were being deprived of a vested right to prove ordinary negligence against the driver, the trial court granted the motion, dismissed the suit against the driver, and substituted the District as the new defendant. After the pretrial order was amended to permit the plaintiffs to allege gross negligence, the trial commenced and resulted in a directed verdict for the District of Columbia.
Referring to this specific provision, the appellate court held, in an opinion by Judge Hood, that 'Congress intended it to apply retroactively, as well as prospectively.' 173 A.2d at 375. Moving, then, to the question of constitutionality, the Court found:
'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 added.) 173 A.2d at 376.
The United States Court of Appeals for the District of Columbia, after briefly summarizing the above-noted decision, affirmed the judgment of the Municipal Court of Appeals on the basis of Judge Hood's opinion. Swenson v. Barrick, supra.
Clearly, the Barrick decision, which was expressly limited to the application of Section 6 of the Act to the facts of that case, has no bearing on the present case. Here, no suit has ever been instituted against the driver of the fire truck, and no action based on this accident was pending in any District of Columbia court against anyone 'as of the effective date of this Act.' Section 6, therefore, cannot have any application to the facts in this case, retroactively or otherwise, irrespective of whether such an application would be constitutional.
The only remaining section of the Act under which the District could be held liable for the negligence of its employees is Section 3, but, as indicated above, the plain meaning of that section manifests an intent on the part of Congress that it should not be applied retroactively. Therefore, the Act does not apply to the facts of this case, and the Court must hold that the plaintiff has failed to state a claim under the Act. Consequently, the Court need not consider the issue of the constitutionality of applying this Act to the facts of this case.
This Court's conclusion that the Act was not intended by Congress to be applied retroactively against the District in those instances in which an employee of the District was not a defendant in a suit pending at the time of the effective date of the Act is in accord with the purpose of and need for the Act, as stated in the Senate Report recommending the passage of this legislation:
' The purpose of this bill is to deny to the District of Columbia, in suits on claims arising out of the negligent operation of vehicles owned or controlled by it and operated by its employees in the performance of their official duties, the defense of governmental immunity, and to relieve such employees of liability in such cases to third persons. 'The bill is designed to relieve employees of the District of Columbia from personal liability for damages arising out of their operation of vehicles within the scope of their employment by prohibiting the District of Columbia from asserting the defense of governmental immunity in suits where claim is made as a result of such operation of vehicles.' (Emphasis added.) S.Rep. No. 1815, 86th Cong., 2d Sess. 1-2 (1960).
In passing this Act, the Congress took into consideration the conflicting interests among the District employees, the District itself, and the person who has suffered injury or loss as a result of such alleged negligent operation, S.Rep. No. 1815, at 2; and in balancing these various interests in favor of the employee, Congress sought to substitute the District as a party defendant in those suits in which an employee faced liability at the time the Act became law. There is no support in either the language of the statute or its legislative history for a contention that, to accomplish the statute's stated purpose, Congress contemplated making the District amenable to suit in cases where the accident occurred before the passage of the Act but in which no action was brought against the employee involved.
Absent a claim under the D.C. Employee Non-Liability Act, the plaintiff's case is governed by the law in the District of Columbia as it existed on the day of the accident -- January 22, 1960. It can hardly be disputed that the defense of governmental immunity asserted by the District of Columbia government is an effective bar to a suit by the plaintiffs against the District under the stipulated facts of this case. The very statute upon which the plaintiffs exclusively relied in their complaint was enacted to overcome this segment of the long-standing common-law rule of sovereign immunity, which the Court of Appeals in this circuit has repeatedly held requires an Act of Congress to abolish, in whole or in part. See Urow v. District of Columbia, 114 U.S.App.D.C. 350, 316 F.2d 351, 352 n. 2. Ample case law in this jurisdiction likewise supports the proposition that the District government is immune from suit in a case arising out of the negligence of one of its employees in operating a fire truck on an emergency run. See Harris v. District of Columbia, 256 U.S. 650, 653, 41 S. Ct. 610, 65 L. Ed. 1146; District of Columbia v. May, 63 App.D.C. 10, 68 F.2d 755, 756, 757, cert. denied 292 U.S. 630, 54 S. Ct. 641, 78 L. Ed. 1484; Leas v. District of Columbia, D.C.Mun.Ct.App. 135 A.2d 462, 464.
In view of the Court's disposition of this particular ground, it is unnecessary to consider the additional grounds raised by the defendant in support of his motion.
For the foregoing reasons, the motion of the defendant, District of Columbia, for judgment notwithstanding the inability of the jury to reach a verdict is granted.
Counsel will prepare an appropriate order.