United States v. State of Arizona

Decision Date18 October 1954
Docket NumberNo. 13722.,13722.
Citation214 F.2d 389
CourtU.S. Court of Appeals — Ninth Circuit

Asst. Atty. Gen., Warren E. Burger, Paul A. Sweeney, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., Jack D. Hayes, U. S. Atty., Phoenix, Ariz., John F. O'Mara, Asst. U. S. Atty., Tucson, Ariz., for appellant.

Ross F. Jones, Atty. Gen., Irwin Cantor, Robert C. Stubbs, Asst. Attys. Gen., for appellees.

Before DENMAN, Chief Judge, and LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Roderick J. Krause, a boy scout from Bisbee, Arizona, was injured on April 2, 1949, on the Fort Huachuca Military Reservation in Southern Arizona while fooling with a live bazooka shell. Under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., an action was brought by the father, Joseph L. Krause, in his own right and as guardian ad litem for the infant.

Fort Huachuca has a long history as a United States military post. A month or so previous to the injury, the United States had deeded the land where the injury happened to the state of Arizona. It seems to be conceded that the unexploded bazooka shell, along with other war missiles, had been left behind by the United States military on an abandoned range. The area was not marked as dangerous. Ten months previously a U. S. Army bomb and shell disposal team had issued a certificate of clearance after supposedly dedudding and decontaminating the vicinity.

The plaintiff asserted negligence in leaving the former range without warning signs, negligent failure to dedud and negligent issuance of the clearance certificate.

In addition to denying plaintiff's allegations, the United States pleaded as a defense: "It wasn't our fault, it was the fault of the state of Arizona. The state of Arizona, as the owner, is the only one accountable."

About the same time, the United States filed a third party complaint against the state of Arizona and two of its agencies. In effect, it said, "If we are liable, Arizona must reimburse us." Arizona made a motion to dismiss upon grounds to which we will return.

Proceedings on the third party complaint were laid to one side while the basic claim of Krause against the United States was tried before the Honorable Claude McColloch, district judge, on special assignment to the United States District Court in Arizona. After making extensive findings of fact, the trial judge on December 3, 1951, entered judgment for plaintiff, the father receiving from the United States $501.60 for himself and $3,500.00 for the infant. An attempt to appeal from this judgment failed, the record not having been sent forward in time. United States v. Krause, 9 Cir., 197 F.2d 329.

In 1952, the Honorable James A. Walsh, district judge, took charge of the issues on the third party complaint. After hearing arguments on October 6, 1952, he made the following minute order.

"The Third-Party Defendants\' Motion to Dismiss the Third-Party Complaint comes on regularly for hearing this day. John F. O\'Mara, Esq., Assistant U. S. Attorney, is present for the Government. Philip Munch, Esq., Assistant Attorney General of the State of Arizona, appears on behalf of the Third-Party Defendants. Said motion is now duly argued by respective counsel, and
"It is Ordered that the Motion of the Third-Party Defendants to dismiss the Third-Party complaint be and it is granted, and It Is Further Ordered that this case be and it is dismissed without prejudice as to the Third-Party Defendants."

The United States promptly appealed. This court, one judge dissenting, dismissed the appeal on the ground the notice of appeal was defective. United States v. State of Arizona, 9 Cir., 206 F.2d 159. The United States asked the Supreme Court for certiorari and got it. There it was summarily held the notice of appeal was adequate. United States v. State of Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. ___.

Fortunately for Roderick, it may be assumed he has his money, but the aftermath of his case goes on and on. An examination of the record shows it has had the combined or successive attention of Roderick's two lawyers, of three United States attorneys, three assistant United States attorneys, four attorneys from the Department of Justice, two attorneys general of the state of Arizona, and six assistant attorneys general of Arizona. Two district judges, three panels (eight judges) of this court, and the United States Supreme Court have had their turns at it.

Underlying the effort of the United States herein is a desire to maintain the principle that the United States may recover contribution or indemnity over against a sovereign state, where the state too is at fault, in an action in a United States district court where the liability of the United States is established under the Federal Tort Claims Act. That the United States may be either a third party plaintiff or a third party defendant where the liability of the United States arises under the Federal Tort Claims Act is settled by United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 97 L.Ed. 523.1

We hold herein that the judgment of dismissal of the third party claim should be affirmed, and we do it upon the ground that the third party complaint failed to state a claim for the reason that in Arizona the law of the state, in the absence of a contract, in a case such as this, does not permit one tort-feasor to recover contribution from another tort-feasor liable for the same injury.2

In the set of facts here, let us substitute X corporation as the prior owner of the training range at Fort Huachuca and Y corporation as the second owner, i. e., the owner at the time of the injury. Arizona law would not permit X corporation, its liability being established, to recover from Y corporation, also liable to the injured boy for the same tort. Schade Transfer & Storage Co. v. Alabam Freight Lines, 75 Ariz. 201, 254 P. 2d 800.

Returning to the record, we find that Arizona's motion to dismiss stated its grounds therefor as follows:

"1. The court lacks jurisdiction over the parties and the subject matter of the action.
"2. That said third party complaint fails to state a claim against third party defendants or any of them and fails to state facts sufficient, if true, to entitle the third party complainants to indemnity or any relief whatsoever.
"3. That cross complainant\'s complaint does not contain a statement of facts as distinguished from mere conclusions of the pleader which show the existence of a cause of action."

In the memorandum accompanying the foregoing motion, Arizona argues three points:

1. The Arizona statutes have certain conditions precedent to be complied with before Arizona can be sued by anybody. One of the principal conditions is the filing of a claim with the proper state official.

2. Arizona law never permits suit against Arizona for the negligence of Arizona, its officers or servants.

3. The naming of certain officials of Arizona as third party defendants was without warrant in law.

Grounds 1 and 2 of the memorandum summarized above are arguments that the complaint failed to state a claim upon which relief may be granted. The United States did not reply to the memorandum in writing, but was represented at the oral arguments on the motion to dismiss. The oral arguments are not in the record. Counsel for the United States now says it has information that the trial court based its ruling to dismiss on jurisdictional grounds. Equally well informed, counsel for Arizona says Arizona knows the trial court did not base its ruling on jurisdictional grounds. Such "information," not a part of the record, should have no place in the briefs of either party.

But the United States argues that the wording of the minute entry order of dismissal of October 6, 1952, shows conclusively that the district court based the decision on the ground of a lack of jurisdiction because the dismissal was without prejudice; otherwise, it says, the court would have dismissed the action with prejudice. Moreover, some doubt is expressed by the parties as to the meaning of the order. We take it that when the district court says "* * and it is further ordered that this case be and it is dismissed without prejudice as to the third party defendants" (emphasis supplied), the plain intendment is "dismissed without prejudice to the third party plaintiff as against the third party defendants." In the vernacular, the court must have meant, "The United States can sue Arizona again if it wants to do it." The United States relies on Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C.A., which reads as follows:

"* * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits."

The United States says the district court, having dismissed without prejudice, must be deemed to have put the dismissal on jurisdictional grounds, that if the ground of dismissal had been failure to state a claim, the order to dismiss would have read "with prejudice." But it is equally inferable that the court did intend to dismiss on the ground no claim was stated, but was more generous in the form of the order of dismissal than it should have been.3 If it gave the United States the privilege of filing again, perhaps the state of Arizona could complain. This we do not decide. (Arizona has not appealed.) But the United States cannot complain that it perhaps was given the...

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