Hill v. United States

• Decision Date: 17 October 1947
• Docket Number: Civil Action No. 811.
• Citation: 74 F. Supp. 129
• Parties: HILL et al. v. UNITED STATES.
• Court: U.S. District Court — Northern District of Texas

74 F. Supp. 129

HILL et al. v. UNITED STATES.

Civil Action No. 811.

District Court, N. D. Texas, Amarillo Division.

October 17, 1947.

Hazelwood & Richards, of Amarillo, Tex., for plaintiffs.

Frank B. Potter, U. S. Atty., and A. W. Christian, Asst. U. S. Atty., both of Fort Worth, Tex., for defendant.

DOOLEY, District Judge.

This suit comes under the Federal Tort Claims Act of 1946, 60 Stat. 843, Title 28 U.S.C.A. § 931.¹ The plaintiffs allege that an army truck driven by a soldier negligently collided with an automobile driven by one of the plaintiffs on a public highway. Three of the plaintiffs were in the automobile and each claims personal injuries sustained in the collision. The automobile is said to have been badly damaged. The Insurance Company plaintiff alleges a subrogation claim. The suit is to recover damages for personal injuries, also property loss, and to enforce the subrogation claim. The allegations of plaintiffs' complaint, so far as material here, are being taken as true for the purposes of this opinion.

Counsel for the Government filed a motion to dismiss the said subrogation claim on the ground that the Tort Claims Act does not authorize the maintenance of suits upon derivative claims, and that such claim is prohibited under the Anti-assignment Act, Title 31 U.S.C.A. § 203.²

The said insurance company had an automobile policy of indemnity insurance in force on the automobile in question at the time of the collision. The policy includes coverage for collision damage to the automobile and for medical, surgical, ambulance, hospital and nursing service, within a specified maximum limit, growing out of injuries sustained by occupants of the automobile in a collision. The insurer has paid its liability under said coverage terms of the policy. The plaintiffs include in their suit for damages the same loss and expenses specified in the coverage of the insurance policy. The said policy contains a provision, as follows:

"In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights."

Counsel for the Government have argued that the Tucker Act, Title 28 U.S.C.A. § 41(20),³ is a proper comparative statute for consideration in determining the relation of the Anti-assignment Act to claims arising under the Tort Claims Act. I do not think it is a strong parallel.

Under the Tort Claims Act, a claim for more than $1,000, as were the claims in this suit, is not presentable to any officer or agency of the Government for ascertainment and allowance, nor does the Court of Claims have any original jurisdiction of such claims, but only a special appellate jurisdiction, subject to the consent of all parties. These unique provisions place the present tort claims outside of the purview of the Anti-assignment Act. In Hobbs v. McLean, 117 U.S. 567, 6 S.Ct. 870, 873, 29 L.Ed. 940, the Court in speaking of the Anti-assignment Act, which was then in language as still retained in the present statute, with some later additions, said:

"Section 3477 31 U.S.C.A. § 203, it is clear, only refers to claims against the United States which can be presented by the claimant to some department or officer of the United States for payment, or may be prosecuted in the court of claims. The section simply forbids the assignment of such claims before their allowance, the ascertainment of the amount due thereon, and the issue of a warrant for their payment."

The purpose of that statute is to restrict voluntary assignments or powers of attorney for payment of claims against the Government, so as to better keep a steady status thereof, and in that way, for the benefit of the Government, facilitate the undistracted consideration, determination and safe payment of such claims. It is altogether for the protection of the Government. Martin v. National Surety Co., 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822; Goodman v. Niblack, 102 U.S. 556, 26 L.Ed. 229; Bailey v. United States, 109 U.S. 432, 3 S.Ct. 272, 27 L.Ed. 988. The reason of the law does not hold good in the present circumstances. There is no controversy between the plaintiffs in this suit about the subrogation claim of the insurer. The other plaintiffs do not contest that claim. The insurance policy contains an express covenant of subrogation. But even without any express subrogation terms in the policy, the insurer would have an equitable right of subrogation by operation of law. The Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788; The Atlas, 93 U.S. 302, 23 L.Ed. 863; Mobile & Montgomery R. Co. v. Jurey & Gillis, 111 U.S. 584, 4 S.Ct. 566, 28 L.Ed. 527. The Supreme Court in Houston v. Ormes, 252 U.S. 469, 40 S.Ct. 369, 370, 64 L.Ed. 667, says that in the enactment of said law the object of Congress "was to protect the government, not the claimant; and it does not stand in the way of giving effect to an assignment by operation of law after the claim has been allowed."

In this suit any recovery liquidating the tort claims, and enforcement of the subrogation claim, would be simultaneous, and with all parties before the court the Government would be fully protected under the judgment. The amount of its liability would remain unchanged. Clearly the Government, on the level of an individual litigant, irrespective of the subrogation claim, cannot take advantage of the payments made by the insurer to the other plaintiffs, on the theory that said payments diminish pro tanto what would otherwise be the amount of the Government's liability to the plaintiffs. Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co., 139 U.S. 79, 11 S.Ct. 490, 35 L.Ed. 97; United States v. American Tobacco Co., 166 U.S. 468, 17 S.Ct. 619, 41 L.Ed. 1081; Texas & P. Ry. Co. v. Levi & Bro., 59 Tex. 674. The facts here fall neither within the actual letter, nor certainly the spirit, of the Anti-Assignment Act. The law must be read "according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending its operation." Moore v. United States, 249 U.S. 487, 39 S.Ct. 322, 63 L.Ed. 721. Still more to the point, the Supreme Court in Martin v. National Surety Co., supra, says 300 U.S. 588, 57 S.Ct. 534:

"The fund is in court to be distributed to rival claimants, with the Government discharged irrespective of the outcome. * * * A transfer of the fund after payment is perfected is of no concern to anyone except the parties to the transaction, and this quite irrespective of the time of the assignment or the manner of its making."

See also Freedman's Savings & Trust Co. v. Shepherd, 127 U.S. 494, 8 S.Ct. 1250, 32 L.Ed. 163.

Another reason against the motion is rooted in the very language of the Tort Claims Act. It provides that within the bounds of the Act the Government is liable "to the same claimants, * * * and to the same extent" as a private person under like circumstances, according to the law of the State. The relevant parts of the statute are fully set out in foot notes 1 and 4 hereto. Under the law of Texas, if the defendant in this suit were an individual instead of the Government, the subrogation claim in question could be maintained. Hartford Fire Insurance Co. v. Galveston H. & S. A. Ry. Co., Tex.Com.App., 239 S.W. 919; Magnolia Pipe Line Co. v. Security Union Insurance Co., Tex.Civ.App., 37 S.W.2d 1062; Wilson v. G. A. Stowers Furniture Co., Tex.Civ.App., 297 S.W. 352; F. H. Vahlsing, Inc., v. Hartford Fire Insurance Co., Tex.Civ.App., 108 S.W.2d 947; Sims v. Woods, Tex.Civ.App., 130 S.W.2d 424. The Government is likewise suable as to this subrogation claim. This conclusion does not raise any inconsistency with the Anti-assignment Act, but at most only subordinates that Act to the rather plain and specific language of the later Tort Claims Act.

Some other substantiation may be pointed out from the standpoint of comparative statutes. The two principal statutes waiving the sovereign immunity of the national Government in suits on tort, contain very similar provisions in putting the Government on a parity with a private litigant. These...