Drake v. Treadwell Construction Company

• Decision Date: 15 February 1962
• Docket Number: No. 13591.,13591.
• Citation: 299 F.2d 789
• Parties: Joseph DRAKE, Plaintiff, v. TREADWELL CONSTRUCTION COMPANY, Defendant and Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

299 F.2d 789 (1962)

Joseph DRAKE, Plaintiff, v. TREADWELL CONSTRUCTION COMPANY, Defendant and Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant, Appellant.

No. 13591.

United States Court of Appeals Third Circuit.

Argued October 16, 1961.

Decided February 15, 1962.

Anthony L. Mondello, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., Hubert A. Teitelbaum, U. S. Atty., Pittsburgh, Pa., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Harold E. McCamey, Pittsburgh, Pa. (Dickie, McCamey, Chilcote & Robinson, Pittsburgh, Pa., Frederick T. M. Crowley, Washington, D. C., on the brief), for appellee.

Before KALODNER, HASTIE and GANEY, Circuit Judges.

HASTIE, Circuit Judge.

This litigation began as a diversity suit in which the plaintiff, Joseph Drake, an employee of the United States, sued the principal defendant, Treadwell Construction Co., for negligent injury suffered when a steel expansion tank, manufactured by Treadwell for the United States, exploded while Drake and others were testing ordnance at a government arsenal. Treadwell then brought the United States into the suit by filing a third-party claim against the government for indemnity or contribution.

The trial of the principal claim resulted in a finding that the tank had been negligently fabricated and a recovery of damages by Drake against Treadwell. On the third-party claim the court found that negligence by the United States was also a responsible cause of Drake's injury. Accordingly, judgment was entered on the third-party claim,

"* * * that the defendant, Treadwell Construction Company, and the third party defendant, United States of America, are joint tortfeasors and that the right of contribution exists in favor of the said defendant, Treadwell Construction Company, and against the United States of America, and the said Treadwell Construction Company may hereafter have judgment against the said United States of America for the amount of $180,000.00 which it has paid to the plaintiff, Joseph Drake, in excess of a sum of $90,000.00."

The United States has appealed, claiming, among other things, that this judgment on the third-party claim is invalid because of the immunity of the sovereign from suit.

We start with the basic rule that civil liability may not be imposed upon the sovereign except to the extent and in the manner to which it has consented. Seeking to avoid sovereign immunity, the third-party complaint alleges that the United States is liable under the Federal Tort Claims Act, 1946, 60 Stat. 812, 842-847, as reorganized and codified 28 U.S.C. §§ 1346(b), 1402(b), 2402 and 2674. The complainant relies upon United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, where the Supreme Court decided that the Federal Tort Claims Act, in addition to authorizing an injured person to sue the United States, permits a tort-feasor, sued for negligent injury, to maintain a third-party claim for contribution against the United States as a joint tort-feasor.

The Tort Claims Act was the only statute involved in Yellow Cab. This case is different because the plaintiff is a federal employee and was injured in the course of his employment. Admittedly, he is covered by and entitled to compensation under the Federal Employees' Compensation Act, as amended, 5 U.S.C.A. Ch. 15. Section 7(b), added to the Compensation Act by the Act of October 13, 1949, 63 Stat. 861, 5 U.S.C.A. § 757(b), reads in part as follows:

"(b) The liability of the United States or any of its instrumentalities under this Act or any extension thereof with respect to the injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States or such instrumentality, on account of such injury or death, in any direct judicial proceedings in a civil action or in admiralty, or by proceedings, whether administrative or judicial, under any other workmen\'s compensation law or under any Federal tort liability statute * * *."

On its face this subsection withdraws whatever consent the Tort Claims Act, considered alone, would otherwise give to the imposition of tort liability upon the United States on account of the injury of an employee covered by the Compensation Act, whether the claim is asserted in the interest of the injured employee or anyone else. Contribution required of a joint tort-feasor toward the satisfaction of a covered government employee's judgment in tort seems as clearly within the language of Section 7(b) as is total direct liability to the injured employee. Christie v. Powder Power Tool Corp., D.D.C.1954, 124 F.Supp. 693; cf. Smither & Co. v. Coles, 100 U.S.App. D.C. 68, 242 F.2d 220, cert. denied, 1957, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129; Underwood v. United States, 10th Cir. 1953, 207 F.2d 862.

Similar reasoning has led the Court of Appeals for the Ninth Circuit to the conclusion that, where a government employee has been injured in a collision between two negligently operated ships, one of them operated by the United States, the normal maritime rule of contribution cannot be invoked to impose upon the United States a duty to share with the other negligent party the burden of making the injured employee whole. United States v. Weyerhaeuser S. S. Co., 9th Cir. ...