Howey v. Yellow Cab Co., 9966

• Decision Date: 27 April 1950
• Docket Number: 9967.,No. 9966,9966
• Citation: 181 F.2d 967
• Parties: HOWEY et al. v. YELLOW CAB CO. (UNITED STATES, third-party defendant, appellant). GUTMANN et al. v. YELLOW CAB CO. (UNITED STATES, third-party defendant, appellant).
• Court: U.S. Court of Appeals — Third Circuit

181 F.2d 967 (1950)

HOWEY et al. v.YELLOW CAB CO. (UNITED STATES, third-party defendant, appellant). GUTMANN et al. v.YELLOW CAB CO. (UNITED STATES, third-party defendant, appellant).

Nos. 9966, 9967.

United States Court of Appeals Third Circuit.

Argued December 6, 1949.

Decided April 27, 1950.

Walter A. Gay, Jr., Philadelphia, Pa. (Gerald A. Gleeson, United States Attorney, Philadelphia, Pa., on the brief), for appellant.

James J. Leyden, Philadelphia, Pa.(Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel, on the brief), for Yellow Cab Co.

Before BIGGS, Chief Judge, and O'CONNELL and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

There are two appeals at bar.They can be disposed of appropriately in one opinion.Two suits were brought in the court below because the Gutmanns and the Howeys, the original plaintiffs, riding together as passengers, were injured in a collision which took place in Philadelphia on December 1, 1946 between a taxicab operated by Yellow Cab Company, the original defendant and the third-partyplaintiff, and a mail truck operated by an employee of the United States, the third-party defendant.The Gutmanns and the Howeys sued Yellow Cab Company in the two suits referred to, jurisdiction being based on diversity and requisite amount.Thereafter, Yellow Cab filed a third-party complaint in each suit seeking to enforce contribution from the United States.¹SeeRule 14(a),Federal Rules of Civil Procedure,28 U.S. C.A.

The United States, as third-party defendant, filed a motion to dismiss each suit on the ground that the Federal Tort Claims Act²"does not authorize the maintenance of suits upon derivative claims."These motions were denied and the United States then filed answers.The cases were consolidated for trial and evidence was presented by the plaintiffs, the original defendant and by the third-party defendant.The court below found Yellow Cab Company and the United States both guilty of negligence,³ gave judgments against Yellow Cab in favor of the Gutmanns in the amount of $5,800, in favor of the Howeys in the sum of $2,000, and ordered one-half of the respective amounts to be paid by the United States by way of contribution.The United States then moved to set aside the verdicts on the same ground theretofore asserted, viz., that the F.T.C.A. did not authorize "derivative" suits against the United States.The District Court decided that the third-party actions could be maintained⁴ and overruled the motions.The United States has appealed.

The United States in its briefs and argument in this court has treated the questions involved as if they were those only of joinder, i. e., as if the issue were: Does the F.T.C.A. permit the United States to be joined with Yellow Cab Company as a partydefendant?In the court below, however, at least by way of pleading, emphasis seems to have been laid by the United States on the question as to whether actions for contribution, such as those asserted here against the United States, can be maintained under the applicable Pennsylvania statute, 12 P.S.Pa. § 2081.We will discuss the cases in the first instance as if the primary issue were one of joinder and then endeavor to dispose of the questions presented by the pending actions treating them as, what they in reality are, suits for contribution.

The primary question on the joinder phase of the appeals can be phrased as follows: Did the F.T.C.A. authorize joinder of the United States with another partydefendant or did the Act only authorize suits brought against the United States as the sole or single defendant?Carefully balancing the language of the statute some courts have held that the United States may be joined with another defendant or defendants.See for exampleEnglehardt v. United States, D.Md., 69 F.Supp. 451.Subrogation against the United States also has been permitted.SeeUnited States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, referred to hereinafter, and the pertinent cases cited therein.Other courts have taken the view that the F.T.C.A. authorized suits against the United States only when it was the sole defendant, basing their conclusions in large part on legislative history.SeeDrummond v. United States, E. D.Va., 78 F.Supp. 730andUarte v. United States, S.D.Cal., 7 F.R.D. 705.⁵

At the time of the occurrence of the accident the provisions of revised Title 28 United States Code Annotated, were not in effect, the effective date of revised title being September 1, 1948.SeeSection 38 of the Act ofJune 25, 1948, c. 646, 62 Stat. 992, 28 U.S.C.A. note preceding section 1.The complaint was filed in the Gutmann case (Civil ActionNo. 7715 in the court below) on September 9, 1947, and in the Howey case (Civil ActionNo. 7859 in the court below) on October 27, 1947.Judgments were entered in both cases in the court below on January 4, 1949, the adjudications therefore being made after the effective date of revised Title 28.Section 39 of the Act of June 25, 1948, 28 U.S. C.A. note preceding section 1, provides that "The sections or parts * * * of * * * the Statutes at Large enumerated in the following schedule are hereby repealed.Any rights or liabilities now existing under such sections or parts thereof shall not be affected by this repeal."It appears that the F.T.C.A., as amended, was repealed by the Act of June 25, 1948.See the schedule referred to in Section 39, 62 Stat. 1008.It would follow that if a loss of rights would occur if the provisions of revised Title 28 were to be applied, the provisions of the F.T.C.A. as they existed prior to the effective date of the revised title must be deemed to be governing.See note 6 cited to the text in Hoiness v. United States, 335 U.S. 297, 301, 69 S.Ct. 70.In United States v. Aetna Surety Co., 338 U.S. at page 370, 70 S.Ct. 207, 210, at note 5 cited to the text of Mr. Chief Justice Vinson's opinion, reference is made to what may be regarded properly as the key section of the F.T.C.A., viz., Section 410(a),Section 931 of Title 28 U.S.C.(1946 Ed.), and it is stated that "This section is now divided and, with immaterial changes, appears in revised Title 28 U.S.C.,§§ 1346(b) and 2674, 28 U.S.C.A. §§ 1346(b),2674."

In the cited casethe Supreme Court was considering the effect of R.S. § 3477, the "anti-assignment"statute, 31 U.S.C.A. § 203, and held that an insurance company could bring an action under the F.T.C.A. in its own name against the United States upon a claim to which it had become subrogated by payment to an insured who would have been able to bring such an action.The issue with which we are concerned in the instant case was not precisely in focus in the Aetna Surety Co. decision.We state this because it seems to us possible that the language of Section 1346(b) of revised Title 28 United States Code Annotated, may be somewhat narrower in effect than the pertinent portion of Section 410(a) of the F.T.C.A. 28 U.S.C. (1946 Ed.) § 931(a).We need not determine this question, however, for it is clear that the rights of the parties accrued before September 1, 1948, and, if the language of Section 1346(b) of revised Title 28 be narrower in scope, the instant cases must be determined under the F.T.C.A. as it existed prior to the date last stated.On the other hand if the words of Section 1346(b) do not effect any limitation of the rights of the partieswe need not consider them here for it is clear that they work no enlargement.Moreover, the F.T.C.A. as it existed prior to September 1, 1948, must be deemed to give the true congressional intent in respect to the rights of parties under the F.T.C.A. prior to the effective date of revised Title 28.We therefore shall consider the law as it existed prior to revised Title 28 and thus decide the instant cases.

The proponents of the United States as the sole or single party point out that Section 410(a)⁶ of the F.T.C.A., now 28 U.S. C.A. §§ 1346(b),2402, and2674, conferred exclusive jurisdiction upon United States district courts"sitting without a jury" to hear and determine claims "on account of personal injury" caused by the negligent act of an employee of the Government, and that this presupposes a trial with the United States as the sole defendant since the Seventh Amendment requires, unless waived, a jury trial for any other defendant.The proponents of the theory that the United States may be joined as a defendant argue that because Section 410(a) provided that the Government should be liable "under circumstances where the United States, if a private person, would be liable to the claimant for such damage * * * in accordance with the law of the place where the act * * * occurred" and also that "* * * the United States shall be liable in respect of such claims, to the same claimants, in the same manner, and to the same extent, as a private individual under like circumstances * * *", Congress had made the rights and liabilities of the United States equivalent to those of a private litigant and such a waiver of immunity by the sovereign permits its joinder.In modern practice juries very frequently are waived in trials in United States district courts.Had a jury been insisted on by the private defendant in the instant case there was no valid reason why the trial judge and the jury respectively should not have determined the liability of the United States and that of the private defendant.Cf.Elkins v. Nobel, E.D.N.Y., 1 F.R.D. 357.

The United States asserts that since Section 410(b) of the F.T.C.A., now 28 U.S.C.A. § 2676, provided that a judgment against the United States in a Section 410 (a) action should constitute a complete bar to any suit brought by the claimant against the employee of the Government whose negligence gave rise to the claim, the negligent government employee could not have been joined as a third-party defendant with the United States as a third-party defendant.Cf.Dickens v. Jackson, E.D.N.Y., 71 F.Supp. 753...