Vietzke v. Austin Co.

• Court: U.S. District Court — District of Washington
• Writing for the Court: SCHWELLENBACH
• Citation: Vietzke v. Austin Co., 54 F.Supp. 265 (E.D. Wash. 1944)
• Decision Date: 23 February 1944
• Docket Number: Civil Action No. 147.
• Parties: VIETZKE v. AUSTIN CO.

54 F. Supp. 265

VIETZKE v. AUSTIN CO.

Civil Action No. 147.

District Court, E. D. Washington, S. D.

February 23, 1944.

COPYRIGHT MATERIAL OMITTED

E. K. Brown, of Ellensburg, Wash., and M. M. Moulton, of Kennewick, Wash., for plaintiff.

Holman, Sprague & Allen and Charles I. Stone, all of Seattle, Wash., and Cameron Sherwood, of Walla Walla, Wash., for defendant.

SCHWELLENBACH, District Judge.

This is an action for the conversion of two trucks. The plaintiff owned the trucks and in April, 1942, leased them to defendant for use by the defendant on a project which it was constructing under contract with the United States Navy at Pasco, Washington. The defendant contends that it, as an agent for the Navy, had an option to purchase the trucks and that it exercised that option on July 27, 1942. It had paid the rent up to July 1, 1942, prior to the commencement of this action and has deposited the rent from July 1 to July 27 with the Clerk of the Court. At the conclusion of the trial, I discussed the testimony in detail and made a finding of fact that there had been no option agreement. A reading of the transcript of the testimony which defendant has furnished me has strengthened my belief as to the correctness of that conclusion. I have no doubt that the plaintiff never agreed to option his trucks and that whenever defendant contended that he had optioned them, he protested. The testimony of plaintiff and his witnesses on this point is clear and convincing, while that of the defendant's witnesses is not convincing.

Defendant contends that it merely acted as an agent for the United States Navy and that its seizure of these two trucks was an exercise of a power to requisition private property for war purposes essentially inherent in the sovereign. See: 67 C.J. 373. It contends that since it was the mere agent of the United States, that the United States is the real and indispensable party in interest and that, therefore, it is immune from suit. In support thereof it relies on Fletcher v. Maupin, 76 U.S.App.D.C. 63, 129 F.2d 46, and Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554, and Lester v. G. L. Tarlton Contractor, Inc., D.C., 45 F.Supp. 994, 995. I entertain grave doubts as to the right of the Government to farm out its requisitioning power to a private individual or corporation. The breadth of the implications of evil possibly involved by such an extension of the doctrine is almost limitless. I think I have a full comprehension of the necessities implicit in our present task of winning the war. I find it difficult, however, to believe that such necessities encompass the need to sanction the wholesale delegation of war powers by even junior military and naval officers to such individuals and corporations as may be deemed convenient. Fortunately, it is not necessary to reach this point in order to decide this case. As Chief Justice Marshall said in United States v. Peters, 9 U.S. 115, 139, 5 Cranch 115, 139, 3 L.Ed. 53: "* * * it certainly can never be alleged, that a mere suggestion of title in a state, to property in possession of an individual, must arrest the proceedings of the court and prevent their looking into the suggestion, and examining the validity of the title." Mr. Justice Miller, in United States v. Lee, 106 U.S. 196, 221, 1 S.Ct. 240, 261, 27 L.Ed. 171, in the celebrated case involving the Lee House in Arlington Cemetery, had this to say on the subject: "It cannot be, then, that when in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court, `Stop, here; I hold by order of the President, and the progress of justice must be stayed.' That, though the nature of the controversy is one peculiarly appropriate to the judicial function, though the United States is no party to the suit, though one of the three great branches of the government to which by the constitution this duty has been assigned has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the secretary of war, which that officer had no more authority to make than the humblest private citizen." The dividing line between cases in which officers or agents of the Government can claim immunity in litigation is pointed out by the Supreme Court in Yearsley v. W. A. Ross Construction Company, supra, 309 U.S. at page 21, 60 S.Ct. at page 414, 84 L.Ed. 554, as follows: "Where an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred." This is the same doctrine which the Supreme Court accepted in Ickes v. Fox, 300 U.S. 82, 97, 57 S.Ct. 412, 418, 81 L.Ed. 525, when it quoted with approval the following language from Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 32 S.Ct. 340, 344, 56 L.Ed. 570: "The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. * * * And in case of an injury threatened by this illegal action, the officer cannot claim immunity from injunction process." Similar holdings by the Supreme Court are Noble v. Union River Logging R. Co., 147 U.S. 165, 171, 13 S.Ct. 271, 37 L.Ed. 123; Tindal v. Wesley, 167 U.S. 204, 221, 17 S.Ct. 770, 42 L.Ed. 137; Payne v. Central Pacific Ry. Co., 255 U.S. 228, 238, 41 S.Ct. 314, 65 L.Ed. 598; Goltra v. Weeks, 271 U.S. 536, 544, 46 S. Ct. 613, 70 L.Ed. 1074.

Clearly, an agent of the Government whose power stems exclusively from a contract occupies no higher position than does a duly appointed and constituted officer of the Government. If a cabinet officer is not immune, this defendant can not claim the protection of the cloak of immunity. I can find nothing of benefit to the defendant in the three cases on which it relies. Fletcher v. Maupin, supra, and Yearsley v. W. A. Ross Construction Co., supra, both involve legal acts within the scope of the authorization. All that Lester v. G. L. Tarlton Contractor, Inc., supra, holds is that when a party claims immunity as a government agent, he is entitled to assert that immunity in a Federal court.

That defendant's seizure of plaintiff's trucks was illegal and unauthorized by the Navy can not be doubted. In support of its position, defendant called A. F. Ghiglione, Lieutenant Commander and Resident Officer in charge of defendant's naval contracts. In presenting this witness, counsel for defendant made the following statement: "However, this is a type of contract, cost plus fixed fee, that was used at that time and it is very flexible and provides for a large degree of discretion and control by the resident officer in charge, and what I am attempting to get now is a statement from the resident officer in charge of some act in his behalf as to what was the direction to the Austin Company under 4210." The Commander testified as follows:

"Q. In other words, you have never attempted to hold or to obtain equipment unless it was on the basis of what you understood to be an agreement—A. That is right

"Q. —which had been,—a contract which had been agreed to by the third party from whom the equipment was being obtained? A. That is right

"Q. (By the Court) Have you ever authorized the Austin Company to take property? A. No, sir.

"Q. (By the Court) Except under a claimed option? A. No, sir

* * * * *

"Q. (By the Court) What would be the policy of the Navy, Commander, if the Austin Company would go without any authority, without any agreement, or contrary to an agreement, and take property; would the Navy approve of such a taking and assume responsibility for the payment of it? A. No, sir, we would not. I can think of no cases we would have arising in that respect. And we audit all payments. And we would deduct it from subsequent vouchers if we did pay for such an act,—that is, to the Austin Company.

"Q. (By the Court) If you found out afterwards that it had not been taken in conformity with your prescribed procedure, even though you have ratified it by paying it—A. We would later deduct it from a subsequent payment, yes.

"Q. (By the Court) And would repudiate the ratification? A. Yes, sir.

The Commander later testified that under such an assumed set of facts he had the authority to repudiate the ratification without consultation with the Bureau of Yards and Docks at Washington.

Under these circumstances, the defense that defendant was acting on behalf of the Navy necessarily falls. Since the defendant had no option agreement with the plaintiff, what was done was unauthorized and necessarily illegal. It comes directly within the rule laid down in the many Supreme Court decisions to which I have adverted.

Defendant contends that plaintiff is estopped to assert that he had not optioned these trucks. This is based upon the theory that at some time in June, 1942, he understood from a conversation with one Mendenhall, who was equipment clerk for defendant on the Pasco job, that the defendant claimed an option and that by accepting rental thereafter his mouth is closed to assert that no option existed. I will not stop to consider the question of defendant's right to assert this defense without pleading it. This defense does not find support either in the testimony or the law. Plaintiff's testimony concerning the Mendenhall conversation included the following:

"Q. But in any event, you were advised that the option was to be exercised to take over your equipment by either The Austin Company or the Navy? A. I was advised they were going to take it over, yes.

"Q. And at that time did...