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April 5, 1957

The CITY OF NEWARK, a Municipal Corporation of the State of New Jersey, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: HARTSHORNE

The City of Newark sues the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, for damages to an ambulance of the Newark City Hospital, resulting from a collision with a United States mail truck at a street intersection in downtown Newark. The United States counterclaims for damages to the mail truck arising from the same accident.

The Federal Tort Claims Act provides in part:

 'The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances * * *.' Sec. 2674.

 The New Jersey Traffic Act provides:

 'The driver of a vehicle upon a highway shall yield the right of way to * * * United States mail vehicles * * * and hospital ambulances, when they are operated on official business * * * and the drivers thereof sound audible signal * * *. This section shall not operate to relieve the driver of any such vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequences of an arbitrary exercise of the right of way.' N.J.S.A. 39:4-91.

 The testimony at the hearing clearly indicated that both drivers were at fault. The ambulance was proceeding South on Mulberry Street, a fairly wide one-way street going South, to its emergency destination on the West side of Mulberry Street just South of its intersection with Lafayette Street, when it collided with the mail truck, which was proceeding Westerly across Mulberry on Lafayette Street, but which had practically stopped just previously, on arriving at the intersection. The red light had just turned against the ambulance as it neared the intersection and in favor of the mail truck. Both the impartial witnesses and the fact that the ambulance driver was coming to a stop just across the intersection, make it clear that while the latter had been sounding his siren further North on Mulberry Street, he had not sounded it when close to the intersection, so that it was not 'audible' as he crossed against the red light. He thus did not qualify for the right of way advantage which the above statute gave him otherwise. Since the mail truck was sounding no audible siren or other similar signal, it had no right of way under such statute. Furthermore, its driver admitted he saw the revolving red light on the top of the ambulance as he started to cross Mulberry Street. Finally, since the impact occurred within the intersection, but near its Southwest corner, both vehicles had crossed the bulk of this rather wide intersection, with each other in full sight, before they struck. Both drivers were thus clearly negligent.

 The negligence of the mail truck driver, imputable without question to his employer, the United States, clearly establishes that judgment on the Government's counterclaim must be entered for the City.

 On the question whether the negligence of the Hospital ambulance driver is also to be imputed to his employer, the City, so as to require a dismissal of the main suit by the City against the United States, the Government makes two separate contentions: (1) That under the Federal Tort Claims Act the test of tort liability should be that of 'a private individual', not only as to the defendant Government, as the statute expressly requires, but also as to the plaintiff City. In other words, the contention is that the City, by suing under the Federal Tort Claims Act, waives whatever protection it has as a municipality under New Jersey tort law, and therefore the normal rule applies as to imputing the negligence of a servant to his master, whether that master be plaintiff or defendant. The United States contends (2) that even under New Jersey municipal tort law, the negligence of the ambulance driver is imputed to the City, which therefore can not recover because of such contributory negligence.

 As to the first of the above points, i.e., whether a plaintiff under the Federal Tort Claims Act must, even if a city or a state, lose its status as such, under the tort law of the state where the accident occurred, and sue 'as a private individual', admittedly there is nothing whatever in the words of the statute itself -- the sole basis of the right to sue -- which so states. Moreover, the United States admitted in open court that the legislative history of that Act, not presently available to the Court, contains nothing to that effect. The burden of the Government's argument in that regard was (a) that it was but fair, since the United States waived its governmental status in the Act, for the other side to be deemed to have waived any similar status. More specifically, the contention is that this fairness of itself proved that Congress had that intent. But after all, the intention of Congress must normally be ascertained from what it said both in the Act and in the legislative history of the Act. Admittedly there is nothing in the words of the Act, or in its legislative history, which will support the above contention, and after all, that contention is one as to policy. Furthermore, there is grave question whether such a situation would in fact be either fair or in accord with the expressed intent of Congress. For if the Act were so construed, the United States would then recover from a city in such an accident case, not as 'a private individual' would, but under much more favorable law than could 'a private individual'. This contention is incorrect. (b) The Government's next contention along this line is that because a state, and a fortiori, its governmental subdivision, a municipality, can be sued by the United States, therefore when it is sued, or conversely, when it sues, it loses its status under substantive law as such a sovereignty or quasi sovereignty. It is of course quite true that the United States may sue a state, and a fortiori, its subordinate, a municipality. United States v. Texas, 1892, 143 U.S. 621, 12 S. Ct. 488, 36 L. Ed. 285, will suffice as authority therefor. But the Government's argument confuses two entirely different legal concepts. The one just alluded to is that of the immunity of a sovereignty from suit at all. Entirely different and distinct is the concept as to the extent of the liability of such sovereignty or quasi sovereignty, when it has been sued. This depends upon the principles of the substantive law, either tort or contract, or otherwise, as affecting that entity, in its nature as a sovereignty or quasi sovereignty. That a state, when sued by the United States, still retains its status as a state, in order to determine the extent of its liability, whether in tort or on contract, is made clear by United States v. North Carolina, 1890, 136 U.S. 211, 10 S. Ct. 920, 34 L. Ed. 336. In this case, though suable, the liability of North Carolina was determined to be that applicable under the substantive law to a state. This principle obviously applies, adopting the Government's own analogy, to a municipal corporation. See accord 81 C.J.S., States, § 215, pp. 1307, 1308. This contention is likewise incorrect.

 Thus, since the United States, under the Federal Tort Claims Act, is liable 'as a private individual under like circumstances', and the private individual, driving the mail truck here, would have his liability determined by New Jersey law, with its presently applicable doctrine of negligence and contributory negligence, and since New Jersey law, whatever it may be, must apply to both parties, not simply to one, it is the principles of New Jersey law as to the tort liability of municipal corporations, which apply here to the determination of the liability of the City of Newark for the negligent acts of its ambulance driver.

 Accordingly, we turn to the second major contention of the United States, to wit, that under New Jersey municipal tort law, the City is implicated here by the negligence of its ambulance driver. The cases above cited of Cloyes, Hartman, and Casale, with the many decisions, both old and new, there carefully commented upon, indicate that there is probably no area of New Jersey law which is presently being subjected to closer critique and more expanding liability than that concerning the tort responsibility of municipal corporations. Not only the existence of the three separate opinions in Casale, but the two decisions of the New Jersey Supreme Court, the one in Cloyes, the other in Hartman, the latter expressly adopting the opinion therein of the Appellate Division of the Superior Court, each contain expressions of dissatisfaction with the present highly restrictive tort liability of municipal corporations under New Jersey law. Note the allusion in Casale to present 'injustice', 125 A.2d at page 900. Note in Cloyes the allusion to the fact that 'new considerations (had) impelled the courts to peck away at the concept of immunity.' 129 A.2d at page 3. Note this Court's further statement in that opinion that 'We do not believe this is the case in which to consider whether to come to grips with the entire problem. We are satisfied that movement toward Strader (a very early case) is in the wrong direction. Hence we confine the inquiry to the question whether the operation here conducted is proprietary within the holding of more recent authorities, without regard to whether the result will jell with expressions which antedate them.' 129 A.2d at page 5. And note further in that opinion, after vainly attempting a reconciliation of the earlier authorities, the statement 'if such reconciliation does not satisfy a taste for symmetry in the law, we repeat that we are here content to hold whatever ground has been gained.' 129 A.2d at page 7. Further note the allusion in the Supreme Court's opinion in Hartman, where that Court, after alluding to the Appellate Division opinion, says (23 N.J. 530, 129 A.2d 877) 'We affirm thereon', and thereafter alludes 'to the expanding tort liability of municipal corporations', citing Cloyes.

 Of course this tendency to expand the tort liability of municipal corporations in State law does not justify this Court in hazarding a guess as to how far that tendency will extend in the future. It is the duty of a Federal Court simply to determine what the State law is, and not to attempt to make further changes in that law, even along the line of an apparent tendency. But that does not mean that a State decision must be expressly overruled before this Court can consider it to have been discarded as a correct expression of State law. Where later State cases show that the State courts have themselves disregarded it, without expressly overruling it, it no longer expresses State law, and is therefore to be disregarded by the Federal Courts, when, as here, they are restricted to applying State law. Mason v. American Emery Wheel Works, 1 Cir., 1957, 241 F.2d 906. Her Cloyes, Hartman, and Casale clearly show in their allusions 'to the expanding tort liability of municipal corporations' in New Jersey that many of the older cases in that regard must be disregarded and discarded, as not correctly expressing the law of the State of New Jersey.

 We turn to the consideration of the present principles of New Jersey municipal corporation tort ...

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