United States v. Acord

• Decision Date: 08 February 1954
• Docket Number: No. 4694.,4694.
• Parties: UNITED STATES v. ACORD et al.
• Court: U.S. Court of Appeals — Tenth Circuit

209 F.2d 709 (1954)

UNITED STATES v. ACORD et al.

No. 4694.

United States Court of Appeals, Tenth Circuit.

January 14, 1954.

Rehearing Denied February 8, 1954.

Herman S. Greitzer (Warren E. Burger, Asst. Atty. Gen., Robert E. Shelton, U. S. Atty., Harry G. Foreman, Asst. U. S. Atty., Oklahoma City, Okl., and Paul A. Sweeney and John G. Laughlin, Attys., Dept. of Justice, Washington, D. C., on the brief), for the United States.

Nell Rhodes Fisher and Gus Rinehart, Oklahoma City, Okl. (J. I. Gibson and Butler, Rinehart & Morrison, Oklahoma City, Okl., on the brief), for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

PHILLIPS, Chief Judge.

Glenn Acord was injured by a mail pouch thrown by a mail clerk, who was an employee of the United States, from a moving train owned and operated by the Chicago, Rock Island & Pacific Railroad Company.¹

Acord brought an action against the Railroad Company in the Western District of Oklahoma to recover the damages resulting from such injuries. The Railroad Company filed a third-party complaint against the United States, seeking indemnity for all sums that might be adjudged against it in favor of Acord. The United States filed a motion to dismiss the third-party complaint on the ground that Acord resided and the act complained of occurred in the Eastern District of Oklahoma, and that under the Federal Tort Claims Act the venue was in the Eastern District of Oklahoma. The motion was overruled without prejudice. The United States then filed an answer in which it denied liability for indemnity and renewed its motion to dismiss on the grounds of improper venue.

The case was tried to the court without a jury. The court found that Acord was lawfully upon the premises of the Railroad Company on April 28, 1952, as a business invitee, and was struck by a mail pouch thrown from a southbound train owned and operated by the Railroad Company; that the pouch was thrown by a mail clerk, who was an employee of the United States; that Acord suffered serious bodily injuries; that the Railroad Company owed a duty to Acord to exercise ordinary care for his safety; that the station agent for the Railroad Company knew that a mail pouch would be thrown from the train and that it might be dispatched in the area where Acord was standing and that the agent should have warned Acord of the danger; that had the agent warned Acord of the danger, he could have protected himself and avoided the accident; and that the failure of the Railroad Company to warn Acord "proximately contributed to the accident and his injuries."

The court further found that the mail clerk negligently threw the mail pouch from a fast-moving train in an unauthorized area, where he knew, or should have known, persons would be injured thereby, and that the United States failed to make proper arrangements for the dispatch of the mail pouch at a place where it would be safe to dispatch it.

The court entered judgment in favor of Acord against the Railroad Company for $10,000 and against the United States in favor of the Railroad Company in the amount awarded Acord.

The United States has appealed.

Two questions are presented:

1. Could the third-party claim be asserted against the United States in the Western District of Oklahoma?

2. Under the facts, was the Railroad Company entitled to indemnity from the United States?

I.

28 U.S.C.A. § 1402(b) provides that "Any civil action on a tort claim against the United States * * * may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." Here the act or omission complained of occurred in the Eastern District of Oklahoma and the plaintiff resides in that district.

The Federal Rules of Civil Procedure apply to actions brought under the Federal Tort Claims Act.²

Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that a defendant may move for leave, as a third-party plaintiff, to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him and that if the motion is granted and the summons and complaint are served, the person so served shall be called the third-party defendant and shall make his defenses to the third-party plaintiff's claim as provided in Rule 12.

Rule 82 of the Federal Rules of Civil Procedure provides that "These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein."

It is well settled that "The United States, as sovereign, is immune from suit save as it consents to be sued, * * * and the terms of its consent to be sued in any court defines that court's jurisdiction to entertain the suit."³

In United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, four passengers in a taxicab were injured in a collision between the cab and a United States mail truck. The passengers, charging negligence on the part of the cab driver, sued his employer, the Yellow Cab Company, in a United States District Court. The Yellow Cab Company impleaded the United States as a third-party defendant and charged that the negligence of the mail truck driver made the United States liable for all or part of the passengers' claims against the Yellow Cab Company. The Supreme Court held that a United States District Court can require the United States to be impleaded as a third-party defendant and to answer the claim of a joint tort-feasor for contribution as if the United States were a private individual. We hold, on the authority of that case, that the United States may be impleaded as a third-party defendant by another defendant, to answer a claim for indemnity under the Federal Tort Claims Act. However, in the Yellow Cab Co. case the question of proper venue was not involved.

Rule 14 was derived from Admiralty Rule 56. See 28 U.S.C.A., Rules, p. 119. Rule 14 was formulated and adopted in keeping with the purpose of the Federal Rules of Civil Procedure to simplify and expedite procedure. The purpose of Rule 14 was to accomplish in one proceeding the adjudication of the rights of all persons concerned in the controversy and to prevent the necessity of trying several related claims in different lawsuits. The rule should be liberally construed to effectuate its intended purposes.

Where a Federal court has jurisdiction of a claim and the parties in the principal action, it generally has jurisdiction also of a suit or proceeding which is a continuation of or incidental and ancillary to the principal action, even though it might not have jurisdiction of the ancillary proceeding if it were an independent and original action or proceeding. The jurisdiction of the ancillary suit or proceeding is referable to or dependent upon the jurisdiction of the court over the principal suit or proceeding.⁴

It has been held that a proceeding on a third-party plaintiff's claim under Rule 14 is an ancillary proceeding incidental to the main action and that no separate ground of jurisdiction is required.⁵

The more difficult question presented is whether a person not a party to the main action may be brought in as a third-party defendant on the complaint of a third-party plaintiff under Rule 14, where the third-party proceeding could not be maintained, as an independent action, in the district where the principal proceeding is pending, because of lack of proper venue.

In Lewis v. United Air Lines Transport Corp., D.C.Conn., 29 F.Supp. 112, Judge Hincks held that such a third-party proceeding was not ancillary to the main action and could not be maintained because of the lack of proper venue. He predicates his conclusion on G. & C. Merriam Co. v. Saalfield, 241 U.S. 22, 36 S.Ct. 477, 60 L.Ed. 868, and construes that case to hold that where the third-party proceeding brings in a new party, the proceeding is an original and not an ancillary proceeding. We do not so construe that case. We think the holding that the supplemental bill in that case was not ancillary was predicated not on the fact that a new party was brought in, but upon the nature of the relief sought against the new party.

In King v. Shepherd, D.C.Ark., 26 F. Supp. 357, Judge Ragon held that where the third-party proceeding brings in a new party defendant against whom an original proceeding could not be maintained in the district because of lack of proper venue, the third-party proceeding cannot be maintained because it would extend the venue of the action, contrary to the provisions of Rule 82.

In Dickey v. Turner, 6 Cir., 49 F.2d 998, 1001, the court held that an ancillary proceeding can be maintained against a person not a party to the main proceeding if service of process can be obtained, even though the proceeding could not be maintained as an original proceeding because of lack of proper venue. In the opinion the court said:

"Appellants Dickey and Taliaferro urge that the bill should have been dismissed as to them upon their plea to the venue, to wit, that they were nonresidents of the district in which the suit was brought. If this plea be regarded as directed at the venue of the court, the jurisdiction invoked being purely ancillary, and not original, it is obvious that the court which had jurisdiction of the original action is the proper one to consider the ancillary proceedings, provided jurisdiction over the persons of additional defendants can be secured."

Morrell v. United Air Lines Transport Corp., D.C.N.Y., 29 F.Supp. 757, was an action brought against the Transport Corporation to recover for wrongful death alleged to have been caused by the negligence of the Transport Corporation. The Transport Corporation sought to bring in two third-party defendants who were not parties to the main action and to recover over from them any amount it might be compelled to pay the plaintiff in the main action. Judge Goddard held that the...