herein and adhere to the decision reached by me in 1954 in the Christie case, supra.
The Federal Tort Claims Act was enacted in 1948 and provided that the United States 'shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *.' 62 Stat. 983, 28 U.S.C. § 2674.
The Supreme Court in United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523, has held that the Federal Tort Claims Act empowers the United States District Court to require the United States to be impleaded as a third party defendant and to answer the claim of a joint tortfeasor for contribution as if the United States were a private individual. But in the Yellow Cab case, supra, and in its companion case of Capital Transit Co. v. United States, 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523, the plaintiff was a non-employee of the United States. Here, the male plaintiff Busey was an employee of the United States and has received compensation under the Compensation Act originally enacted in 1916, but amended in 1949, to include the exclusive liability provision herein referred to. The Yellow Cab case, supra, therefore, provides no authority against the position of the United States in this case.
So far as the Weyerhaeuser case, supra, is concerned, the Supreme Court has held only that this exclusive liability provision does not limit the admiralty rule of divided damages in mutual fault collision cases. The Court pointed out that the case involved 'a rule of admiralty law which, for more than 100 years, has governed with at least equal clarity the correlative rights and duties of two shipowners whose vessels have been involved in a collision in which both were at fault.' It further called attention to the fact that the Court long ago had 'held that the full scope of the divided damages rule must prevail over a statutory provision which, like the one involved in the present case, limited the liability of one of the shipowners with respect to an element of damages incurred by the other in a mutual fault collision.' The Court made clear that its decision in the Weyerhaeuser case, supra, was limited to admiralty cases involving mutual fault collisions, relying in part at least on the antiquity of the admiralty rule of divided damages.
In this connection it is significant that three weeks after its decision in Weyerhaeuser, supra, the Supreme Court in the Treadwell case, supra, which was not in admiralty, but identical in its legal aspects with the case at bar, did not reverse the Court of Appeals with direction to reinstate the judgment theretofore entered by the District Court, but vacated the judgment of the Court of Appeals and remanded the case to the District Court for further consideration in light of the Weyerhaeuser case, supra.
Moreover, I cannot equate the law of contribution, of comparative recent origin in this jurisdiction, George's Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219, with the ancient rule of divided damages in admiralty. While there may be a similarity between the two doctrines, there is a vast difference in their concept and application. There are numerous examples of this difference. In admiralty, the law requiring contribution is part of the original tort, but as between joint tortfeasors it is not.
Under Rule 14, Federal Rules of Civil Procedure, a party may not be impleaded simply because he may be liable to the injured plaintiff, but only if he is or may be liable to the impleading defendant for all or part of the plaintiff's claim against him. Under Admiralty Rule 56, 28 U.S.C.A. 119, a party may be impleaded upon either ground.
Under Admiralty Rule 56, supra, the libelant is entitled to recover against an impleaded respondent for damages caused by the latter's negligence, and the case is treated as if the libel had originally been filed against such impleaded respondent.
Also in the event the libelant in admiralty cannot collect from respondent, the amount due may be assessed against the respondent impleaded.
Under Rule 14, Federal Rules of Civil Procedure, a third party action adjudicates the rights of the original defendant and the third party defendant, inter sese, but does not permit a judgment directly for plaintiff against a third party defendant.
So much for the difference in concept and application between the Admiralty Rule of divided damages and the law of contribution.
In the Weyerhaeuser case, supra, the Supreme Court stated that the legislative history of the Compensation Act shows that the concern of Congress was to provide federal employees a swift, economical and assured right of compensation for injuries arising out of the employment relationship, regardless of the negligence of the employee or his fellow servants or the lack of fault on the part of the United States.
But Congress has also evinced a concern for eliminating needless and expensive litigation. For example, the Senate Report,
explained the purpose of adding the exclusive liability amendment, as follows:
'Thus, an important gap in the present law would be filled and at the same time needless and expensive litigation will be replaced with measured justice. The savings to the United States, both in damages recovered and in the expense of handling the lawsuits, should be very substantial and the employees will benefit accordingly under the Compensation Act as liberalized by this bill.'
To permit third party plaintiffs, as here, to recover contribution from the United States for one-half of the amount defendants are answerable in damages for injuries to plaintiffs would appear to be contrary to the Congressional purpose to save the United States from any additional burden on the public treasury. It should be noted that Congress added the exclusive liability provision to the Act amending the Compensation Act more than a year after Congress enacted the Federal Tort Claims Act containing extensive coverage.
To point up the financial effect of permitting contribution in cases of this character, the record herein is worthy of consideration. To date the United States has paid $ 15,000 to the male plaintiff as compensation under the Compensation Act. The verdict and judgment is his favor is for $ 37,000. The amount payable by the United States as compensation in the future is problematical depending upon the future health and life of plaintiff. At the present time, if the United States were required to pay contribution of one-half of the judgment of $ 37,000 or $ 18,500, awarded to the male plaintiff, it would recover $ 15,000 by refundment from him of the compensation already paid,
but would pay $ 3,500 in excess of its present liability under the Compensation Act.
While this payment would go to the Salvage Co., directly by way of contribution, by indirection it would inure to the benefit of the plaintiff and would be in excess of compensation at present allowable under the Compensation Act. In addition, the female plaintiff has been awarded a verdict and judgment in the amount of $ 40,000 for loss of consortium,
and the United States would be required to pay, if contribution were allowed, one-half of that amount, or $ 20,000 to the Salvage Co., which amount by indirection, would inure to her benefit from the United States. This could never be recaptured by the United States.
Further, as stated by the Supreme Court in Bradford Elec. Co. v. Clapper, 286 U.S. 145, 52 S. Ct. 571, 76 L. Ed. 1026, the purpose of Workmen's Compensation Statutes such as the one herein involved, is not only to provide for employees 'a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate.' (Italics supplied) To permit contribution against the United States would not be in keeping with this purpose, inasmuch as the liability of the employer, the United States in this case, would cease to be limited and determinate.
Also it should be borne in mind that the Federal Tort Claims Act provides that the United States 'shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances.' It appears that in a vast majority of the States which allow contribution between joint tortfeasors, recovery against an employer is prohibited under the compensation laws.
In this District, the majority rule has been followed.
Under such rule, if the United States is 'liable * * * to the same extent as a private individual under like circumstances,' as an employer, it would not be liable for contribution herein.
In this jurisdiction a spouse may not recover for loss of consortium where workmen's compensation has been paid
under the Longshoremen's and Harbor Workers' Act, hereinafter referred to as the Harbor Workers Act,
made applicable to the District of Columbia. But in this case, if contribution is allowed, she would recover for loss of consortium, although the exclusive liability provision in that Act is nearly identical with that contained in the Compensation Act.
In Ryan Stevedoring Co. v. Pan-Atlantic Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133, referred to and discussed in the Weyerhaeuser case, supra, the Supreme Court held that the exclusive liability provision in the Harbor Workers' Act did not bar recovery by a third party from an employer which had paid compensation, but the basis for its decision in the Ryan case, supra, was the existence of a contractual relationship between the third party and the employer and not a joint tort. And in the Smither case, supra, the United States Court of Appeals for this circuit, in holding that the wife of an injured employee is barred by the exclusive liability provision of the Harbor Workers' Act from maintaining an action against his employer for loss of consortium, pointed out that reliance on the Ryan case, supra, was misplaced, inasmuch as recovery was allowed there on the basis of a contract of indemnity and not on tort.
For the foregoing reasons and under the well settled law that the United States is immune from suit save as it consents to be sued, and the consent must be strictly construed,
I have reached the conclusion that the Weyerhaeuser case, supra, is not controlling in the case at bar in that it should be limited to Admiralty cases of the character involved therein, and that the exclusive liability provision of the Compensation Act constitutes a legal bar to the recovery of contribution from the United States by the third-party plaintiff herein. The United States is therefore entitled to judgment in its favor on the third party claim against it.
In their motion for a new trial, included in their motion for judgment n.o.v., defendants claim that the court erred in failing to require the United States to be made a party plaintiff as the real party in interest. In this connection the Compensation Act provides that:
'If an injury * * * for which compensation is payable * * * is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, the commission may require the beneficiary to assign to the United States any right of action he may have to enforce such liability of such other person or any right which he may have to share in any money or other property received in satisfaction of such liability of such other person, or the commission may require said beneficiary to prosecute said action in his own name.' 39 Stat. 747, 5 U.S.C. § 776.
In this case there was no assignment, and the evidence did not disclose that there was any refusal on the part of the male plaintiff to make an assignment. Under these circumstances, absent an assignment, I find no error in failing to require the United States to be made a party and in support of this view rely on the case of Louisville & Nashville Railroad Company v. Rochelle, 252 F.2d 730, C.C.A. (Sixth Circuit) and authorities collected therein.
Defendants also contend in their motion that the submission to the jury of the additional element of proximate cause, in relation to their claim of contributory negligence, was erroneous, in that a violation of the traffic regulation involved herein, if found by the jury, 'was both negligence per se, and the proximate cause of the injury.' In support of this contention, defendants argue that the injury suffered by the male plaintiff is the very injury the regulation was designed to prevent, because its sole purpose is 'to prevent injury to passengers in the event of a sudden stop of the vehicle.' (Italics supplied. Quotations from defendant's Supplemental Memorandum) Defendants cite principally Janof v. Newsom, 60 App.D.C. 291, 53 F.2d 149, and Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, as a § basis for this contention. I am of the opinion, in the first place, that the regulation in question had other purposes than to prevent injury in the event of a 'sudden stop,' e.g., to prevent injury in the event of severe jolting over a rough highway, or while proceeding speedily around a curve, or while riding on the outside of the vehicle. But aside from this, the United States Court of Appeals recently has spoken on the subject in Richardson v. Gregory, 108 U.S.App.D.C. 263, 281 F.2d 626 (1960), wherein the court said:
'Thus a correct instruction on violation of a traffic regulation embraces the idea that violation of a regulation which was made for the protection of one in plaintiff's position is in and of itself negligence in the sense that it is conclusive evidence of failure to exercise due care on the part of the defendant. But it must be made equally clear to a jury that this negligence does not produce legal liability unless the jury finds that such negligence is the proximate cause of the injury.'
I have given consideration to the other points relied on by defendants in their motion for a new trial and do not find that they constitute a legal basis for a new trial. Counsel will submit on notice an order denying the motion for judgment n.o.v. or for a new trial, and a judgment finding in favor of the United States on the third party claim against it.