Sappington v. Prencipe, Civ. A. No. 37213.

• Decision Date: 15 December 1948
• Docket Number: Civ. A. No. 37213.
• Citation: 87 F. Supp. 357
• Parties: SAPPINGTON v. PRENCIPE et al.
• Court: U.S. District Court — District of Columbia

87 F. Supp. 357

SAPPINGTON v. PRENCIPE et al.

Civ. A. No. 37213.

United States District Court District of Columbia.

December 15, 1948.

Robert Hawkins, Washington, D. C., for plaintiff.

Geo. E. McNeil, Washington, D. C., for defendants.

JAMES ALGER FEE, District Judge.

Plaintiff Gertrude B. Sappington originally brought action against Nick L. Prencipe and Evelyn T. Barrett and Elwood F. Barrett for personal injuries claimed to have been sustained by her by reason of joint negligence of the defendants. Jury trial was demanded by plaintiff. Upon learning that Prencipe was an employee of the United States of America, plaintiff moved for joinder of the latter as a defendant. This motion was granted by the court with the consent of the United States Attorney. After the United States was made a party, the United States Attorney moved to strike the demand for jury trial. This motion was allowed by the court as to all defendants. When the pretrial conference took place, plaintiff moved to dismiss as to Prencipe, which was allowed. At the trial, defendants Barrett moved to dismiss the cause as to them for the reason that the court had no jurisdiction to try a cause in which the United States was joined with other defendants in an action for tort under the statute. The court overruled the motion.

The cause was tried before the court without the intervention of a jury. The evidence showed that Mrs. Sappington walked without care for her own safety through heavy traffic from a safety zone, where she had gotten off a street car, toward the sidewalk. It is true that the Barrett car was momentarily stopped near the sidewalk opposite the end of the platform of the safety zone and in a place where stopping was forbidden by a regulation of the District of Columbia. This, however, was a condition rather than a cause of the accident. Plaintiff walked in front of a taxicab which passed her. Prencipe, who was a United States park policeman, mounted on a motorcycle, sounded his horn when he saw the situation, but she paid no heed. He immediately put on his brakes and attempted to bring the motorcycle to a stop and also to dodge the plaintiff. However, he failed in this maneuver and struck her with one of the lights of his motorcycle at about the time he brought the vehicle to a stop.

The court was of the opinion that the injury to plaintiff was caused solely and proximately by her own fault and negligence, that neither the defendants Barrett were, nor was the United States nor was Prencipe responsible, and expressed this holding from the bench.

However, the court raised the question of the jurisdiction to entertain an action jointly against the United States and another party or parties under the Tort Claims Act.¹ The question was briefed and submitted.

The question has been argued solely as if the salient feature were the joinder of third parties in an action against the United States. Plaintiff and defendants Barrett argue now that judgment should be on the merits. The United States contends that the judgment should be rendered on the merits against plaintiff and in favor of the United States, but that a joint action cannot be maintained against the United States and other defendants, and therefore either a severance should be granted or a dismissal of the action as to the others with the right to recommence the suit. None of these expressions squarely touches the issue. The salient question is whether the United States can be joined as an additional party defendant in an action which plaintiff commenced against three individual defendants.

It is hornbook law that the sovereign cannot be sued without its consent. Without express statutory waiver of immunity, no such suit can be maintained. Such a statute must be strictly construed since the United States may consent on those terms and conditions which Congress chooses, and those alone....