State of Maryland v. United States

• Citation: 329 F.2d 722
• Decision Date: 01 April 1964
• Docket Number: 14042.,No. 14041,14041
• Parties: STATE OF MARYLAND for the Use of Nadine Y. LEVIN, et al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant. STATE OF MARYLAND for the Use of Sydney L. JOHNS, et al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

329 F.2d 722 (1964)

STATE OF MARYLAND for the Use of Nadine Y. LEVIN, et al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.

STATE OF MARYLAND for the Use of Sydney L. JOHNS, et al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.

Nos. 14041, 14042.

United States Court of Appeals Third Circuit.

Argued May 21, 1963.

Decided April 1, 1964.

Rehearing Denied April 28, 1964.

David L. Rose, Atty., Dept. of Justice, John W. Douglas, Acting Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Joseph S. Ammerman, U. S. Atty., Morton Hollander, John G. Laughlin, Attys., Dept. of Justice, Washington, D. C., for appellant, Enoch E. Ellison, Washington, D. C., of counsel.

Theodore E. Wolcott, New York City, for appellees.

Before STALEY, HASTIE and SMITH, Circuit Judges.

WIILLIAM F. SMITH, Circuit Judge.

These appeals are from judgments in favor of the use plaintiffs in actions for wrongful death brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b), 2671 and 2674. The deaths resulted from a mid-air collision between a commercial airliner owned by Capital Airlines, in which the decedents were passengers, and a jet trainer plane owned by the defendant and allocated to the Maryland Air National Guard pursuant to § 702(a), 32 U.S.C., and the regulations promulgated thereunder; the collision occurred within the territorial limits of Maryland. The federally owned plane was piloted by one Captain Julius R. McCoy, a rated pilot and a commissioned officer of the Air Guard, employed full time in civilian status as a maintenance technician holding the classified position of Aircraft Maintenance Chief. At the time of the accident the Maryland Air National Guard was not in the active service of the United States.

The trial court found that the sole proximate cause of the accident was "the negligence and wrongful conduct" of the pilot of the federally owned plane. This finding is not challenged here. The trial court also found that at the time of the accident the pilot was acting in his capacity as an "air technician," and, as such, "was a civil employee of the United States acting within the scope of his employment." This finding, on which the respondent superior liability of the defendant was predicated, is challenged as clearly erroneous and legally unsupportable. We find it necessary to dispose of two preliminary questions before entering upon a consideration of the principal issues raised by these appeals.

PRELIMINARY QUESTIONS.

The plaintiffs argue that under rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A. the trial court's findings of fact may "not be set aside unless clearly erroneous." We do not agree that the "clearly erroneous" test is applicable on the present appeal. The actions were submitted to the trial court on the record made in the consolidated trial of related cases tried in the United States District Court for the District of Columbia. This record consisted primarily, although not entirely, of depositions and written exhibits as to which there was no dispute.

It has been held by this Court, and others, that under such circumstances the findings of fact are reviewable on appeal and need not be given the weight usually accorded them under the rule. Surgical Supply Service, Inc. v. Adler, 321 F.2d 536, 539 (3rd Cir. 1963); Mayo v. Pioneer Bank & Trust Company, 297 F.2d 392, 395 (5th Cir. 1961); Merchants National Bank and Trust Co. v. United States, 246 F.2d 410, 417 (7th Cir. 1957), cert. den. 355 U.S. 881, 78 S. Ct. 148, 2 L.Ed.2d 112 (1957), reh. den. 355 U.S. 920, 78 S.Ct. 339, 2 L.Ed.2d 280 (1958); Lang v. First Nat. Bank of Houston, 215 F.2d 118, 120 (5th Cir. 1954); In Re Kellet Aircraft Corp., 186 F.2d 197, 200 (3rd Cir. 1950); Orvis v. Higgins, 180 F.2d 537, 539, 540 (2d Cir. 1950), cert. den. 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950). We are in as good a position as was the trial court to evaluate the evidence, draw the inferences of which the evidence is reasonably susceptible, and decide the critical questions raised on this appeal.

We note further that the consolidated trial of the related actions resulted in judgments favorable to the plaintiffs therein concerned. These judgments, one of which was reversed only on the issue of damages, were affirmed on appeal to the United States Court of Appeals for the District of Columbia. United States v. State of Maryland, 116 U.S. App.D.C. 259, 322 F.2d 1009 (1963). A petition for a writ of certiorari was denied on December 16, 1963, 375 U.S. 954, 84 S.Ct. 445, 11 L.Ed.2d 314. This denial "imports no expression of opinion upon the merits" of the cases involved, United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923); House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 89 L.Ed. 739 (1945); Sunal v. Large, 332 U.S. 174, 181, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), and is therefore of no significance in the instant appeals.

FIRST QUESTION.

The Federal Tort Claims Act imposes liability upon the United States for personal injury or death caused by the negligence or wrongful act or omission of "any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The term "employee of the government," as defined by statute, "includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, * * *." 28 U.S.C. § 2671.

The first and most important question for decision is whether the relationship between the United States and Captain McCoy, in his civilian position as an air technician, was that of employer and employee within the meaning of the statute. The determination of the question requires consideration of the historical origin of the National Guard and the constitutional and statutory provisions under which it is organized, maintained, disciplined and regulated in its peace-time status.

CONSTITUTIONAL AND STATUTORY PROVISIONS.

The respective powers of the federal and state governments with relation to the militia forces are defined by Article 1, § 8 of the Constitution, which provides, in pertinent parts, as follows:

"The Congress shall have Power * * *, to * * * provide for the common Defence and general Welfare of the United States; * *

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

* * * and

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

These provisions established a division of mutually exclusive powers. There was vested in Congress the limited power to enact laws necessary to the effective organization of the militia forces which were deemed necessary to the common defense. There was reserved to the states the right to organize, maintain and regulate such forces and to appoint and commission their officers, a right which existed in and was exercised by the states prior to the adoption of the Constitution. Selective Draft Law Cases, Arver v. United States, 245 U.S. 366, 383, 38 S.Ct. 159, 62 L.Ed. 349 (1918). The quoted clauses made it manifest that the militia units were to remain subject to the control and authority of their respective states until called into the active service of the United States for the special purposes authorized.

The militia forces of the several states are, and, since 1903, have been organized and maintained as units of the National Guard¹ under joint federal-state auspices. Act of January 21, 1903, 32 Stat. 775, commonly known as the Dick Act. However, the first comprehensive exercise of the Congressional power was the enactment of the National Defense Act of 1916, 39 Stat. 166, and the amendments contained in the Act of June 4, 1920, 41 Stat. 759.

The cited legislation provided for the reorganization of the Army of the United States, and, as an incident thereto, the organization and training of the National Guard units of the various states on a basis conforming to that of the Regular Army. However, it should be emphasized that both acts specifically declared that the organized Guard was to be a component of the Army of the United States only "while in the service of the United States." There was in each of the acts a specific recognition by Congress of the constitutional limitations on its power. This legislation did not alter the status of the National Guard units as independent military forces subject to the exclusive jurisdiction of the several states, except when mustered into the active service of the United States.

The enactments of 1916 and 1920 authorized the appropriation of funds for the support of the National Guard and the apportionment thereof among the states and territories whose organized units met the standards prescribed by the enactments and the regulations promulgated thereunder by the Secretary of War, a condition precedent to federal recognition. While Congress assumed full responsibility for the financial support of the National Guard units which qualified for federal recognition, it specifically recognized the constitutional authority of the several states and territories to organize, maintain and...