The opinion of the court was delivered by: Campbell, District Judge.
On March 30, 1952, two automobiles were involved in an accident
in Chicago, Illinois. One automobile was driven by Maurice
Sullivan, the other by Daniel Thomas, an agent of the Federal
Bureau of Investigation. At the time of the accident, Thomas was
acting within the scope of his employment. Sullivan now brings
suit against the United States and Thomas, as co-defendants,
under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b). The
United States admits that it is amenable to suit under the Act,
but denies that Thomas is properly joined as a defendant, and
moves that he be dismissed on the ground that both he and
Sullivan are citizens of the State of Illinois. The United States
further moves that it be granted leave to file a third-party
complaint against Thomas. The proposed third-party complaint
demands judgment against Thomas in any amount recovered by
Sullivan from the United States.
It is clear that the government's first motion, asking that
Thomas be dismissed as a defendant, should be granted. Even if
Federal Rule 20, 28 U.S.C.A., which governs joinder of parties
defendant, were operative in suits brought under the Tort Claims
Act, as the decision in United States v. Yellow Cab Co.,
340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, seems to indicate, a plaintiff
must allege independent jurisdictional grounds to support his
claim against a private tort-feasor. In the instant case,
Sullivan has failed to allege such independent jurisdictional
grounds, and therefore Thomas may not be joined as a defendant.
The government's second motion, asking to implead Thomas as a
third-party defendant, presents a more difficult issue. There was
a time when the weight of judicial opinion forbade the employment
of Federal Rule 14, which governs third-party practice, in suits
brought under the Tort Claims Act. See, for example, Uarte v.
United States, D.C., 7 F.R.D. 705; Prechtl v. United States,
D.C., 84 F. Supp. 889; Donovan v. McKenna, D.C., 80 F. Supp. 690.
However, the Supreme Court made clear in United States v. Yellow
Cab Co., supra, that the government has consented, through the
Act, to be impleaded as a third-party defendant in suits against
joint tort-feasors. This decision is grounded upon a practical
consideration, for the joint tort-feasor might sue the government
for contribution in a separate action under the Act after
judgment is entered for plaintiff. It is therefore sound policy,
within the spirit of Rule 14, to consolidate both causes of
action — that of the plaintiff against the private joint
tort-feasor and that of the private joint tort-feasor against the
government — for a single trial. Any procedural obstacles posed
by such a trial may be met by the exercise of the discretion
granted to the trial court by Rule 14. With respect to the
government's right to implead a private joint tort-feasor as
third-party defendant, the Court stated, 340 U.S. at pages
551-552, 71 S.Ct. at page 405:
"* * * there is no immunity from suit by the
Government to collect claims for contribution due it
from its joint tort-feasors. The Government should be
able to enforce this right in a federal court not
only in a separate action but by impleading the joint
tort-feasor as a third-party defendant."
Clearly then, Rule 14 may be employed in suits brought under the
Act by either the plaintiff or the government. That is not to
say, however, that Rule 14 serves to enlarge the liability of any
party: the Rule does nothing more than permit a defendant to
implead a third party "who is or may be liable to him for all or
part of the [plaintiff's] claim". Therefore, the government's
motion to implead its agent in the instant case is necessarily
grounded upon the theory that the agent may be required to
indemnify the government for any judgment entered for plaintiff.
If that theory is unsound, the motion must fail.
The government's theory has already been tested and found
erroneous in Gilman v. United States, 9 Cir., 1953, 206 F.2d 846.
The Court there held that Section 2676 of Title 28, which is part
of the Tort Claims Act, bars the government's right of indemnity
against its negligent employee. That Section provides:
"The judgment in an action under section 1346(b) of
this title shall constitute a complete bar to any
action by the claimant, by reason of the same subject
matter, against the employee of the government whose
act or omission gave rise to the claim."
As the Gilman opinion points out, Section 2676 erases any
obligation the employee might have had to the claimant, and, a
fortiori, any obligation the employee might have had to the
government as an indemnitor. The legislative history of the
Section, which supports this result, is aptly described in the
Gilman opinion, and need not be repeated here.
It is sufficient to say that Congress has decided that the
government should bear the cost of the negligent acts of its
employees. If the procedure now proposed by the government were
adopted, that cost would invariably be shifted to the employees
and their insurers. For that reason, the government's second
motion must be denied.
Accordingly, the motion of the United States that Daniel Thomas
be dismissed as a party defendant is granted, and the motion of
the United States for leave to file a third-party complaint
against Daniel Thomas is denied.
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