Newport Air Park, Inc. v. United States

complains also Plaintiff this evidence was to allow

court’s refusal PARK, INC., Plaintiff, NEWPORT AIR prevent encompassing all so Appellee, later in Dr. treatise use of the medical clearly testimony it when Cook’s America, UNITED STATES of proper. At the time trial have been Defendant, Appellant. said, judge merely “I am not concerned No. 7317. say. Ask the textbooks about get opinion.” question man a Appeals United States Court certainly not a refusal This is blanket First Circuit. in evidence. The materials allow textbook Dec. judge his under- further indicated trial standing medi- the rules on the use of by the fact that he did allow cal treatises testimony point in his at a later Dr. Cook opinion ar- an on an

to volunteer based journal ticle in a medical him,

proper find no to do so. We to allow failing use of a

error allow the

medical text cross-examination proper

Dr. Cook as foundation use.

been laid

Finally, of this evidence admission dispositive of no rele-

would have been issue with which

vant issue. Levitt concerned is whether Dr. negligent failing report a sud- den in Brown’s condition

examining Hospital. doctor at VA plaintiff’s report of

We stated that have cough

an and short- increase Brown’s reasonably have been

ness of could breath considered Dr. Levitt previous bron- consistent with Brown’s necessarily indic- chial condition ailment; acute heart ative probative

have, this information could have supplied directly plain- Cook Dr. Thus,

tiff. Dr. Levitt was examining relying upon doctor’s determine examination symptoms dis- indicated Brown’s stage coronary ease in an acute Dr.

occlusion had occurred. Whether previ- may

Cook confused Brown’s continuing ous condition and bronchial

cough dyspnea sort irrelevant a heart indicates attack negligence.- question Dr. Levitt’s Court’s no error in the District

We find

findings law. or conclusions of of fact

Judgment affirmed. Rosenthal, Atty., Dept.

Alan S. Justice, with whom D. William Ruckels haus, Atty. Gen., Asst. Edward P. Gal logly, Atty., Joseph, U. and S. Daniel Justice, Atty., Dept. brief, were appellant. for Swiss, Washington, C., E. D. Marsha with whom Bruce G. and Am Sundlun Washington, ram, Sundlun, Hahn & D. C., brief, appellee. for ALDRICH, Judge, Before Mc Chief Judges. COFFIN, ENTEE and Circuit Judge. ALDRICH, Chief appellant Due appellee Newport Air United States Park, Inc., airplanes two collided at the airport. Ap Warwick, Rhode Island ensuing claims, pellee injury settled the pursuant appellant, to a local statute requiring contribution,1 ap reimbursed pellee the extent of of its outlay. This it did because waiver Claims contained Federal Tort Act, FTCA, extends claims tribution when the joint tortfeasor. United v. Yel States Co., low Cab 399, 71 S.Ct. 95 L.Ed. 523.2 The exception, made which has resulted per present lawsuit. One gov sons killed collision government’s ernment obligation employees to its under the Employees’ Compensation Act, seq., et statute FECA, U.S.C. § antedating FTCA, and similar in content to state workmen’s 16(c) pro acts.3 FECA Section early adopted broadly Island version Rhode waiver construed Among contribution,' Joint Contribution Uniform the Court question 10-6-1 Act. Tortfeasors R.I.Gen.Laws did itself not address seq. et a claim for contribution is, strictly, tortfeasor a tort claim. title, word 2. While the “tort” Nor did it otherwise touch on the issues im- act waives itself * * * * * in the case at bar. munity to “claims exclusivity provision or death caused 3. The wrongful presently act or omission concerned was added * * necessary by employee of the Government until made the Federal Tort 1346(b). S.Rep. In Claims Act. 81st U.S.O. No. obligation.4 recovery. this its sole such bar vides discharged S.S. Co. v. paying $8,600. Thereafter the widow L.Ed. appellee, private shipowner, and recovered sued 2d 1. whose widow There way $50,000 by government vessel, re As settlement. collided vessel with a FECA,5 brought quired by admiralty. section 32 suit A cross libel blame, repaid Finding to the then the was filed. to the widow both gov- government. Appellee damages. demanded divided the government ernment, 16(c) asserting to the ex tribution the section that 16(c), Citing $8,600.6 liability, section to tent of a bar its further was ob- having parties government jected including refused. The to the court’s in the facts, gross damages Weyer- stipulated the court to above that the amount granted judgment appellee, required govern- pay for the a haeuser was ap government F.Supp. employee injured and the the collision. ment in peals. rejected contention, say- The Court this ing, p. 601, p. at at Basically appellee’s position that it is in contained section limitation 7(b), added “The of [to § recovery restricting purpose of has in establish FECA] employee representatives, and his that, on as between the Government rights unrelated of not directed at and is employees hand the one and and that parties. is not The issue third representatives dependents on their or be, inquiry simple. must other, remedy seeking to enforce. exclusive. is no There evidence Congress that was concerned whatever claim It that is clear rights unrelated of third with strictly inde- reimbursement any purpose parties, much of less appellee, sec- pendent right, in- for that from the United States tion Sess., quoted by Cong., in Court 1st money jury or other or death receives Weyerhaeuser S.S. Co. v. United liability property in of that satisfaction infra, 601, n. at 929. at by him or a result of suit or settlement or an States United 4. “The behalf, beneficiary, in after deduct- his instrumentality sub- thereof under ing a rea- of suit and therefrom costs any chapter re- with or extension thereof attorney’s fee, refund to the shall sonable injury spect em- of an to the or death compensa- United States the amount ployee other instead of all is exclusive and paid States and credit United the in- States or United surplus payments any com- future legal strumentality employee, to the payable pensation >to him for the same representative, spouse, dependents, next of injury. The amount refunded person kin, and other otherwise to the States shall be credited United damages recover from the entitled to Compensation Employees’ If Fund. com- instrumentality be- or United States pensation bene- prop- has not been to the injury in a direct or death cause ficiary, money he shall or credit the judicial proceeding, action, or in a civil erty compensation payable him admiralty, or or administrative injury. the United States for the same judicial proceeding a workmen’s under However, beneficiary re- entitled to statute or under a at least one-fifth of net amount tain However, statute. this sub- money remaining property or other apply does not master or a section to a expenses settlement after the of a suit or member of a of a vessel.” 5 U.S.C. crew deducted, plus an amount 8116(c). § attorney’s equivalent to a fee reasonable proportionate to the “Adjustment refund after from a 5. States.” 5 U.S.C. person. for which If an or death payable compensation is sub- under this sought Actually, complaint filed chapter caused circumstances $50,000. However, appellee did the entire creating legal liability person other in a $8,- appeal from not 600, the court’s award damages, pay than the United States to and that this is the informs us figure. beneficiary compensa- proper entitled soning, F.Supp. 815, seemingly doctrines disturb settled rights affecting pay the mutual law should private shipowners $50,000, col- liabilities con- “limitless, probably compel lision cases.” tribution would com- plete reconsideration the actuarial Appellee all the comfort cannot take compensation insurance,” basis of while wish. supported by a dictum Elston v. In- to include the result While Co., Inc., 1966, dustrial Lift Truck divided Pa. 216 A.2d accord had Pennsylvania there summa- employee, Weyerhaeuser rized, impermissible legis- ad hoc of action direct lation.7 Either owes of the collision with because or, conceivably, $25,000, held that its vessel. nothing. owes the in- did not bar of the FECA Weyerhaeuser’s Although appellee of clusion mistakes the effect part employee government of Weyerhaeuser, of places damages. consequential result- upon The Pope its too much reliance & damages not contri- Hawn, 1953, ant division of Inc. 406, 346 U.S. bution, in accordance with but was 98 L.Ed. 143. There the com- negligence of reduced bined and a stevedore contributory negligence. shipowner resulted in an em- ployee Long- stevedore. In the supported The decision below not shoremen’s and Harbor Workers’ Com- Weyerhaeuser, there- and is inconsistent pensation exclusivity there are Act. awarded The court with. provisions recoupment comparable to the required it of what pertinent section of the FECA. The employee, sub- sum paid compensation stevedore compensation greater stantially than the Longshoremen’s Cir., Act to the work- payment under the FECA. er, shipowner. who then sued prin- The F.2d 179. If accountability latter appellee demanded that bar, ciple for to the worker be reduced $8,600. not recover should payment, amount the stevedore's below, nor cases the court Neither stevedore, and that because of its relied, upon nor even which negligence, recoup forbidden (see 6, swpra) contention. n. makes that being employee effect —in consistency, subject on the While sought Otherwise, argued, here. award court’s that add profiting stevedore would be from its the basic $8,600 is inconsistent with refused, own of care. The lack is shar- concept contribution, statutory that scheme payment ing, in full. On workmen’s would vio- theory, that lated such a result.8 negli- by joint occasioned obligation gence, seem that fails to note the ab- it would Pope them. In- Talbot of sence & be divided statute should ship providing made to stead, has been contribution. sought rights merely had if the pay as much as owner create solely making pay- court’s rea- its own. fact it was any recovery such limited out from a 7. The statement ments causing injuries person negligently such interfere does * * accept. protect employers [are] It interferes who we cannot scheme liability, but, subjected liability by to absolute than unlimited less would necessity, pro tanto. U.S. at S.Ct. at it interferes Act.” supra. permit “specific provisions an recoup compensation pay- employer his upon ment which benefited steve- equitable it is a based fair argument. a circular If dore. This was ness. The to have the other tort shipowner prevailed, in had whole or outlay feasor contribute to arises in would, effect, part, the stevedore whichever tortfeasor loss. satisfies the indemnifying shipowner inequitable It that as between two negligence, contrary for Halcyon jointly its own liable ultimate loss Ship Ceiling fortuitously Lines v. Haenn should be determined Refitting Corp., 1952, party’s choice of defendant. Gregory, circum- Among 96 L.Ed. 318. The Contribution Joint shipowner’s payment Defense, stances that ultimately Tortfeasors: A Harv.L.Rev. (1941); the stevedore was Leflar, benefited Contribution and payment Indemnity res inter alios. Tortfeasors, The latter’s Between 81 U.Pa. nothing employee (1932); to its to do with Note, L.Rev. Toward a negligence, indem- but was contractual Workable Rule of Contribution in the nity. Courts, 123, 125 65 Colum.L.Rev. (1965). n. 19 injured party’s insurance An liability of does not redound to lessen the legal principle As a matter injury. the third who caused the the route to contribution must be via Talbot Had the stevedore been subrogation assignment upon based ordinary insurer that had contracted payment.10 In such circumstances we shipowner employee, with the suppose would nothing there would be from, no or credit received benefit subrogated to if the other of, compensation payment. on account party tortfeasor, joint claimed to be a Bangor Cir., Jones, & A. R. Co. 1 v. injured was never under 886; 1929, 36 F.2d Parmiter v. United party. readily Nor do we see unfair D.Mass., 823; States, F.Supp. 75 ness,' so far as the non-liable Note, Damages: Unreason the Law concerned, he, by hypothesis, re Rule, Harv.L. Collateral Source ceives no benefit from the satisfaction (1964); Rev. 741 Rest. Torts Com § liability. courts, the other actor’s Some Correspondingly, ment e. the fact that nevertheless, un have found unfairness agreed employee here had the government party contributes, less the immune with to make a refund certain out, however, explaining the un where shipown circumstances was none of the See, g., fairness lies. e. v. Mil Zarrella er’s concern.9 ler, 1966, 100 R.I. 217 A.2d 673. must, accordingly, determine We respect, compelling all due With right of contribution be contribution here could said to be a be joint tween for a dif tortfeasors calls But if such windfall. decisions are sound ferent not. reach result. think We We they cannot affect the case at bar. In by application this result not of rubric— party required Zarrella the to contribute tort whether the negligence, along was a husband whose stating ques or feasor not—because party seeking with the tion point, such manner tends assume contribution, Un wife. considering the nature der state immune law husband was of the Contribu contribution. held, from suit the wife. liability in tion does not create direct nonetheless, liable to tort, other, he was between two each towards the implies, Rather, tortfeasors. word tribute. ex- Even Rhode Island would Indeed, thinking assignment by opera- of the 10. Because this is an wearing hats, capacity forbidding law, in its as in- two U.S.C. assignment against gov- it is reasonable rather than unrea- surer of claims provide way. sonable to it recovers from a ernment does not Penn stand party. Cir., 1969, Tanker v. Co. United 409 F.2d 514. ported by work- principle to override relevant cases than the tend statute,11 opinion would court’s reflects. men’s being immunity not state-created, bound. be There are two elements in'the Federal through state, its Employees’ Compensation Act which to- ex- courts, may its properly determine gether support denial of contribution to im- FECA the tent. In appellee: immunity from suit created; federally munity extent injured party govern- conferred on the courts, federal must determined be 8116(c); pro- ment and the is one particularly the issue when establishing protecting visions liability. Employees’ Compensation Fund as a obligations payment source for Looking question as stemming from the ab- law, that contri we hold one of federal solute for benefits. govern had from cannot be bution of the first element ment when party. springs justification the basic no tort obliged succinctly person contribution. As Prosser states Even it, secondarily liable, en and lienee indemnity, held has been full titled to “There is lack sense and obvious primary arises justice permits in a rule which employer, he was statu if, as the actor torily loss, entire two burden for which liability. immune equally, defendants were unintention- Cir., Wiener, Lines, Air ally responsible, onto shouldered 379; Turco Bertone v. 335 F.2d alone, according one to the accident of 726; Cir., 1958, Products, F.2d Inc., execution, levy ex- successful Cir., Inc., Bros., Slattery Marra liability insurance, istence of These F.2d plaintiff’s spite, his col- whim or thought cases, duty as a fortiori wrongdoer, lusion with the other primarily liable arise goes while the scot free.” latter only secondarily liable. directly to Prosser, (Hornbook Series, Torts 3d Inc., Bros., Slattery Marra v. But ef. p. 1964), ed. 275. out, in pointed supra, court where In the case where one of the tortfeasors only legal rela denying recovery, that the by immune is from suit tortfeasors, joint tionship case—-the rationale behind —our not injured party. needWe each to exists, longer no contribution for there con go hold that as courts to as far those possibility arbitrary, is no fortui- present in case. is barred tribution tous, or collusive choice of defendants is judgment the District Court which underlies contribution. That the Judgment defendant. for the vacated. government may go may “scot free” be unfair, somewhat but unfairness Judge COFFIN, (concurring). Circuit stems from not the law of contribution conclusion I in court’s but from the fact that the concur given immunity ra- its ultimate section share what separate exchange speci- purpose in of this for strict tionale. rationale, injuries fied for all is to underscore benefits cov- statement sup- strongly my employees. which, view, in ered more Compare Burnings Co., La.App., 1965, v. has drawn. Constr. A distinction Farm Bureau Cas. 172 So.2d 721. If abstract fairness is the Smith v. Southern compensation 695, test, Co., 1965, So.2d 247 La. 174 in workmen’s cases Ins. Mfg. employer, overall, v. at least does & Towne Co. incur with Yale liability, Ray Co., Cir., 1965, contractual which is to be off- McDermott J. 1968, by immunity 371; Braswell, McLaughlin in set the individual case. v. F.2d Pope Hawn, supra. 535; Inc. v. Sanderson 208 So.2d La. Cf. ployer recouping Weyerhaeuser from Co. v. benefits S. S. States, would frustrate of the stat appellee Surely (1963), helps not at oc ute. that same frustration L.Ed.2d 1 recoup observed, appellee curs defeat at here if can all. no con is no what ment. That there was evidence at 929 that “[t]here weigh Congress concerned with tribution in heavily Talbot not did ever that pf parties” rights not on Court’s mind and does unrelated 8116(c). seem to at all from au passing This observa me detract because, thority bearing our situa here no tion has immunity above, tion. I concede that it not from contribution noted legisla immunity clusive if compelling of more not were a tort arises from Compare underlying Wallenius nature. intent because tive longer Bremen 409 F. justification no G.m.b.H. United for contribution (4th 1969) Air 2d 994 Cir. with United exists one tortfeasor ^immune Lines, (9th injured party.' Wiener, 335 F.2d 379 Even suit 1964), denied, 951, 85 Cir. a cause cert. to have had direct (1964). government, 13 L.Ed.2d 549 of action in tort rely could presence of this fund payments for its recover government adequate and scheme is also an basis for distinguishing Miller, Zarrella v. 100 R.I. sequence was, opinion and as the whole gives (1966), A.2d grant indi of certiorari court so much The Rhode Is- concern. unique strictly product a ad cate, willing subject court hus- land a payments to miralty in which doctrine band, could not be sued who defining damages are included victims wife, for contribution found The Court there to be shared.* applied contri- tortfeasor. It thus age-old disrupt doctrine intent justifica- bution the traditional where eases; I of divided possibility captious tion—the choice the traditional find no intent to alter lacking; but, defendant —was immunity yields contribution that immunity. out, points with the marital there 277; Prosser, supra relationship the case removed from 1003; 26 A.L.R.3d 19 A.L.R.2d party plaintiff, was no recognizing interspousal is the reason for immunity. in this case The second element This, reasoning linkage does scheme based apply from em- fund which to allow contribution absolute recoupment ployer subject compensa- protected part to a workmen’s injured by system. party plaintiff provision employees are A others, from to liable tortfeasor Its victim section 8132. legis- case, me, settled not remove the that the our would fact purpose Hawn, if be frustrated Inc. v. lative would recoupment 406, 411-412, 98 L.Ed. could defeat Hawn, held, provision. Pope Talbot, (1953), as to preventing supra. scheme, em- similar pay it been the had to For I see no useful it would have this reason logic speculating would mean tortfeasor. That lone what injured party in this ease had a direct would have been e., gets $29,300 i. instead of the It would have recov- cause of action. (half Newport $25,000 inclusion ered without —but paid) have amount $4,- (half Moreover, it would reference the court’s paid). imply that in contribution 300 seems to obligated each half of what

Case Details

Case Name: Newport Air Park, Inc. v. United States

Court Name: Court of Appeals for the First Circuit

Date Published: Dec 4, 1969

Citation: 419 F.2d 342

Docket Number: 7317_1

Court Abbreviation: 1st Cir.