Drummond v. United States, Civil Action No. 757.

• Decision Date: 16 July 1948
• Docket Number: Civil Action No. 757.
• Citation: 78 F. Supp. 730
• Parties: DRUMMOND v. UNITED STATES et al.
• Court: U.S. District Court — Eastern District of Virginia

78 F. Supp. 730

DRUMMOND v.UNITED STATES et al.

Civil Action No. 757.

District Court, E. D. Virginia, Norfolk Division.

July 16, 1948.

Walter E. Hoffman of Breeden & Hoffman, all of Norfolk, Va., for plaintiff.

John P. Harper, Asst. U. S. Atty., of Norfolk, Va. (George R. Humrickhouse, U. S. Atty., of Richmond, Va., of counsel) for the United States.

BRYAN, District Judge.

The United States moves to dismiss this action brought under the Federal Tort Claims Act, Public Law 601, 79th Congress, C. 753, 2nd Session, approved August 2, 1946, 28 U.S.C.A. § 921 et seq., upon the ground that other persons, alleged as joint tortfeasors, have been made partiesdefendant with the United States.

Thus is squarely presented the question whether the Act permits a plaintiff in such an action to join a co-defendant with the United States without the latter's consent.The Court holds that it does not.

Nowhere in the statute does the Congress manifest an intent to allow the claimant to embroil the United States in litigation involving the interests and defenses of other partydefendants.

I.Its legislative history records just the contrary.

The Committee on the Judiciary of the House of Representatives in its Report, No. 1287, dated November 26, 1945, at the 79th Congress, 1st Session, recommended the passage of H.R. 187 allowing tort actions against the United States and containing almost the identical provisions which later became law as the Federal Tort Claims Act.On p. 5 the Report states:

"It is intended that the district courts in exercising jurisdiction under this title shall exercise essentially the same type of jurisdiction as districts 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)28 U.S.C.A. § 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;Waite v. United States, (1922), 57 Ct.Cl. 546;Jackson v. United States, (1891), 27 Ct.Cl. 74, 84.The phrase `as a court of claims' in section 301 of the Senate bill was deleted as surplusage."(Italics applied in the text)

The Act was meant to transfer from the appropriate congressional committees to the courts the adjudication of tort claims against the Government.The committees had before them only the United States as the defendant; the courts were given no fuller field of parties.

II.The Act's terms imply no right of joinder against the Government's will.In sec. 410,28 U.S.C.A. § 931, the clause "under circumstances where the United States, if a private person" and the phrase "under like circumstances" refer to jurisdiction of the claim and liability for the claim, and not to the susceptibility of a private person or individual to be made a several or joint co-defendant, or indeed to the many other incidents of litigation to which a citizen-defendant may be subjected.

As appears from the congressional report and from the terms of section 411,28 U.S.C.A. § 932, the Act is tied tightly to the Tucker Act, 28 U.S.C.A. § 41(20), and to the Court of Claims acts, 28 U.S.C.A. § 250(1) et seq., both of which have been held to exclude joinder.Vide: United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 771, 85 L.Ed. 1058, discussed later.Highly significant in its construction is the express incorporation by the Tort Claims Act, in sec. 411, of specific sections of the statutes governing the proceedings in the Court of Claims and the proceedings under the Tucker Act.Examination of each of these sections will reveal that the adoption of the substantive law and of the procedure of the Court of Claims is far more comprehensive, and the parallel is much closer, than the subject-references in sec. 411.

The Congress has thus emphatically analogized the jurisdiction under the Tort Claims Act with that in the Court of Claims and under the Tucker Act.

On the other hand, its reference to the Federal Rules of Civil Procedure,28 U.S. C.A.followingsection 723c, would seem of no especial importance, because they would doubtlessly have applied without mention, just as they did to the Tucker Act procedure, United States v. Sherwood, supra.But nothing in them "authorizes the maintenance of any suit against the United States to which it has not otherwise consented."So the Rules could not give the right of joinder under the Federal Tort Claims Act, as that would be creating a suit to which the United States has not consented.United States v. Sherwood, supra.

The Sherwood Case did not reject joinder of defendants under the Tucker Act solely because of the law's limiting phrase of "concurrent with the Court of Claims" in vesting jurisdiction in the District courts.A secondary but nevertheless important reason of the decision was "the embarrassments which would attend the defense of suits" in which the rights and liabilities of other defendants were also to be fixed.Surely that reasoning is equally cogent to deny joinder of defendants under the Federal Tort Claims Act.

For the joinder it is argued that it would give jurisdiction for the play of the doctrine of contribution.The short answer is that the United States has not consented in the Act to be subjected to contribution, whether or not the laws of the particular State allow it.Save in admiralty, contribution, unlike subrogation, is not part of the original claim or tort.It is an adjustment between defendants, independent and separate from the plaintiff's claim, and rooting from principles of equity, not from the principles of tort-liability.The Act does not empower the courts to enforce, nor does the Government waive its immunity to, a suit grounded on so different a theory of liability.

For the same reason the United States could not be impleaded as a defendant under the third party practice to enforce contribution.Whether the United States, with its unlimited right to sue a citizen (a right which is...