Gilman

The question presented by this appeal is whether the United States, after suffering judgment against it under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 (b), for injuries arising from the negligent operation of a government automobile, may recover, by way of indemnity, the amount of such judgment from its employee, the driver who was guilty of the negligence which caused the injuries.

Appellee Darnell brought the original action against the United States to recover damages for injuries arising when his automobile collided with a government car driven by the appellant who was an employee of the United States Coast and Geodetic Survey. The court granted the Government’s motion under Rule 14(a) of the Rules of Civil Procedure, 28 U.S.C.A., for leave to implead the appellant as a third party defendant, and thereupon a third party complaint was filed asking that if the United States should be held liable it should have indemnity against appellant for the full amount of its liability. Appellant’s motion to dismiss the third party complaint was denied and upon trial the district court found that the plaintiff’s injuries were caused solely by the negligence of the appellant acting…

(dissenting).

T am of the opinion that Rule 14, Federal Rules of Civil Procedure should apply in tort claims actions. The Federal Tort Claims Act waives the government’s immunity from suit but nowhere does the government waive its right to sue.

The majority opinion concedes that under the common law and under the law of California, a private employer may recover from his negligent employee for losses sustained by the employer by reason of the negligent acts of the employee. Bradley v. Rosenthal, 154 Cal. 420 , 97 P. 875 ; see also Spruce v. Wellman, 98 Cal.App.2d 158 , 219 P.2d 472 .

If under United States v. Yellow Cab Co., 340 U.S. 543 , 71 S.Ct. 399 , 95 L.Ed. 523 , the government is liable for contribution under the law of the State of Pennsylvania, the same reasoning should apply in *850 this case. Tort Claims Act liability is in all events secondary. The only difference as to the government’s liability between the case at bar and the Yellow Cab case, supra, is that in the Yellow Cab case the government was a joint tort-feasor and as a result paid only its portion of the liability but in this case it must -pay all and cannot, according to the majority seek recoupment from…

206 F.2d 846 GILMAN, v. UNITED STATES et al. No. 13305. United States Court of Appeals Ninth Circuit. Aug. 3, 1953. Parker, Stanbury, Reese & McGee, Wm. C. Wetherbee, Los Angeles, Cal., for appellant. Warren E. Burger, Asst. Atty. Gen., Walter S. Binns, U.S. Atty., Clyde C. Downing, Reuben Rosensweig, Asst. U.S. Attys., Los Angeles, Cal., Samuel D. Slade, T. S. L. Perlman, Attys., Department of Justice, Washington, D.C., for appellee. Before POPE, Circuit Judge and McCORMICK and HARRISON, District judges. POPE, Circuit Judge. 1 The question presented by this appeal is whether the United States, after suffering judgment against it under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 (b), for injuries arising from the negligent operation of a government automobile, may recover, by way of indemnity, the amount of such judgment from its employee, the driver who was guilty of the negligence which caused the injuries. 2 Appellee Darnell brought the original action against the United States to recover damages for injuries arising when his automobile collided with a government car driven by the appellant who was an employee of the United States Coast and Geodetic Survey. The…