Gilman v. United States, 13305.

• Decision Date: 03 August 1953
• Docket Number: No. 13305.,13305.
• Citation: 206 F.2d 846
• Parties: GILMAN v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F.2d 846 (1953)

GILMAN v. UNITED STATES et al.

No. 13305.

United States Court of Appeals Ninth Circuit.

August 3, 1953.

Parker, Stanbury, Reese & McGee, Wm. C. Wetherbee, Los Angeles, Cal., for appellant.

Warren E. Burger, Asst. Atty. Gen., Walter S. Binns, U. S. Atty., Clyde C. Downing, Reuben Rosensweig, Asst. U. S. Attys., Los Angeles, Cal., Samuel D. Slade, T. S. L. Perlman, Attys., Department of Justice, Washington, D. C., for appellee.

Before POPE, Circuit Judge, and McCORMICK and HARRISON, District Judges.

POPE, Circuit Judge.

The question presented by this appeal is whether the United States, after suffering judgment against it under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), for injuries arising from the negligent operation of a government automobile, may recover, by way of indemnity, the amount of such judgment from its employee, the driver who was guilty of the negligence which caused the injuries.

Appellee Darnell brought the original action against the United States to recover damages for injuries arising when his automobile collided with a government car driven by the appellant who was an employee of the United States Coast and Geodetic Survey. The court granted the Government's motion under Rule 14(a) of the Rules of Civil Procedure, 28 U.S.C.A., for leave to implead the appellant as a third party defendant, and thereupon a third party complaint was filed asking that if the United States should be held liable it should have indemnity against appellant for the full amount of its liability. Appellant's motion to dismiss the third party complaint was denied and upon trial the district court found that the plaintiff's injuries were caused solely by the negligence of the appellant acting within the scope of his employment. Accordingly, the court gave judgment against the United States for $5500. Upon the same day it gave judgment against the appellant and in favor of the United States in the same amount of $5500. From the latter judgment this appeal is taken.

Although the judgment in favor of the Government and against the appellant was entered in an action brought under the Tort Claims Act, the cause of action which the Government asserted was not based upon any provision of that Act. It was asserted under the common law rule that under circumstances similar to those here present, a private employer may recover from his negligent employee the amount the employer has been required to pay under a judgment in favor of a third person arising from damage caused by the employee's negligent act, where judgment ran against the employer solely by reason of the doctrine of respondeat superior. The trial court pointed out that this rule is well established in California where the accident occurred, citing Myers v. Tranquility Irrigation District, 26 Cal.App.2d 385, 79 P.2d 419, and Johnston v. City of San Fernando, 35 Cal.App.2d 244, 95 P.2d 147, and held that the Government should have the same right under the same rule.

The rule is one generally recognized and enforced by both state and federal courts. See Prosser on Torts, p. 1114, Restatement of the Law of Agency, § 401 comment c; Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712. The appellant contends, however, that § 2676 of Title 28, which was enacted as a part of the Federal Tort Claims Act, discloses that it was the intention of Congress to give the Government employee certain benefits under the Act, and that the intention so expressed in this section is inconsistent with any possible holding that the employee might be made liable for indemnity to the United States. That section provides: "The judgment in an action under Section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim."

The Government in reply to this contention points out that the language of the section quoted is to the effect that the judgment is to be a bar to any action by the claimant; that this has no bearing on anything except the rights of injured claimants, and has no impact upon the Government's rights against its employees; therefore, there is no reason why the general rule should not be available to the United States, particularly in the absence of some express enactment to the contrary. In this connection it points to the statement in United States v. Yellow Cab Co., 340 U.S. 543, 551, 71 S.Ct. 399, 405, 95 L.Ed. 523: "Of course there is no immunity from suit by the Government to collect claims for contribution due it from its joint tortfeasors. The Government should be able to enforce this right in a federal court not only in a separate action but by impleading the joint tort-feasor as a third-party defendant."

We think that the answer to these several contentions of the parties is to be found through an examination of the basis for the rule stated above which permits the employer to recover indemnity from the negligent employee. That basis is, we think, correctly stated in the Government's brief: "The action for indemnity is quasi-contractual in theory, its rationale being that the defendant is unjustly enriched by the plaintiff's payment of the injured party's claim." Compare Restatement of the Law of Restitution, under the topic "Discharge by one person of duty also owed by another", (p. 330): "Where the payor has given something in the discharge of a duty to which the other is subject, his right to indemnity or contribution therefor is based upon the fact that he has thereby conferred a benefit upon the other."

Since the actual wrongdoer in such cases is the employee, the employer, who has been vicariously liable and who in consequence has been required to pay damages to the third person, in so doing has paid moneys which in equity and good conscience the person actually guilty of negligence ought to pay. Thus the employer has conferred a benefit upon the employee and this gives rise to an obligation which the law implies. The employer's action is one which in the words of Lord Mansfield, "lies only for money which ex aequo et bono, the defendant ought to refund. * * *" Moses v. Macferlan, 2 Burr. 1005, 1010. As stated by Woodward, The Law of Quasi-Contracts, § 259, "In such cases, the obligation may well be rested upon quasi-contractual principles, for in so far as one tort-feasor pays what in equity and good conscience another tort-feasor ought to pay, the latter receives a benefit at the expense of the former, the retention of which is unjust."¹

When we inquire whether a rule dependant upon this rationale should apply in the instant case, we are at once confronted by the circumstance that the moment judgment was entered against the Government,² then by virtue of § 2676, supra, the employee was no longer primarily answerable to the claimant, — he was not answerable at all. Therefore, when or if the Government paid the judgment against it, it was not paying a sum which the employee ought to have paid, for, as we have seen, any obligation on his part was completely wiped out.

It is therefore our conclusion that since any legal basis for a claim of indemnity is here lacking, the Government was not entitled to have judgment against the appellant. It is thus apparent that we do not deal with any question as to whether Section 2676 releases the Government's claim against its employee. Such is not the question here, but rather the inquiry is, whether, in the circumstances of this case any cause of action ever arose in favor of the Government and against its employee. Since the right of indemnity here asserted arises, in the case of employers generally, only by quasi-contract, through the payment of that which the employee himself, in equity and good conscience should have paid, it is manifest that here, where the employee owes no such duty the circumstances of the necessary unjust enrichment do not exist, and no cause of action ever arose in favor of the Government.

While the legislative history of the Tort Claims Act is in no sense controlling in an attempt to arrive at intended consequences of Section 2676, yet its indications are not at variance with the results here arrived at.³

We think it is clear from what was said in United States v. Standard Oil Co., 332 U.S. 301, 305, 67 S.Ct. 1604, 91 L.Ed. 2067, that the question of the duty owed by a Government employee to the Government is one to be determined by federal and not by state law. The cause of action which the Government here sought to enforce was not one under the Federal Tort Claims Act which adopts local law for the purpose of defining the Government's tort liability.⁴ But regardless of whether state or federal law be here applied, § 2676 cuts the ground from under the Government's claim for indemnity.

It is to be noted that in using the language quoted supra from United States v. Yellow Cab Co., the Supreme Court was not dealing with a situation involving any possible application of § 2676. The court was considering the question of contribution as between the United States and a stranger tort-feasor.

In view of what we have here said we find it unnecessary to consider appellant's further contention that the Government's claim should be denied for the same reasons which prompted judgment against it in United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067.

Accordingly, the judgment is reversed and the cause remanded with directions to enter judgment for appellant.

HARRISON, District Judge (dissenting).

I am of the opinion that Rule 14, Federal Rules of Civil Procedure should apply in tort claims actions. The Federal Tort Claims Act waives the government's immunity from suit but nowhere does the government waive its right to sue.

The majority opinion concedes that under the common law and under the law of California, a private employer may recover from his...