Donham v. U.S.

• Decision Date: 04 June 1976
• Docket Number: No. 75-1516,75-1516
• Citation: 536 F.2d 765
• Parties: John C. DONHAM, Plaintiff, v. UNITED STATES of America et al., Defendants. STENCEL AERO ENGINEERING CORP., Cross-Plaintiff-Appellant, v. UNITED STATES of America, Cross-Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 765

536 F.2d 765

John C. DONHAM, Plaintiff, v. UNITED STATES of America et al., Defendants.

STENCEL AERO ENGINEERING CORP., Cross-Plaintiff-Appellant, v. UNITED STATES of America, Cross-Defendant-Appellee.

No. 75-1516.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 11, 1976.

Decided June 4, 1976.

Thomas J. Whalen, Condon & Forsyth, New York City, for appellant; Stephen R. Stegich, III, New York City, William A. Richter and Arthur L. Smith, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, Mo., on brief.

Thomas S. Martin, Atty., Civil Div., U. S. Dept. of Justice, Washington, D. C., for appellee; Rex E. Lee, Asst. Atty. Gen., Jefferson City, Mo., Donald J. Stohr, U. S. Atty. (Barry A. Short, U. S. Atty., effective May 15, 1976), St. Louis, Mo., and William Kanter, Atty., Dept. of Justice, Washington, D. C., on brief.

Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and VAN PELT, Senior District Judge. ^*

BRIGHT, Circuit Judge.

This appeal presents an important issue under the Federal Tort Claims Act (FTCA): whether the United States which is immune to liability for its negligent conduct producing injury and damages to an on-duty serviceman may, nevertheless, be obligated indirectly to pay the amount of such damages through a claim for tort indemnity asserted by a third party who becomes liable for tort damages to that serviceman. We answer that issue in the negative.

Captain John C. Donham, an Air Force Reserve pilot assigned for training to the Missouri Air National Guard, while flying over Eastern Missouri, ejected from his military aircraft under emergency conditions. As a result of the malfunctioning of his aircraft's "egress life support system," he claims to have sustained serious and permanent injuries. This incident gives rise to the present appeal. Stencel Aero Engineering Corporation (Stencel) manufactured this system. Donham brought an action to recover for his bodily injuries, and he named as defendants, Stencel, the United States, and Mills Manufacturing Corporation. Stencel answered the complaint denying any liability and instituted a cross-claim against the United States for total indemnity.

The United States moved for judgment on the pleadings against both Captain Donham and Stencel. In response to this motion, the district court dismissed Captain Donham's action against the United States on grounds of sovereign immunity, relying upon Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966). Relying on these same cases, the district court also dismissed Stencel's cross-claim for indemnity. The court certified its disposition of Stencel's cross-claim as a final appealable judgment under Rule 54(b), Fed.R.Civ.P., and Stencel now appeals that judgment. ¹

Although the doctrine of Feres v. United States, supra, precludes Captain Donham from proceeding directly against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674, that doctrine, according to Stencel's contention, does not preclude Stencel as a nonmilitary third party from obtaining restitution by way of indemnity against the United States for any damages which it might be compelled to pay to Donham. Stencel alleges that it manufactured and constructed the ejection system according to specifications and requirements provided by the United States and, in part, using components supplied by the United States. ² After manufacture, Stencel alleges that the United States took custody and control of the egress system and assumed responsibility to repair and maintain the system and to warn and instruct government employees in its proper use.

Stencel alleges that these facts imposed an independent duty upon the United States to assure Stencel that the system was not defective or inherently dangerous. Stencel argues that should it suffer any liability because of the Government's breach of its duty, it should recover indemnification in full. Further, Stencel alleges that if Donham's injuries resulted from negligence, the Government's conduct constituted active negligence but Stencel's improper conduct, if any, constituted passive negligence. Stencel argues that such a disparity of fault gives rise to a right of indemnity in favor of Stencel. Stencel asserts, appropriately, that judgment on the pleadings for a dismissal can be sustained only if it is clear beyond doubt that Stencel could prove no set of facts in support of its indemnity claims, entitling it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974).

Stencel relies upon the Supreme Court's statement that through the FTCA the United States has waived its immunity from tort suits in "sweeping language." United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 95 L.Ed. 523 (1951). ³ Generally, the United States subjects itself to suit under the FTCA to the same extent as a private individual under similar circumstances in accordance with the law of the state where the tort occurred. Stencel cites several Missouri cases for the proposition that indemnity relief would be available to it under state law. Feinstein v. Edward Livingston & Sons, Inc., 457 S.W.2d 789 (Mo.1970); Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1 (Mo.1960); Western Casualty & Surety Co. v. Shell Oil Co., 413 S.W.2d 550 (Mo.App.1967). While the United States denies that Missouri law authorizes indemnity under similar circumstances, it asserts as its principal defense that federal law applies and that a claim for damages sustained by a serviceman on active duty, whether asserted directly by that serviceman or indirectly by a third party by way of indemnity, is barred by application of the doctrine of the Feres case.

I. The Scope of the Federal Government's Waiver of Sovereign Immunity Is a Question of Federal Law.

The Federal Tort Claims Act substantially changed prior law. First, it waived the Government's sovereign immunity to most tort actions and provided for suits against the United States in the federal district courts. Second, it adopted the substantive law of the state in which the tort occurred as the standard of conduct to assess the Government's liability. Since, as we have previously observed, the scope of the waiver of sovereign immunity is quite broad, federal courts have usually focused upon interpretation and application of state law in resolving claims for indemnity. ⁴

However, the extent of the waiver remains an important consideration. Without a waiver of sovereign immunity applying to the claim asserted, the claim against the Government must fall. Where a question arises as to the extent of the waiver of sovereign immunity under the FTCA, the issue "is a question of federal law, separate and prior to the question of * * * liability under state law." See Galimi v. Jetco., Inc., 514 F.2d 949, 952 (2d Cir. 1975); Travelers Insurance Co. v. United States, 493 F.2d 881, 883 (3d Cir. 1974).

II. The United States Has Not Consented Under the Federal Tort Claims Act to be Sued for Indemnity by a Government Contractor Who is Liable to a Serviceman for Injuries Occurring on Active Duty.

Where the United States authorizes suit under the FTCA, its liability is determined by the law of the place where the act or omission occurred to the same extent as a private defendant. 28 U.S.C. § 1346(b). That the Act incorporates such state standards is a matter "not without significance" in determining "whether the Act should be construed to apply * * * ." Feres v. United States, supra, 340 U.S. at 142, 71 S.Ct. at 157. Stencel's claim against the United States rests upon two basic relationships first, the military relationship between Captain Donham and the United States, and second, the military-contractual relationship between the United States and Stencel. In order to justify Stencel's action against the United States, we must infer that Congress in the FTCA intended that state law apply to situations arising out of these two relationships.

Each of these relationships long has been held to be governed exclusively by federal law. In Feres, the Supreme Court reaffirmed the long-recognized rule that the "relationship between the Government and members of its armed forces is 'distinctively federal in character' * * * ." 340 U.S. at 143, 71 S.Ct. at 158, quoting United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947). In Standard Oil, the court emphasized that

(t)o whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them or nonfederal governmental agencies, the scope, nature, legal incidents and consequences of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority. (Id. at 305-06, 67 S.Ct. at 1607.)

Likewise, it is firmly established that the rights and duties of the United States arising pursuant to its contractual obligations primarily are governed by federal common law. Ivanhoe Irrigation District v. McCracken,357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1314 (1958); see Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Cf. Whelan v. Penn Central Co., 503 F.2d 886 (2d Cir. 1974).

Thus, both essential aspects of the current case have long been committed to federal law. To conclude that the general language of the FTCA makes applicable the vagaries of state law would surely be, in the language of Feres, to "visit the Government with novel and unprecedented liabilities." 340 U.S. at 142, 71 S.Ct. at 157. Again, in the language of Feres, "(w)e cannot impute to Congress such a radical departure from established law in the absence of express congressional command." Id. at 146, 71 S.Ct. at 159.

The rationale of the Court in Feres is, we...