William Samuel Bigby v. United States

• Decision Date: 23 February 1903
• Docket Number: No. 111,111
• Citation: 47 L.Ed. 519,188 U.S. 400,23 S.Ct. 468
• Parties: WILLIAM SAMUEL BIGBY, Plff. in Frr. , v. UNITED STATES
• Court: U.S. Supreme Court

188 U.S. 400

23 S.Ct. 468

47 L.Ed. 519

WILLIAM SAMUEL BIGBY, Plff. in Frr.,

v UNITED STATES.

No. 111.

Argued December 4, 5, 1902.

Decided February 23, 1903.

Bigby, the plaintiff in error, claimed in his petition to have been damaged to the extent of $10,000 on account of certain personal injuries received by him while entering an elevator placed by the United States in its courthouse and postoffice building in the city of Brooklyn, and asked judgment for that sum against the government.

The petition was demurred to upon three grounds, namely, that the court had no jurisdiction of the person of the defendant, or of the subject of the action, and did not state facts sufficient to constitute a cause of action against the United States.

The demurrer was sustained by the circuit court on each of the grounds specified, and, so far as it was sustained upon the ground that the petition did not state a cause of action, it was sustained because the action was not authorized by the act of Congress known as the Tucker act, approved March 3d, 1887, chap. 359, and entitled 'An Act to Provide for the Bringing of Suits against the Government of the United States.' 24 Stat. at L. 505 (U. S. Comp. Stat. 1901, p. 752). The action was accordingly dismissed.

The specific allegations of the petition are—

That the United States is a corporation created by the Con- stitution, with its principal office in Washington, and, within the meaning of the New York Code of Civil Procedure, is a foreign corporation;

That on or about November 27th, 1899, the petitioner, while on his way to the office of the marshal of the United States for the eastern district of New York, and at the request of the United States and of its officers, employees, and duly authorized agents, each acting within the scope of his authority, entered into a passenger elevator in the United States courthouse and postoffice building in Brooklyn, which building and elevator was owned and controlled by the United States, and was designed and intended by it for the use of persons on their way to the office of its said marshal;

That the United States 'then and there entered into an implied contract' with the petitioner, 'wherein and whereby, for a sufficient valuable consideration, it agreed to carry your petitioner safely, to operate said elevator with due care, and to employ for the purposes of the operation of said elevator a competent and experienced person;'

That in 'violation of said contract, the United States failed to carry the petitioner safely, or to operate the elevator with due care, or to employ for the operation and to put in charge of such elevator a competent and experienced person, and violated its contract with the petitioner in other ways; and,

That in consequence of said failures, respectively, the petitioner, 'while entering the said elevator without negligence on his part was caused to fall and his foot, ankle, and leg were crushed between said elevator and the top of the entrance into the elevator shaft or a projection in the shaft of said elevator or in some other manner, and the back of your petitioner and other parts of the body of your petitioner were also consequently injured, and your petitioner consequently suffered a laceration of the ligaments of his ankle, and he consequently was caused much bodily and mental pain.'

The transcript contains a certificate from the circuit court to the effect that in said cause the jurisdiction of that court was in issue, and that the question was 'whether a person who is not, and has not been, an employee of the United States, can sue the United States, in the circuit court of the United States, in the district where he resides, to recover damages to the amount of $10,000, which damages were caused by personal injury received by said person through the negligence of an employee of the United States, while said person injured as aforesaid was being carried on an elevator in a public building owned and used by the United States as a postoffice and for other governmental uses and purposes, when said person entered said elevator for the purpose of visiting the office of the United States marshal of such district on official business.'

Mr. Roger Foster for plaintiff in error.

Assistant Attorney General Pradt for defendant in error.

Mr. Justice Harlan delivered the opinion of the court:

This being an action against the United States, the authority of the circuit court to take cognizance of it depends upon the construction of the above act of March 3d, 1887. 24 Stat. at L. 505 (U. S. Comp. Stat. 1901, p. 752).

By that act it is provided that the court of claims shall have jurisdiction to hear and determine 'all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of 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: Provided, however, That nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as 'war claims,' or to hear and determine and the circuit courts of the United States or reported on adversely by any court, department, or commission authorized to hear and determine the same.' The act further provided that 'the district courts of the United States shall have concurrent jurisdiction with the court of claims as to all matters named in the preceding section where the amount of the claim does not exceed one thousand dollars, and the circuit courts of the Uniteed States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars.'

It is clear that the act excludes from judicial cognizance any claim against the United States for damages in a case 'sounding in tort.' But the contention of the plaintiff is, in substance, that, although the facts constituting the negligence of which he complains made a case of tort, he may waive the tort; that his present claim is founded upon an implied contract with the government, whereby it agreed to carry him safely in its elevator, would operate the elevator with due care, and employ for the purposes of such carriage a competent and experienced person; and, consequently, that his suit is embraced by the words 'upon any contract, express or implied, with the government of the United States.' The contention of the United States is that no such implied contract with the government arose from the plaintiff's entering or attempting to enter and use the elevator in question, and that the claim is distinctly for damages in a case 'sounding in tort,' of which the act of Congress did not authorize the circuit court to take cognizance.

Can the plaintiff's cause of action be regarded as founded upon implied contract with the government, within the meaning of the act of 1887?

The precise question thus presented has not been determined by this court. But former decisions may be consulted in order to ascertain whether this suit is embraced by the words, in that act, 'upon any contract, express or implied, with the government of the United States.' Do those words include an action against the United States to recover damages for personal injuries caused by the negligent management of an elevator erected and maintained by it in one of its courthouse and postoffice buildings?

In Gibbons v. United States, 8 Wall. 269, 274, 19 L. ed. 453, 454,—which was an action in the court of claims to recover an amount alleged to have been wrongfully exacted by a quartermaster of the United States in the execution of a contract for the delivery of oats,—this court said: 'But it is not to be disguised that this case is an attempt, under the assumption of an implied contract, to make the government responsible for the unauthorized acts of its officer, those acts being in themselves torts. No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents. In the language of Judge Story, 'it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests.' . . . The language of the statutes which confer jurisdiction upon the court of claims excludes by the strongest implication demands against the government founded on torts. The general principle which we have already stated as applicable to all governments forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties. . . . These reflections admonish us to be cautious that we do not permit the decisions of this court to become authority for the righting, in the court of claims, of all wrongs done to individuals by the officers of the general government, though they may have...