Holcombe v. United States

• Decision Date: 28 August 1959
• Docket Number: No. 2330.,2330.
• Citation: 176 F. Supp. 297
• Parties: Richard A. HOLCOMBE, Jr., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

176 F. Supp. 297

Richard A. HOLCOMBE, Jr., Plaintiff, v. UNITED STATES of America, Defendant.

No. 2330.

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

August 28, 1959.

Howard I. Legum, Fine, Fine, Legum, Weinberg & Schwan, Norfolk, Va., for plaintiff.

W. Farley Powers, Jr., Asst. U. S. Atty., Norfolk, Va., for defendant.

WALTER E. HOFFMAN, District Judge.

This action is again before the Court following remand and vacation of judgment previously entered for defendant. Holcombe v. United States, 4 Cir., 259 F.2d 505. No additional evidence has been presented; counsel having stipulated that the case should be determined on the former record. As the facts are sufficiently stated in the prior opinion of this Court (unreported) and in the per curiam opinion of the appellate court (259 F.2d 505), they will not be repeated.

The remaining factual items which require consideration are (1) the defense of contributory negligence, and (2) the ascertainment of damages. The fair value of plaintiff's automobile at the time of the accident, after making an allowance for salvage, is $1,115. The cost of repairing other personal property contained within the automobile and the depreciated value of articles lost or damaged beyond repair is fixed by the Court at $210. The total loss sustained by plaintiff is determined to be $1,325.

The defense of contributory negligence is not worthy of discussion. The mere fact that Miss Roller, to whom plaintiff entrusted his automobile, was, to a limited extent, physically handicapped due to a flail of her right elbow, affords no suggestion that plaintiff was guilty of contributory negligence. The short answer to this contention is that Miss Roller was duly licensed to operate a motor vehicle according to the laws of Maryland. Assuming that plaintiff had knowledge of this physical defect, it is not shown that he had any knowledge as to the extent, if any, that such physical disability impaired her ability to operate a motor vehicle. As a licensed operator with full possession of all apparent faculties, plaintiff had the right to assume that Miss Roller was physically capable of operating an automobile in a normal manner. The negligence of Miss Roller cannot be attributed in whole or in part to the plaintiff.

We turn then to the crucial question in this case, which is:

May a civilian employee of a non-appropriated fund instrumentality of the Navy Department recover damages from the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for a property damage loss occasioned by the negligence of another civilian employee of the same non-appropriated fund instrumentality, arising within the scope of their respective duties?

As this Court interprets the opinion of the appellate court in Holcombe v. United States, supra, it is a foregone conclusion that Miss Roller, at the time and place in question, was acting within the scope of her employment under the Maryland law.

The Government contends that plaintiff is precluded from recovering under the fellow-servant doctrine as applied in Maryland. McCall's Ferry Power Co. v. Price, 108 Md. 96, 69 A. 832. While the doctrine apparently has not been repudiated in Maryland, it has been sharply limited. General Automobile Owners' Ass'n v. State, 154 Md. 204, 140 A. 48; County Com'rs of Dorchester County v. Wright, 138 Md. 577, 114 A. 573; Price v. Miller, 165 Md. 578, 169 A. 800. And in 2 Harper & James, Torts, (1956 Ed.), p. 1173, it is said:

"Perhaps the fellow servant rule, once applied in master and servant cases, represented the assumption of the risks from another's future careless conduct. Perhaps, however, that rule more truly represented an unwillingness to extend vicarious liability to cases arising within the employer's economic family. At any rate the question is no longer important for the rule is dead."

Even though we assume arguendo that the fellow servant doctrine is still alive in Maryland, the limitations placed upon its application lead to the belief that, in the absence of a controlling Maryland decision, the doctrine is not extended to claims for property damage. The historical background of the fellow servant doctrine is found in 35 Am.Jur., Master and Servant, § 336. The only authority distinguishing between property damage and personal injury claims as applied to the fellow servant doctrine is Setzkorn v. Buffalo, 126 Misc. 858, 215 N.Y.S. 584, affirmed 219 App.Div. 416, 219 N.Y.S. 351, affirmed per curiam 246 N.Y. 605, 159 N.E. 670, in which it was said in the lower court (126 Misc. 858, 215 N.Y. S. 584, 586):

"There is no established public policy and no logical reason apparent why the fellow-servant rule should be extended to excuse a master whose servant, while actually in service, negligently damages the property of a fellow servant. It is not one of the risks contemplated by the master or servant, nor compensated for in increased wages. So far as concerns the property of a fellow servant that is being used in the service of the master as a convenience to the fellow servant, it is as though his property were that of a stranger, to whom the master would be liable for the negligent act of his servant."

To the same effect, see 56 C.J.S. Master and Servant § 322(a), p. 1080. Holding that, in the absence of a controlling state decision, the fellow servant rule affords no defense to a claim for property damage, we pass to the remaining inquiries.

Defendant insists that (1) the United States has not waived immunity from liability for torts of civilian employees of non-appropriated fund instrumentalities such as, in this case, the Commissioned Officers' Club, and (2) the status of the plaintiff, Holcombe, as a civilian employee of the non-appropriated fund instrumentality is such that he is precluded from recovery. As applied to the facts of this case, the questions are essentially of first impression.

Both plaintiff and defendant concede that the individuals, Holcombe and Miss Roller, were federal employees in their respective capacities as employees of a non-appropriated fund instrumentality. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611; Daniels v. Chanute Air Force Base Exchange, D.C.Ill., 125 F.Supp. 920. Defendant's brief suggests that the holding in Faleni v. United States, D.C.E.D.N.Y., 125 F.Supp. 630, is erroneous to the extent that it ignores the fact that an employee of a non-appropriated fund instrumentality is a federal employee. Indeed, the Act of June 19, 1952, 66 Stat. 138, 5 U.S.C.A. § 150k, expressly excepts civilian employees of non-appropriated fund instrumentalities for the purpose of any laws administered by the Civil Service Commission or the provisions of the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., but specifically provides that "the status of these nonappropriated fund activities as Federal instrumentalities shall not be affected." With this background it is clear that Congress now recognizes civilian employees of non-appropriated fund instrumentalities as federal employees, and this is further evidenced by § 2 of the Act of June 19, 1952, 5 U.S.C.A. § 150k-1, which requires these instrumentalities to provide their civilian employees, by insurance or otherwise, with compensation for death or disability incurred in the course of employment in lieu of the benefits under the Federal Employees' Compensation Act.¹

In considering the status of plaintiff as a civilian employee of a non-appropriated fund instrumentality in maintaining an action against the United States under the Federal Tort Claims Act to recover damages for the loss of personal property occasioned by the negligence of a Government employee acting within the scope of employment, we must look to the statute, the basic purposes of the Act as disclosed by the authorities, the intent of Congress, and such remedies as may be available to the plaintiff without resort to the Act. The defendant relies upon Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051; Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152; Lewis v. United States, 89 U.S.App.D.C. 21, 190 F.2d 22, certiorari denied 342 U.S. 869, 72 S.Ct. 110, 96 L.Ed. 653; Aubrey v. United States, 103 U.S.App.D.C. 65, 254 F.2d 768; United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139, and other related cases.² These authorities, while persuasive, may be generally classified as follows:

(1) Where the plaintiff is a soldier or federally-employed policeman, on active duty at the time and thereby subject to military or military-like discipline, he cannot recover under the Federal Tort Claims Act for personal injury or property damage as a result of activity "incident to" his service. The underlying theory in this type of case is that, in part at least, there can be no "like circumstances" where the United States, if a private person, would be liable. As was said in United States v. Brown, supra, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139:

"The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character."

(2) Where the plaintiff has available other "simple and certain" statutory relief which is a part of the whole scheme of relief available against the Government, either in cases of personal injury or property damage. Feres v. United States, supra, 340 U.S. at page 144, 71 S.Ct. at page 158.

The Johansen case was an action under the Public Vessels Act, 46 U.S.C.A. § 781 et seq., for damages sustained as a civilian carpenter aboard an Army transport ship. Libellant had received compensation for his injury under the Federal Employees'...