United States v. Huff

• Citation: 1 ALR 2d 854,165 F.2d 720
• Decision Date: 13 January 1948
• Docket Number: No. 11811-11814.,11811-11814.
• Parties: UNITED STATES v. HUFF. SAME v. BLAND. SAME v. ARLEDGE et al. SAME v. ARLEDGE.
• Court: U.S. Court of Appeals — Fifth Circuit

1 ALR 2d 854, 165 F.2d 720 (1948)

UNITED STATES v. HUFF.

SAME v. BLAND.

SAME v. ARLEDGE et al.

SAME v. ARLEDGE.

Nos. 11811-11814.

Circuit Court of Appeals, Fifth Circuit.

January 13, 1948.

COPYRIGHT MATERIAL OMITTED

A. W. Christian, Asst. U. S. Atty., of Fort Worth, Tex., for appellant the United States.

John Sayles, Jack Sayles, and Dallas Scarborough, all of Abilene, Tex., for appellees.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

The owners of adjacent tracts of land near Camp Barkeley, in Taylor County, Texas, executed leases covering the lands to three named trustees in order to permit the trustees to make a blanket lease of all the tracts to the federal Government for use as the site of an Army training and maneuver camp and an artillery firing and target range. The trustees executed a blanket lease dated January 2, 1941, to expire July 1, 1943. The appellees, plaintiffs below, in causes No. 11,811, No. 11,812, and No. 11,814 were the tenants, and in cause No. 11,813, the heirs of the deceased tenant, of the tracts of land included in the blanket lease. At the time of the execution of the blanket lease these tenants were using and occupying the different tracts for the purpose of raising sheep and goats and were permitted to continue such use and occupancy during the term of the lease. The complaint in each case alleges that the acts of the Government or its agents and employees, particularly set forth in the petition, constituted negligence which caused loss of and damage to sheep and goats on the premises described in each complaint. The complaints were brought under 28 U.S. C.A. § 41(20), known as the Tucker Act. The portion of the act here applicable reads as follows:

"The district courts shall have original jurisdiction as follows:

* * * * * *

"Suits against United States. Twentieth. Concurrent with the Court of Claims, of all claims not exceeding $10,000 founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, * * *."

The defendant below, appellant here, moved to dismiss on three grounds: (1) That the court was without jurisdiction for the reason that the causes of action were for damages in cases sounding in tort, and not founded upon contract, the plaintiffs not being parties to the contract of lease under which the Government was in possession of the property; (2) that a remedy was afforded by Congress by 31 U.S.C.A. § 223b, Act July 3, 1943, § 1, 57 Stat. 372, providing for a consideration by the Secretary of War, or an official designated by him, of claims for damages caused by military personnel, and that said remedy was exclusive or, if not exclusive, to be pursued prior to filing suit for such damages; (3) that in the two Arledge cases the court was without jurisdiction because the two claims asserted were in realty the single claim of a partnership and were, therefore, for an amount in excess of $10,000.

The four cases were tried together, and at the conclusion of the testimony motions to dismiss were again filed on the same grounds and upon the following additional grounds, viz: (1) The evidence failed to establish any acts of negligence on the part of the Government, its agents, or employees. (2) The evidence failed to show damages with a reasonable degree of certainty or to establish the measure of damages. (3) Plaintiffs remaining on the land and keeping their livestock thereon after the leases to the Government for military purposes assumed the risk of damages reasonably incident to the use of the land for military purposes. These motions were likewise overruled, and judgment was rendered against the Government and for the plaintiffs in each case.

The record shows that the original petitions were for amounts exceeding $10,000. The defendant filed a motion to dismiss on the ground of no jurisdiction, and the plaintiff then filed and served a new petition termed an amended complaint. In this amended complaint, plaintiffs set forth anew all allegations of the original petition and alleged anew with full particulars their causes of action for damages in amounts in sum less than $10,000. By this action they abandoned their original suits and filed their claims under a petition in which the jurisdictional amount was within the coverage of the Tucker Act.

The appellees Arledge, Jr., and Arledge, Sr., signed a contract with the trustees from which it might be inferred that they were one concern, a partnership. But we agree with the lower court that the greater weight of the evidence is to the effect that they were operating separate and distinct business enterprises. This being so, each must be held to have filed a separate action for less than $10,000.

Appellant contends that the appellees not being parties to the lease cannot sue upon the contract. We think the lease was drawn with the double purpose of benefiting both the owners of the lands in question and their tenants, appellees. Paragraphs 12 and 13 of the lease read as follows:

"12. The Government will not be liable during the life of this lease, or any renewal thereof, for the loss of, or damage of any nature to livestock that may be on said premises, save and except the loss of, or damage to, said livestock due to negligence on the part of the Government or its agents or employees.

"13. The Government shall have the right, during the existence of this lease, to let down any wire on the now existing wire fences, with the understanding that following the crossing of said fences by the troops, the Government will restaple the said wire to the posts, and leave the fence in as good condition and repair as it was at the time of entry upon the leased premises by the Government."

The record shows that the only livestock on the leased premises was livestock belonging to the tenants, appellees. Clearly, therefore, paragraph 12 must be held to have been drawn with rights of the tenants in the minds of the contracting parties. Patently paragraph 13 protects both the owners' property in the fences and the tenants' interest in keeping their livestock enclosed to prevent straying. If the owners' property interest in the fences were the only, or even the primary, interest to be protected, it could have been protected merely by an agreement on the part of the Government to replace or pay for removed fences at the termination of the lease. But the paragraph in question provides for replacement of the fences following the passage of the troops, and we think the inescapable conclusion must be that the agreement was intended by the parties also to benefit the tenants in their business of raising livestock. This conclusion is fortified by the fact that the Government expressly agreed that during the term of the lease, the tenants in possession might remain upon the lands and continue in business. Further, the agreement permitting the owners of the lands to execute a lease to the Government provided that: "It being understood that such lease contract as first parties owners make with the Government of the United States will contain a provision to the effect that notification of the proposed use of the artillery firing area and the artillery target area will be given second parties tenants at least five days before said areas are so used." In the Government lease, the provision reads that "notice shall be given to the lessor," that is, to the owner; but the evidence shows that the notice was in actual fact given, when it was given, to the tenants, appellees here. It is evident that at least in these quoted paragraphs and clauses the Government lease is charged with obligation toward the tenants, that they are thirdparty beneficiaries of the contract, and that, therefore, they may sue upon it. Williston on Contracts, § 356A; Restatement of the Law of Contracts, § 133.¹

The Government contends that even if appellees are beneficiaries of the contract, they have no case since paragraphs 12 and 13 must be taken together. In them, it is said, the Government expressly limits its liability to liability for loss or damages caused by negligence, and for such damages an action will not lie under the Tucker Act. The answer to that is that if paragraphs 12 and 13 are read together, they contradict each other by necessary implication. Paragraph 12 denies liability in connexion with livestock for loss or damage of any nature except that due to negligence, while, immediately following, paragraph 13 contracts implicitly to protect livestock. This contradiction would not exist but for the phrase in paragraph 13 "following the crossing of the fences by the troops." Without that phrase, no time element would have been injected, and, therefore, no implication would arise of any intent to contract with respect to anything other than the fences themselves. It is the time element that demands the interpretation we have put upon paragraph 13, that protection of livestock as well as of the actual fencing was within the contemplation of the parties.

We think that to avoid the contradiction referred to, paragraph 12 insofar as it denies liability must be narrowly construed to refer only to ordinary and reasonably foreseeable loss or damage resulting from the contemplated use of the lands by the Army, such loss or damage, that is, as actually was occasioned by the pollution of the water, or as might have been caused by Army equipment unavoidably running over and killing the animals; such loss or damage would be due neither to negligence nor to breach of the contract in paragraph 13. The phrase in paragraph 12 "save and except the loss...