Before BIGGS, Chief Judge, and O'CONNELL and KALODNER, Circuit Judges.
There are two appeals at bar. They can be disposed of appropriately in one opinion. Two suits were brought in the court below because the Gutmanns and the Howeys, the original plaintiffs, riding together as passengers, were injured in a collision which took place in Philadelphia on December 1, 1946 between a taxicab operated by Yellow Cab Company, the original defendant and the third-party plaintiff, and a mail truck operated by an employee of the United States, the third-party defendant. The Gutmanns and the Howeys sued Yellow Cab Company in the two suits referred to, jurisdiction being based on diversity and requisite amount. Thereafter, Yellow Cab filed a third-party complaint in each suit seeking to enforce contribution from the United States.*fn1 See Rule 14(a), Federal Rules of Civil Procedure, 28 U.S.C.A.
The United States, as third-party defendant, filed a motion to dismiss each suit on the ground that the Federal Tort Claims Act*fn2 "does not authorize the maintenance of suits upon derivative claims." These motions were denied and the United States then filed answers. The cases were consolidated for trial and evidence was presented by the plaintiffs, the original defendant and by the third-party defendant. The court below found Yellow Cab Company and the United States both guilty of negligence,*fn3 gave judgments against Yellow Cab in favor of the Gutmanns in the amount of $5,800, in favor of the Howeys in the sum of $2,000, and ordered one-half of the respective amounts to be paid by the United States by way of contribution. The United States then moved to set aside the verdicts on the same ground theretofore asserted, viz., that the F.T.C.A. did not authorize "derivative" suits against the United States. The District Court decided that the third-party actions could be maintained*fn4 and overruled the motions.The United States has appealed.
The United States in its briefs and argument in this court has treated the questions involved as if they were those only of joinder, i.e., as if the issue were: Does the F.T.C.A. permit the United States to be joined with Yellow Cab Company as a party defendant? In the court below, however, at least by way of pleading, emphasis seems to have been laid by the United States on the question as to whether actions for contribution, such as those asserted here against the United States, can be maintained under the applicable Pennsylvania statute, 12 P.S.Pa. § 2081. We will discuss the cases in the first instance as if the primary issue were one of joinder and then endeavor to dispose of the questions presented by the pending actions treating them as, what they in reality are, suits for contribution.
The primary question on the joinder phase of the appeals can be phrased as follows: Did the F.T.C.A. authorize joinder of the United States with another party-defendant or did the Act only authorize suits brought against the United States as the sole or single defendant? Carefully balancing the language of the statute some courts have held that the United States may be joined with another defendant or defendants. See for example Englehardt v. United States, D.Md., 69 F.Supp. 451. Subrogation against the United States also has been permitted. See United States v. Aetna Surety Co., 338 U.S. 366, 70 S. Ct. 207, referred to hereinafter, and the pertinent cases cited therein. Other courts have taken the view that the F.T.C.A. authorized suits against the United States only when it was the sole defendant, basing their conclusions in large part on legislative history. See Drummond v. United States, E.D.Va., 78 F.Supp. 730 and Uarte v. United States, S.D.Cal., 7 F.R.D. 705.*fn5
At the time of the occurrence of the accident the provisions of revised Title 28 United States Code Annotated, were not in effect, the effective date of revised title being September 1, 1948. See Section 38 of the Act of June 25, 1948, c. 646, 62 Stat. 992, 28 U.S.C.A. note preceding section 1. The complaint was filed in the Gutmann case (Civil Action No. 7715 in the court below) on September 9, 1947, and in the Howey case (Civil Action No. 7859 in the court below) on October 27, 1947. Judgments were entered in both cases in the court below on January 4, 1949, the adjudications therefore being made after the effective date of revised Title 28. Section 39 of the Act of June 25, 1948, 28 U.S.C.A. note preceding section 1, provides that "The sections or parts * * * of * * * [the] Statutes at Large enumerated in the following schedule are hereby repealed. Any rights or liabilities now existing under such sections or parts thereof shall not be affected by this repeal." It appears that the F.T.C.A., as amended, was repealed by the Act of June 25, 1948. See the schedule referred to in Section 39, 62 Stat. 1008. It would follow that if a loss of rights would occur if the provisions of revised Title 28 were to be applied, the provisions of the F.T.C.A. as they existed prior to the effective date of the revised title must be deemed to be governing. See note 6 cited to the text in Hoiness v. United States, 335 U.S. 297, 301, 69 S. Ct. 70. In United States v. Aetna Surety Co., 338 U.S. at page 370, 70 S. Ct. 207, 210, at note 5 cited to the text of Mr. Chief Justice Vinson's opinion, reference is made to what may be regarded properly as the key section of the F.T.C.A., viz., Section 410(a), Section 931 of Title 28 U.S.C. (1946 Ed.), and it is stated that "This section is now divided and, with immaterial changes, appears in [revised Title] 28 U.S.C., §§ 1346(b) and 2674, 28 U.S.C.A. §§ 1346(b), 2674."
In the cited case the Supreme Court was considering the effect of R.S. § 3477, the "anti-assignment" statute, 31 U.S.C.A. § 203, and held that an insurance company could bring an action under the F.T.C.A. in its own name against the United States upon a claim to which it had become subrogated by payment to an insured who would have been able to bring such an action. The issue with which we are concerned in the instant case was not precisely in focus in the Aetna Surety Co. decision. We state this because it seems to us possible that the language of Section 1346(b) of revised Title 28 United States Code Annotated, may be somewhat narrower in effect than the pertinent portion of Section 410(a) of the F.T.C.A. 28 U.S.C. (1946 Ed.) § 931(a). We need not determine this question, however, for it is clear that the rights of the parties accrued before September 1, 1948, and, if the language of Section 1346(b) of revised Title 28 be narrower in scope, the instant cases must be determined under the F.T.C.A. as it existed prior to the date last stated. On the other hand if the words of Section 1346(b) do not effect any limitation of the rights of the parties we need not consider them here for it is clear that they work no enlargement. Moreover, the F.T.C.A. as it existed prior to September 1, 1948, must be deemed to give the true congressional intent in respect to the rights of parties under the F.T.C.A. prior to the effective date of revised Title 28. We therefore shall consider the law as it existed prior to revised Title 28 and thus decide the instant cases.
The proponents of the United States as the sole or single party point out that Section 410(a)*fn6 of the F.T.C.A., now 28 U.S.C.A. §§ 1346(b), 2402, and 2674, conferred exclusive jurisdiction upon United States district courts "sitting without a jury" to hear and determine claims "on account of personal injury" caused by the negligent act of an employee of the Government, and that this presupposes a trial with the United States as the sole defendant since the Seventh Amendment requires, unless waived, a jury trial for any other defendant. The proponents of the theory that the United States may be joined as a defendant argue that because Section 410(a) provided that the Government should be liable "under circumstances where the United States, if a private person, would be liable to the claimant for such damage * * * in accordance with the law of the place where the act * * * occurred" and also that "* * * the United States shall be liable in respect of such claims, to the same claimants, in the same manner, and to the same extent, as a private individual under like circumstances * * *", Congress had made the rights and liabilities of the United States equivalent to those of a private litigant and such a waiver of immunity by the sovereign permits its joinder. In modern practice juries very frequently are waived in trials in United States district courts. Had a jury been insisted on by the private defendant in the instant case there was no valid reason why the trial judge and the jury respectively should not have determined the liability of the United States and that of the private defendant. Cf. Elkins v. Nobel, E.D.N.Y., 1 F.R.D. 357.
The United States asserts that since Section 410(b) of the F.T.C.A., now 28 U.S.C.A. § 2676, provided that a judgment against the United States in a Section 410(a) action should constitute a complete bar to any suit brought by the claimant against the employee of the Government whose negligence gave rise to the claim, the negligent government employee could not have been joined as a third-party defendant with the United States as a third-party defendant. Cf. Dickens v. Jackson, E.D.N.Y., 71 F.Supp. 753. But this contention carries little weight respecting joinder or non-joinder of the United States though as a practical matter it has served to eliminate government employees as defendants in most suits.
In some of the cases deciding in favor of non-joinder much is made of the fact that Section 412 of the F.T.C.A., now 28 U.S.C.A. §§ 1291, 1504, 2110, provided an alternative appeal from a judgment of a United States district court either to the appropriate court of appeals or to the Court of Claims of the United States. Section 412 provided, if the appeal was to the Court of Claims, that the notice of appeal, required by Rule 73, F.R.C.P., should have endorsed upon it the written consent of all the appellees to the appeal as taken. Putting aside questions as to the power of Congress to have provided for an appeal from an Article III court to an Article IV court or to have conferred upon the Court of Claims of the United States in the terms of Section 412 "* * * the same powers and duties [respecting appeals] as those conferred on a * * * court of appeals", it can be cogently argued that since the United States can be the only defendant in a suit in the Court of Claims, it must have been the congressional intent that the United States should be the sole appellant or the sole appellee in a suit arising under the F.T.C.A. for otherwise the Court of Claims might have been compelled to deal with the rights and obligations of the United States as a defendant in conjunction with those of other defendants, a course theretofore prohibited to it. Thus argument has weight.*fn7 Cf. §§ 1504 and 2106 of revised Title 28 United States Code Annotated.
Section 420 provided a period of one year for bringing suit on account of personal injuries. Cf. 28 U.S.C.A. § 2401(b), as amended. Many of the statutes of limitations of the States governing suits for personal injuries are of longer duration.In Pennsylvania the limitation upon suits for personal injuries is two years. See 12 P.S.Pa. § 34. It can be argued therefore that Congress did not intend to permit joinder because a private defendant might be kept in the suit while the United States was eliminated. Such a result would be somewhat anomalous but as was pointed out by Judge Yankwich in 9 F.R.D. 143, at pp. 153-154, the F.T.C.A. was a statute of creation.
Section 422, now 28 U.S.C.A. § 2678, provided for the payment of attorney's fees by the United States in the cases of successful litigants and prescribed criminal penalties for any attorney whose compensation exceeded 20% of the sum recovered under the F.T.C.A. It is said that joinder of the United States with a private defendant would have rendered such a provision inoperable. This position is untenable.
There are other considerations advanced by Yellow Cab or in the decided cases, which require discussion. Section 411, now repealed in pertinent part,*fn8 provided expressly that the practice and procedure under the F.T.C.A. should be in accordance with the Federal Rules of Civil Procedure.This was a shotgun proviso, however, and though it is urged, ...