Collins v. Government of Virgin Islands

• Decision Date: 14 September 1966
• Docket Number: No. 15250,15290.,15250
• Citation: 366 F.2d 279
• Parties: Harvey B. COLLINS v. GOVERNMENT OF the VIRGIN ISLANDS of the United States, George Wade, Sr., Aubrey Todman, Luther Benjamin, Clifford Benjamin and John Doe, a Person, Firm, Association or Incorporation, and Being a Fictitious Name, Jointly, Severally and in the Alternative. Government of the Virgin Islands, Appellant. Harvey B. COLLINS, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS of the United States, George Wade, Sr., Aubrey Todman, Luther Benjamin, Clifford Benjamin and John Doe, a Person, Firm, Association or Incorporation, and Being a Fictitious Name, Jointly, Severally and in the Alternative.
• Court: U.S. Court of Appeals — Third Circuit

366 F.2d 279 (1966)

Harvey B. COLLINS v. GOVERNMENT OF the VIRGIN ISLANDS of the United States, George Wade, Sr., Aubrey Todman, Luther Benjamin, Clifford Benjamin and John Doe, a Person, Firm, Association or Incorporation, and Being a Fictitious Name, Jointly, Severally and in the Alternative.

Government of the Virgin Islands, Appellant.

Harvey B. COLLINS, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS of the United States, George Wade, Sr., Aubrey Todman, Luther Benjamin, Clifford Benjamin and John Doe, a Person, Firm, Association or Incorporation, and Being a Fictitious Name, Jointly, Severally and in the Alternative.

Nos. 15250, 15290.

United States Court of Appeals Third Circuit.

Argued May 23, 1966.

Decided September 14, 1966.

Rehearing Denied October 10, 1966.

Francisco Corneiro, Atty. Gen. of Virgin Islands, Charlotte Amalie, St. Thomas, V. I., for the Government of the Virgin Islands.

Thomas D. Ireland, Charlotte Amalie, St. Thomas, V. I. (Maas and Ireland, St. Thomas, V. I., Belli, Ashe & Gerry, Melvin M. Belli, San Francisco, Cal., on the brief), for Harvey B. Collins.

Before KALODNER and HASTIE, Circuit Judges and WRIGHT, District Judge.

Rehearing Denied in No. 15250 October 10, 1966.

OPINION OF THE COURT

KALODNER, Circuit Judge.

Since they are interrelated, these two appeals at Nos. 15250 and 15290, will be separately considered and disposed of in this opinion.

The issue presented, at No. 15250, is whether the defendant-appellant, the Government of the Virgin Islands ("Government"), should have been afforded a jury trial in this personal injury action, tried to the District Court of the Virgin Islands without a jury, which resulted in a judgment for plaintiff-appellee, Harvey B. Collins, in the amount of $550,000.

Collins was seriously injured when the car which he was driving collided with a disabled truck on Harwood Highway, St. Thomas, in the early morning hours of February 4, 1961. The truck, owned by one Luther Benjamin, had been left astride part of the traveled portion of the highway after it blew two rear tires during the afternoon of February 3, 1961. The driver, William Samuel Wade, did not report the breakdown to the authorities. Despite the fact that the authorities subsequently became aware of the presence of the truck, it remained on the highway throughout the afternoon and evening. Collins' car collided with the right rear of the truck while he was returning from town to the submarine base where he was stationed.

On February 1, 1963 Collins filed suit in the District Court of the Virgin Islands to recover for the injuries he received in the accident against Government, Luther Benjamin, and William Samuel Wade.¹ The complaint charged (Paragraph XVI) that the "accident and collision was caused by, precipitated through and was the proximate result of the carelessness, negligence, omissions and breach of duty of defendants" and prayed for judgment in the sum of $500,000.

Government was named as a defendant pursuant to special legislation, Act No. 921, January 25, 1963, which authorized Collins to file suit against Government and provided that he "may proceed against the Government as in the case of any other defendant".

On March 7, 1963, the defendant, Luther Benjamin, filed an answer to the complaint and on the same day served a copy on attorneys for Collins. The answer denied ¶ XVI of the complaint to the effect that defendants caused the accident by their "carelessness, negligence, omissions and breach of duty" and set up as a "special" defense "the contributory negligence of the plaintiff". Included in the answer was the statement "Defendant requests a Jury Trial".

Government filed its answer on March 27, 1963 and served a copy on the attorneys for Collins on the same day. The answer denied the allegations in ¶ XVI and set up as an affirmative defense that "the plaintiff was guilty of negligence" which "negligence proximately caused and contributed to cause the matters complained of in plaintiff's complaint". The answer contained no request for trial by jury nor was one filed up to the date of trial by Government.

Following extensive pre-trial discovery, a pre-trial conference was held on October 23, 1964. At that time, the defendant Benjamin was very much involved in the litigation, vigorously opposing a motion by Collins to strike his defense of contributory negligence. On October 24, 1964 Benjamin filed a motion for summary judgment. Trial was to commence on the morning of October 27, 1964; that morning in chambers while the jury waited in the courtroom, Collins moved to dismiss with prejudice the action against all defendants except Government. All parties agreed to this dismissal, and the District Court entered an Order accordingly. The Court then advised Government for the first time that the case would be tried without a jury despite Government's protest that it was entitled to a jury by reason of its reliance upon defendant Benjamin's demand for a jury trial. That afternoon, prior to the commencement of the trial, Government filed with the Court a written "Motion for Trial by Jury". The motion was directed to the discretion of the Court pursuant to Rule 39(b) of the Federal Rules of Civil Procedure. It stressed the fact again that Government had relied on the timely demand for trial by jury made by the defendant Benjamin "whose defense was based on questions of law and fact substantially similar to those relied on by the Government". The Court denied Government's motion.

The trial lasted for four days. On December 21, 1964 the Court entered its Findings of Fact and Conclusions of Law. The Court found that "the defendant Government of the Virgin Islands was negligent"; that "defendant's acts and omissions were the proximate cause of plaintiff's injuries"; that "the plaintiff was not guilty of contributory negligence". On December 22, 1964 judgment was entered against Government in the sum of $550,000. This appeal followed.

Government on this appeal contends that it was entitled to a trial by jury in this action because (1) a timely demand for a jury had been made by a co-defendant on which it was entitled to rely, and (2) the Court in the proper exercise of its discretion should have granted its Rule 39(b) motion.²

In reply, Collins urges that (1) Government had no right to a trial by jury; (2) if it had such a right, it was waived by failure to make a timely demand for a jury; and (3) the District Court did not abuse its discretion in denying Government's motion pursuant to Rule 39(b) for a jury trial.³

We are of the opinion that Government is correct in its contention that it was entitled to a jury trial by virtue of the timely demand for such trial by its co-defendant Benjamin, and that the District Court erred in holding to the contrary. That being so, we do not reach Government's second contention that the District Court improperly exercised its discretion in denying Government's Rule 39(b) motion.

This must be said preliminarily with respect to Collins' threshold contention that Government, irrespective of all other considerations, had no right to a jury trial:

Government, like the states of the Union and the United States, is immune from suits in actions sounding in tort. This immunity is specifically provided by Act of Congress, 48 U.S.C.A. § 1541(b), which as here relevant, reads:

"* * * no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature constituted by this chapter and said section."

Government waived this immunity when it enacted Act No. 921. The question as to whether Government having waived this immunity is entitled to a jury trial is free of the impact of the Seventh Amendment to the Constitution⁴ since it is clear that a suit against the sovereign was not a suit at common law within the meaning of the Seventh Amendment. Rather the answer must be sought in well-established principles relating to the waiver of immunity by the sovereign. These may be stated as follows:

(1) "The Government cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. * * * If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the Government to the exercise of the privilege. Nothing more need be said on this subject." McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189 (1880). (emphasis supplied) (2) The grant of jurisdiction by the sovereign is an aid in determining the method of trial in the absence of an express provision. United States v. Pfitsch, 256 U.S. 547, 41 S.Ct. 569, 65 L.Ed. 1084 (1921); 5 Moore, Federal Practice ¶ 38.31(2), at 234 (2d ed. 1964).

Applying these principles to the instant case, we are of the opinion that the Government of the Virgin Islands intended to allow trial by jury in an action such as here brought by Collins. This is plainly indicated by the language of Act No. 921 which declared the terms of the waiver of immunity:

"Section 2. For the purpose of this Act and the adjudication of any such claim, the immunity of the Government to suit is hereby waived and Harvey B. Collins may proceed against the Government as in the case of any other defendant, subject to the same procedures and defenses except for the defense of immunity from suit or of the statute of limitations, the provisions of which are hereby expressly waived; * * *." (emphasis supplied)

Thus, "the forms of pleading and the rules of practice to be observed" in this suit are expressly stated to be the same as in the ordinary tort action between private litigants. In such an action it is hornbook law that the parties are...