulance owned by the City of Newark was being driven on an errand of mercy in that city. A United States mail truck, being operated on government business, came into collision with the ambulance at an intersection.

The City of Newark brought an action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b) and (c) and 2674, for damage to the ambulance in the amount of $3,000. The United States counterclaimed for damage to the mail truck in the amount of $245.75. The district court found that both drivers were negligent, and the concurring negligence was the legal cause of the collision. Judgment on the counterclaim of the United States was entered for the city. The district court determined that the New Jersey decisions preventing a private defendant from raising the defense of contributory negligence to bar a municipality's recovery applied to the United States by virtue of the Tort Claims Act. It held, however, that the conduct of the city's driver amounted to active wrongdoing, and as such was imputable to Newark under New Jersey law, preventing its recovery in the main suit. D.C.N.J.1957, 149 F.Supp. 917.

We agree with the action of the district court in dismissing the complaint of Newark, but we choose to base our affirmance upon the ground that the United States may avail itself of the defense of contributory negligence in an action against it by a municipality of the state of New Jersey.

Although the Tort Claims Act obviously intended to provide redress primarily for private suitors, the statute contains nothing to prevent actions like the present one by a municipality against the United States. After it gave the district courts jurisdiction of civil actions against the United States for money damages for injury to property, personal injury, or death, the Act further provided that the liability of the United States shall be as that of a private person in accordance with the law of the place where the negligence occurred. 28 U.S.C. §§ 1346(b) and 2674. Thus a literal interpretation of this statute would prevent the United States from successfully asserting the defense of contributory negligence, inasmuch as the defense is not available to a private person when sued by a municipality in New Jersey. City of Paterson v. Erie R. Co., 1910, 78 N.J.L. 592, 75 A. 922, 30 L.R.A., N.S., 209; Miller v. Layton, 1945, 133 N.J.L. 323, 44 A.2d 177, 1 A.L.R.2d 825.

The rationale of these New Jersey decisions is that if the negligence of a municipality cannot be imputed to it when it is a defendant by reason of its sovereignty, it follows that its contributory negligence cannot be imputed to it when the municipality itself undertakes to bring the action. Thus the decisional law of New Jersey, precluding the defense of contributory negligence against a municipality, allows that subordinate arm of the state not only to protect its treasury, but also to increase it by virtue of its sovereignty. Other states which have dealt with the problem have reached a contrary conclusion and have permitted the defense of contributory negligence against the plaintiff sovereign.1 See Annotation, 1948, 1 A.L.R.2d 827. So far as our research discloses, New Jersey is the only jurisdiction which precludes the defense.

Whatever immunity the City of Newark may possess is attributed to it only by virtue of the sovereign immunity of the state of New Jersey. The immunity of Newark cannot rise above that of its parent state. At this point, a distinction should be noticed between immunity from suit, that is, freedom from accountability, and immunity from liability after suit is brought. Immunity from suit altogether is the lofty prerogative of the state alone by virtue of its sovereignty. A municipal corporation might have a defense relieving it of liability, but it must at least make that defense. Hopkins v. Clemson Agricultural College, 1911, 221 U.S. 636, 645, 31 S.Ct. 654, 55 L.Ed. 890. The immunity of a municipality, therefore, is something less shielding than that of the sovereign state.

The immunity of a state from suit involves only immunity from the suit of individuals and not from an action by the United States. In United States v. State of Texas, 1892, 143 U.S. 621, 645-646, 12 S.Ct. 488, 493, 36 L.Ed. 285, the Supreme Court, speaking of Penn v. Baltimore, 1 Ves.Sen. 444, said:

"* * * That case, and others in this court relating to the suability of states, proceeded upon the broad ground that `it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.\'
"The question as to the suability of one government by another government rests upon wholly different grounds. Texas is not called to the bar of this court at the suit of an individual, but at the suit of the government established for the common and equal benefit of the people of all the States. The submission to judicial solution of controversies arising between these two governments, `each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other,\' McCulloch v. State of Maryland, 4 Wheat. 316, 400, 410, 4 L.Ed. 579, but both subject to the supreme law of the land, does no violence to the inherent nature of sovereignty."

The consent of states to suits by the United States is implied as inherent in the federal plan. Principality of Monaco v. State of Mississippi, 1934, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282. The Supreme Court recently reaffirmed the doctrine of United States v. State of Texas, supra, 143 U.S. 621, 12 S.Ct. 488, 36 L.Ed. 285, when it allowed injunction actions by the United States against Louisiana and Texas and required these states to account for profits received from offshore oil. United States v. State of Louisiana, 1950, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; United States v. State of Texas, 1950, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221. Both states had opposed a government motion for leave to file the complaint on the grounds that they had not consented to be sued and that United States v. State of Texas, supra, 143 U.S. 621, 12 S.Ct. 488, 36 L.Ed. 285, should be overruled. Refusing to overrule United States v. State of Texas, the Supreme Court granted the United States leave to file its complaints. 1949, 337 U.S. 902, 69 S.Ct. 1040, 93 L.Ed. 1716.

It was the thought of the district court here that while the United States could certainly sue a municipality as an arm of the state, the municipality would nonetheless be treated as a sovereign in the determination of its liability, citing United States v. State of North Carolina, 1890, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336, where it was decided that North Carolina was not liable to the United States for interest on bonds after the due date. Restated, the view of the district court is that while a municipality has no immunity from the suit of the United States, it nonetheless has immunity from liability after suit is brought. With this we do not agree. As stated above, a municipality does not have immunity even from the suit of an individual, though it might have a defense relieving it of liability. Hopkins v. Clemson Agricultural College, supra, 221 U.S. 636, at page 645, 31 S.Ct. at page 657. If the argument of the district court were adopted, the United States would stand in no better position than an individual. As we have seen, this is not the case. The United States has frequently brought actions against states unhampered by the necessity of obtaining state consent; moreover, the liability of the state in such actions is determined without regard to the state's immunity from liability. The rule of United States v. State of North Carolina, supra, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336, relied on by the district court is simply that...

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