Standard Oil Co. v. United States, 11114.

Decision Date29 March 1946
Docket NumberNo. 11114.,11114.
Citation153 F.2d 958
PartiesSTANDARD OIL CO. OF CALIFORNIA et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Jennings & Belcher, of Los Angeles, Cal., and H. Rowan Gaither, Jr., Louis V. Crowley, and Arthur E. Cooley, all of San Francisco, Cal., for appellant.

Charles H. Carr, U. S. Atty., and Ronald Walker and Cameron L. Lillie, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Nourse & Jones, of Los Angeles, Cal., amicus curiae.

Before MATHEWS, BONE, and ORR, Circuit Judges.

BONE, Circuit Judge.

This is an appeal from a judgment of the above mentioned District Court awarding a sum to the appellee, United States of America, for the loss of services to it of a member of its armed forces.

The action grows out of a traffic accident which occurred on February 7, 1944 in Los Angeles, California, in which a truck of appellant, Standard Oil Company, driven at the time of the accident by appellant, Ira Boone, an employee of Standard Oil, collided with and injured John Etzel, a soldier in the Army of the United States. As a result of these injuries Etzel was unable to perform his duties as a soldier for a period of 29 days.

Etzel's pay during the period of his incapacity amounted to $69.31. He also received army medical care and hospitalization, the reasonable and stipulated value of which was $123.25. On March 16, 1944 Etzel, in return for the sum of $300, executed a release in full to both appellants for his personal injuries.

The Government instituted suit in the court below on April 24, 1945 to recover the total of its payments in wages and medical care during Etzel's incapacity, ($192.56) on the theory that "as a result of the accident the services of John Etzel were lost to the plaintiff for the aforesaid period 29 days, and also by reason thereof the plaintiff became liable to pay, and did pay John Etzel as compensation * * * $69.31 and * * * expended for hospital care, the sum of $123.25." The lower court gave judgment for plaintiff in the total of these two amounts. The judge was of the opinion that the government-soldier relationship is a "status" similar to that of master and servant, parent and child, or husband and wife, and that therefore, the government has a cause of action for loss of a soldier's services similar to that of a master for loss of the services of his servant, a parent for those of his child, et cetera.

Appellants do not appeal from the trial court's finding that Boone's negligence caused the injury, but from its finding that the government has a cause of action for loss of a soldier's services. This is the question before this court. This case is one of first impression in this country.1 At the outset we are confronted with the problem of what law should apply. There is no federal statute which might afford the government a means for bringing this action and it has been held that "when the United States comes into Court to assert a claim it so far takes the position of a private suitor as to agree by implication that justice may be done with regard to the subject matter." United States v. The Thekla, 266 U.S. 328, 339, 340, 45 S.Ct. 112, 113, 69 L.Ed. 313, and see United States v. Moscow-Idaho Seed Co., 9 Cir., 92 F.2d 170, 173, 174. Aside from any federal legislation conferring a right of subrogation or indemnification upon the United States, it would seem that the state rules of substantive common law would govern an action brought by the United States in the role of a private litigant. Erie R. Co. v. Tompkins, 304 U.S. 64, 71, 78, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; United States v. Moscow-Idaho Seed Co., supra, 92 F.2d at pages 173, 174.

Appellant maintains that § 49 of the Civil Code of California is controlling and we are inclined to agree. Appellee does not argue the matter in the briefs, but on oral argument government counsel seemed persuaded that the issue must be determined by California law.

As stated above, the government's sole argument in the court below and in this court is that the relation between government and soldier is that of master and servant, or, at least, a relation analogous thereto. The right of a master to sue for the loss of services of his servant is an old remedy at common law. The action appears to have arisen when the basis of society was that of "status" and when there was no procedure in the King's courts for enforcing a simple contract. In that early day, the servant was looked upon as a member of the master's family, and, thus, the action was similar to writs of trespass for injury to a wife or child, or for debauching a wife, daughter, or female servant. See Admiralty Commissioners v. S.S. Amerika, 1917 A.C. 38, 44, 45, 54 et seq.; Holdsworth, History of English Law, v. 8, p. 429; Wigmore, Interference with Social Relations, 21 Am.L.Rev. 764, 765-769; Green, Relational Interests, 29 Ill.Law.Rev. 460, 1041, 1042.

Today the master-servant relation is generally based on contract. Therefore, the master's cause of action for loss of his employee's services remains as an anomaly in the law for "* * * while intentionally to bring about a breach of contract may give rise to a cause of action, Angle v. Chicago St. P. M. & O. R. Co., 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong. See National Sav. Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621. The law does not spread its protection so far." Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309, 48 S.Ct. 134, 72 L.Ed. 290. See also Admiralty Commissioners v. S.S. Amerika, supra; Pollock on Torts (14th ed., 1939), p. 55; and compare The Federal No. 2, 2 Cir., 21 F.2d 313; Buckley v. Gray, 110 Cal. 339, 42 P. 900, 31 L.R.A. 862, 52 Am.St.Rep. 88; Hall v. Barber Door Co., 218 Cal. 412, 418, 23 P.2d 279.

In California the master's cause of action for the loss of an employee's services is defined in the California Civil Code, § 49, which section is in full as follows:

"The rights of personal relations forbid:

"(a) The abduction or enticement of a child from a parent, or from a guardian entitled to its custody "(b) The seduction of a person under the age of legal consent;

"(c) Any injury to a servant which affects his ability to serve his master, other than seduction, abduction or criminal conversation."

If this section of the Civil Code governs this case, and we believe it does, the government's case must fail for two reasons: first, because the government-soldier relation is not within the scope of § 49 of the Code, and, second, because the government is not a "master" and the soldier is not a "servant" within the meaning of the Code section.

First. The trial judge deleted his finding of fact that a master-servant relationship existed in this case. He stated in his opinion that the action was based on injury to the "status" or personal relationship existing between government and soldier, and that defendant could not escape liability by claiming that at common law the relationship "did not have a name." See United States v. Standard Oil Corporation, D.C., 60 F.Supp. 807, 810. The trial judge is evidently of the opinion that the "modern trend" is towards affording protection to rights arising from statuses not protected at common law.2 In this court, the government has not adopted the trial court's conclusion that interference with the government-soldier relation, standing alone, is a sufficient basis for this suit. The government still argues, as it did in the lower court, that the government-soldier relation is the same as that of master and servant, or analogous thereto.

Whether or not the government-soldier relation is one protected at common law, it does not seem to be within the scope of § 49, for that section definitely limits the causes of action which are based upon an interference with personal relationships to those enumerated in the section. For example, § 49 might have given a cause of action for injuries to parties to other personal relationships similar to that of master and servant alone, i.e., for injuries to an agent, an independent contractor, a partner, a joint adventurer, et cetera. And even if the government-soldier relationship is the basis for an action at common law, it must be noted that § 49, both as amended in 1905, and in 1939, is in derogation of the common law because other personal relations traditionally protected by that law are withdrawn from the section.3 The court said in Burlingame v. Traeger, 101 Cal. App. 365, 371, 281 P. 1051, 1053: "It must also be borne in mind that `our codes, of course, were intended as complete revisions of the existing laws upon the subjects embraced therein' (Estate of Carraghar, 181 Cal. 15, 183 P. 161, 163), and that their provisions establish the law of this state respecting the subjects to which they relate. (In re Apple, 66 Cal. 432, 6 P. 7; McLean v. Blue Point Gravel Min. Co., 51 Cal. 255.) It is only when the Code and other statutes are silent that the common law governs." For these reasons we do not believe that the government-servant relationship alone is within the scope of § 49 of the Civil Code.

Second. Since we do not believe that the government-soldier relationship is protected by § 49 of the Civil Code, we must next consider the government's claim that the government-soldier relationship is the same as that of master and servant. If this argument is correct, the government will, of course, be brought within the scope of § 49(c), which subsection may be termed a definition of the master's action at common law. There are, it is granted, some resemblances between the master-servant and government-soldier relationships, but the distinguishing features are so great...

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