an employee of the District for loss of or damage to property or for personal injury, including death, resulting from the operation by such employee of any vehicle if it be alleged in the complaint or develop in a later stage of the proceeding that the employee was acting within the scope of his office or employment, unless the District shall, in an action brought against it for such damage or injury, including death, specifically deny liability on the ground that the employee was not, at the time and place alleged, acting within the scope of his office or employment. If in any such civil action or proceeding pending in a court in the District of Columbia as of the effective date of this Act the District has not been named as a defendant, said District shall be joined as a defendant and after its answer has been filed and subject to the provisions of the preceding sentence, the action shall be dismissed as to the employee and the case shall proceed as if the District had been a party defendant from the inception thereof.'
It is the defendant's contention that, according to the Barrick
cases decided by the Municipal Court of Appeals for the District of Columbia, now the District of Columbia Court of Appeals, this Act cannot be applied retroactively to accidents arising out of the operation of an emergency vehicle on an emergency run.
This Court, however, sees nothing inconsistent in the Barrick and Gibbs cases with the position taken by the plaintiff here. In the Barrick case, the owner of a parked car was struck by an ambulance owned by the District of Columbia. Barrick, the owner of the car, then sued Swenson, the driver of the ambulance, in the Municipal Court, now the District of Columbia Court of General Sessions, to recover for the damages done. From an adverse judgment, Barrick and his insurer appealed, pointing out:
'* * * that when the accident occurred on January 18, 1959, they were immediately vested with the common-law right to sue the driver and prove only ordinary negligence against him to recover damages. By passage of the Act eighteen months after the accident occurred, however, they were divested of their right to sue the driver and forced to proceed against the District in a suit that required them to prove gross negligence.' Barrick et al. v. District of Columbia, supra, 173 A.2d p. 375.
Judge Hood, writing for the Court held, 'As the effect of the D.C. Employee Non-Liability Act is to retroactively divest appellants of their common-law right of action to recover against the ambulance driver on proof of ordinary negligence and allows recovery against the District of Columbia only on proof of gross negligence, we are forced to declare that the Act in its application to the facts of this case results in an unconstitutional deprivation of appellants' property right.'(Emphasis supplied.)
Gibbs was decided on the same rationale as Barrick. In that case, too, the statute was enacted after the accident (five months) and to apply it retroactively would have deprived the plaintiff of a vested right.
Barrick and Gibbs hold only that Sec. 3 and Sec. 6 do not apply to accidents occurring before the effective date of the Act, insofar as they require a plaintiff not to sue the District employee, and limits his right to recover against the District only for gross negligence in the operation of an emergency vehicle on an emergency run.
This statute is too clear to interpret it in any other way than that Congress intended it to apply retroactively as well as prospectively. Since retroactivity by itself does not make a statute invalid, it should be applied retroactively unless to do so would be unconstitutional.
In the present suit, retroactive application would not unconstitutionally deprive the plaintiffs of a vested right because their cause of action is not against the driver of the fire truck, but against the District of Columbia.
The Constitution does not forbid the creation of new rights to attain a permissible legislative intent,
and this new right the plaintiff have chosen to use in this action.
It is ordered that the motion to dismiss be and hereby is denied.