A soldier in the Army of the United States was injured by a
motor truck, through negligence of the driver. The expenses of his
hospitalization were borne by the United States, and he continued
to receive his Army pay during the period of his disability. The
United States brought suit in a federal district court against the
owner and driver of the truck as tortfeasors to recover the amounts
expended for hospitalization and soldier's pay during the period of
disability, as for loss of the soldier's services.
Held:
1. The decision is governed not by the law of the state where
the injury occurred, but by federal law, even though Congress has
not acted affirmatively concerning the specific question.
Erie
R. Co. v. Tompkins, 304 U. S. 64,
distinguished. Pp.
332 U. S.
305-311.
2. In the absence of legislation by Congress on the subject, the
United States was not entitled to recover on the claim. Pp.
332 U. S.
311-317.
3. It is for Congress, not the judiciary, to make new laws
concerning the right of the Government to recover for the loss of a
soldier's services. Pp.
332 U. S.
314-317.
153 F.2d 958 affirmed.
The United States brought suit in the District Court to recover
on a claim arising out of injuries sustained by a soldier as a
result of negligence of the defendants. The District Court gave
judgment for the United States.
60 F. Supp.
807. The Circuit Court of Appeals reversed. 153 F.2d 958. This
Court granted certiorari. 329 U.S. 696.
Affirmed, p.
332 U. S.
317.
Page 332 U. S. 302
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
Not often since the decision in
Erie R. Co. v.
Tompkins, 304 U. S. 64, is
this Court asked to create a new substantive legal liability
without legislative aid and as at the common law. This case of
first impression here seeks such a result. It arises from the
following circumstances.
Early one morning in February, 1944, John Etzel, a soldier, was
hit and injured by a truck of the Standard Oil Company of
California at a street intersection in Los Angeles. The vehicle was
driven by Boone, an employee of the company. At the Government's
expense of $123.45, Etzel was hospitalized, and his soldier's pay
of $69.31 was continued during his disability. Upon the payment of
$300, Etzel released the company and Boone "from any and all claims
which I now have or may hereafter have on account of or arising out
of" the accident. [
Footnote
1]
From these facts, the novel question springs whether the
Government is entitled to recover from the respondents as
tortfeasors the amounts expended for hospitalization and soldier's
pay, as for loss of Etzel's services. A jury being waived, the
District Court made findings of fact and conclusions of law in the
Government's favor upon all the issues, including those of
negligence and contributory negligence. Judgment was rendered
accordingly.
60 F. Supp.
807. This the Circuit Court of Appeals reversed, 153 F.2d 958,
and we granted certiorari because of the novelty and importance of
the principal question. [
Footnote
2] 329 U.S. 696.
Page 332 U. S. 303
As the case reaches us, a number of issues contested in the
District Court and the Circuit Court of Appeals have been
eliminated. [
Footnote 3]
Remaining is the basic question of respondents' liability for
interference with the government-soldier relation and consequent
loss to the United States, together with questions whether this
issue is to be determined by federal or state law [
Footnote 4] and concerning the
Page 332 U. S. 304
effect of the release. [
Footnote
5] In the view we take of the case, it is not necessary to
consider the questions relating to the release, [
Footnote 6] for we have reached the
conclusion that respondents are not liable for the injuries
inflicted upon the Government.
Page 332 U. S. 305
We agree with the Government's view that the creation or
negation of such a liability is not a matter to be determined by
state law. The case in this aspect is governed by the rule of
Clearfield Trust Co. v. United States, 318 U.
S. 363, and
National Metropolitan Bank v. United
States, 323 U. S. 454,
rather than that of
Erie R. Co. v. Tompkins, supra. In the
Clearfield case, involving liabilities arising out of a
forged indorsement of a check issued by the United States, the
Court said:
"The authority to issue the check had its origin in the
Constitution and the statutes of the United States, and was in no
way dependent on the laws of Pennsylvania or of any other state.
Cf. Board of Commissioners v. United States, 308 U. S.
343;
Royal Indemnity Co. v. United States,
313 U. S.
289. The duties imposed upon the United States and the
rights acquired by it as a result of the issuance find their roots
in the same federal sources.
Cf. Deitrick v. Greaney,
309 U. S.
190;
D'Oench, Duhme & Co. v. Federal Deposit
Ins. Corporation, 315 U. S. 447. In the absence of
an applicable Act of Congress, it is for the federal courts to
fashion the governing rule of law according to their own
standards."
318 U.S. at
318 U. S.
366-367.
Although the
Clearfield case applied these principles
to a situation involving contractual relations of the Government,
they are equally applicable in the facts of this case, where the
relations affected are noncontractual or tortious in character.
Perhaps no relation between the Government and a citizen is more
distinctively federal in character than that between it and members
of its armed forces. To whatever extent state law may apply to
govern the relations between soldiers or others in the armed forces
and persons outside them or nonfederal governmental agencies, the
scope, nature, legal incidents and consequences of the relation
between persons in service and the Government
Page 332 U. S. 306
are fundamentally derived from federal sources and governed by
federal authority.
See Tarble's Case,
13 Wall. 397;
Kurtz v. Moffitt, 115 U.
S. 487. So also, we think are interferences with that
relationship such as the facts of this case involve. For, as the
Federal Government has the exclusive power to establish and define
the relationship by virtue of its military and other powers,
[
Footnote 7] equally clearly it
has power in execution of the same functions to protect the
relation once formed from harms inflicted by others. [
Footnote 8]
Since also the Government's purse is affected, as well as its
power to protect the relationship, its fiscal powers, to the extent
that they are available to protect it against financial injury, add
their weight to the military basis for excluding state intrusion.
Indeed, in this aspect, the case is not greatly different from the
Clearfield case, or from one involving the Government's
paramount power of control over its own property both to prevent
its unauthorized use or destruction and to secure indemnity for
those injuries. [
Footnote
9]
Page 332 U. S. 307
As in the
Clearfield case, moreover, quite apart from
any positive action by Congress, the matter in issue is neither
primarily one of state interest nor exclusively for determination
by state law within the spirit and purpose of the
Erie
decision. The great object of the
Erie case was to secure
in the federal courts, in diversity cases, the application of the
same substantive law as would control if the suit were brought in
the courts of the state where the federal court sits. It was the
so-called "federal common law" utilized as a substitute for state
power, to create and enforce legal relationships in the area set
apart in our scheme for state, rather than for federal control,
that the
Erie decision threw out. Its object and effect
were thus to bring federal judicial power under subjection to state
authority in matters essentially of local interest and state
control.
Conversely, there was no purpose or effect for broadening state
power over matters essentially of federal character, or for
determining whether issues are of that nature. The diversity
jurisdiction had not created special problems of that sort.
Accordingly, the
Erie decision, which related only to the
law to be applied in exercise of that jurisdiction, had no effect,
and was intended to have none, to bring within the governance of
state law matters exclusively federal because made so by
constitutional or valid congressional command, or others so vitally
affecting interests, powers, and relations of the Federal
Government as to require uniform national disposition, rather than
diversified state rulings.
Cf. Clearfield Trust Co. v. United
States, at
318 U. S.
366-368. Hence, although federal judicial power to deal
with common law problems was cut down in the realm of liability or
its absence governable by state law, that power remained unimpaired
for dealing independently, wherever necessary or appropriate, with
essentially federal matters, even though Congress has not acted
affirmatively about the specific question.
Page 332 U. S. 308
In this sense, therefore, there remains what may be termed, for
want of a better label, an area of "federal common law," or,
perhaps more accurately, "law of independent federal judicial
decision," outside the constitutional realm untouched by the
Erie decision. As the Government points out, this has been
demonstrated broadly not only by the
Clearfield and
National Metropolitan Bank cases, but also by other
decisions rendered here since the
Erie case went down,
[
Footnote 10] whether or not
the Government is also correct in saying the fact was foreshadowed
the same day by
Hinderlider v. La Plata River & Cherry
Creek Ditch Co., 304 U. S. 92,
304 U. S. 110,
in a unanimous opinion delivered likewise by Mr. Justice Brandeis.
[
Footnote 11]
It is true, of course, that, in many situations, and apart from
any supposed influence of the
Erie decision, rights,
interests and legal relations of the United States are determined
by application of state law, where Congress has not acted
specifically. "In our choice of the applicable federal rule, we
have occasionally selected state law."
Clearfield Trust Co. v.
United States, at
318 U. S. 367.
The Government, for instance, may place itself in a position where
its rights necessarily are determinable by state law, as when it
purchases real estate from one whose title
Page 332 U. S. 309
is invalid by that law in relation to another's claim.
Cf.
United States v. Fox, 94 U. S. 315.
[
Footnote 12] In other
situations, it may fairly be taken that Congress has consented to
application of state law, when acting partially in relation to
federal interests and functions, through failure to make other
provision concerning matters ordinarily so governed. [
Footnote 13] And, in still others,
state law may furnish convenient solutions in no way inconsistent
with adequate protection of the federal interest.
But we do not undertake to delimit or categorize the instances
where it is properly to be applied outside the
Erie aegis.
It is enough for present purposes to point out that they exist,
cover a variety of situations, and generally involve matters in
which application of local law not only affords a convenient and
fair mode of disposition, but also is either inescapable, as in the
illustration given above, or does not result in substantially
diversified treatment where uniformity is indicated as more
appropriate, in view of the nature of the subject matter and the
specific issues affecting the Government's interest.
Whether or not, therefore, state law is to control in such a
case as this is not at all a matter to be decided by application of
the
Erie rule. For, except where the Government has simply
substituted itself for others as successor to rights governed by
state law, the question is one of federal policy, affecting not
merely the federal judicial establishment and the groundings of its
action, but also the Government's legal interests and relations, a
factor not controlling in the types of cases producing and
governed
Page 332 U. S. 310
by the
Erie ruling. And the answer to be given
necessarily is dependent upon a variety of considerations always
relevant to the nature of the specific governmental interests and
to the effects upon them of applying state law. These include not
only considerations of federal supremacy in the performance of
federal functions, but of the need for uniformity, and, in some
instances, inferences properly to be drawn from the fact that
Congress, though cognizant of the particular problem, has taken no
action to change long settled ways of handling it.
Leaving out of account, therefore, any supposed effect of the
Erie decision, we nevertheless are of opinion that state
law should not be selected as the federal rule for governing the
matter in issue. Not only is the government-soldier relation
distinctively and exclusively a creation of federal law, but we
know of no good reason why the Government's right to be indemnified
in these circumstances, or the lack of such a right, should vary in
accordance with the different rulings of the several states, simply
because the soldier marches, or today perhaps as often flies,
across state lines.
Furthermore, the liability sought is not essential or even
relevant to protection of the state's citizens against tortious
harms, nor indeed for the soldier's personal indemnity or security,
except in the remotest sense, [
Footnote 14] since his personal rights against the
wrongdoer may be fully protected without reference to any indemnity
for the Government's loss. [
Footnote 15] It is, rather, a liability the principal, if
not the only, effect of which would be to make whole the
federal
Page 332 U. S. 311
treasury for financial losses sustained, flowing from the
injuries inflicted and the Government's obligations to the soldier.
The question therefore is chiefly one of federal fiscal policy, not
of special or peculiar concern to the states or their citizens.
And, because those matters ordinarily are appropriate for uniform
national treatment, rather than diversified local disposition, as
well where Congress has not acted affirmatively as where it has,
they are more fittingly determinable by independent federal
judicial decision than by reference to varying state policies.
We turn, finally, to consideration of the policy properly to be
applied concerning the wrongdoer, whether of liability or of
continued immunity as in the past. Here, the Government puts
forward interesting views to support its claim of responsibility.
It appeals first to the great principle that the law can never be
wholly static. Growth, it urges, is the life of the law, as it is
of all living things. And, in this expansive and creative living
process, we are further reminded, the judicial institution has had
and must continue to have a large and pliant, if also a restrained
and steady, hand. Moreover, the special problem here has roots in
the ancient soil of tort law, wherein the chief plowman has been
the judge, notwithstanding his furrow may be covered up or widened
by legislation.
Bringing the argument down to special point, counsel has favored
us with scholarly discussion of the origins and foundations of
liabilities considered analogous, and of their later expansion to
include relations not originally comprehended. These embrace
particularly the liabilities created by the common law, arising
from tortious injuries inflicted upon persons standing in various
special legal relationships, and causing harm not only to the
injured person, but also, as for loss of services and
assimilated
Page 332 U. S. 312
injuries, to the person to whom he is bound by the relation's
tie. Such, for obvious examples, are the master's rights of
recovery for loss of the services of his servant or apprentice;
[
Footnote 16] the husband's
similar action for interference with the marital relation,
including loss of consortium as well as the wife's services, and
the parent's right to indemnity for loss of a child's services,
including his action for a daughter's seduction. [
Footnote 17]
Starting with these long established instances illustrating the
creative powers and functions of courts, the argument leads on in
an effort to show that the government-soldier relation is, if not
identical, still strongly analogous; [
Footnote 18] that the analogies are not destroyed by any
of the variations, some highly anomalous, [
Footnote 19] characterizing one or more of the
settled types of liability, and that an
Page 332 U. S. 313
exertion of creative judicial power to bring the
government-soldier relation under the same legal protection against
tortious interferences by strangers would be only a further and a
proper exemplification of the law's capacity to catch up with the
times. Further elaboration of the argument's details would be
interesting, for the law has no more attractive scene of action
than in the broad field compendiously labeled the law of torts, and
within it perhaps none more engrossing than those areas dealing
with these essentially human and highly personal relations.
But we forego the tendered opportunity. For we think the
argument ignores factors of controlling importance distinguishing
the present problem from those with which the Government seeks to
bring it into companionate disposition. These are centered in the
very fact that it is the Government's interests and relations that
are involved, rather than the highly personal relations out of
which the assertedly comparable liabilities arose, and in the
narrower scope, as compared with that allowed courts of general
common law jurisdiction, for the action of federal courts in such
matters.
We would not deny the Government's basic premise of the law's
capacity for growth, or that it must include the creative work of
judges. Soon, all law would become antiquated straitjacket, and
then dead letter, if that power were lacking. And the judicial hand
would stiffen in mortmain if it had no part in the work of
creation. But, in the federal scheme, our part in that work, and
the part of the other federal courts, outside the constitutional
area, is more modest than that of state courts, particularly in the
freedom to create new common law liabilities, as
Erie R. Co. v.
Tompkins itself witnesses.
See
also United States v.
Hudson, 7 Cranch 32.
Page 332 U. S. 314
Moreover, as the Government recognizes for one phase of the
argument but ignores for the other, [
Footnote 20] we have not here simply a question of
creating a new liability in the nature of a tort. [
Footnote 21] For, grounded though the
argument is in analogies drawn from that field, the issue comes
down in final consequence to a question of federal fiscal policy,
coupled with considerations concerning the need for and the
appropriateness of means to be used in executing the policy sought
to be established. The tort law analogy is brought forth, indeed,
not to secure a new step forward in expanding the recognized area
for applying settled principles of that law as such, or for
creating new ones. It is advanced, rather, as the instrument for
determining and establishing the federal fiscal and regulatory
policies which the Government's executive arm thinks should prevail
in a situation not covered by traditionally established
liabilities.
Whatever the merits of the policy, its conversion into law is a
proper subject for congressional action, not for any creative power
of ours. Congress, not this Court or the other federal courts, is
the custodian of the national purse. By the same token, it is the
primary and most often the exclusive arbiter of federal fiscal
affairs. And these comprehend,
Page 332 U. S. 315
as we have said, securing the treasury or the government against
financial losses, however inflicted, including requiring
reimbursement for injuries creating them, as well as filling the
treasury itself.
Moreover, Congress, without doubt, has been conscious throughout
most of its history that the Government constantly sustains losses
through the tortious or even criminal conduct of persons
interfering with federal funds, property, and relationships. We
cannot assume that it has been ignorant that losses long have
arisen from injuries inflicted on soldiers, such as occurred here.
The case, therefore, is not one in which, as the Government argues,
all that is involved is application of
"a well settled concept of legal liability to a new situation,
where that new situation is in every respect similar to the old
situation that originally gave rise to the concept. . . ."
Among others, one trouble with this is that the situation is not
new -- at any rate, not so new that Congress can be presumed not to
have known of it or to have acted in the light of that
knowledge.
When Congress has thought it necessary to take steps to prevent
interference with federal funds, property, or relations, it has
taken positive action to that end. [
Footnote 22] We
Page 332 U. S. 316
think it would have done so here, if that had been its desire.
This it still may do if or when it so wishes.
In view of these considerations, exercise of judicial power to
establish the new liability not only would be intruding within a
field properly within Congress' control and as to a matter
concerning which it has seen fit to take no action. To accept the
challenge, making the liability effective in this case, also would
involve a possible element of surprise, in view of the settled
contrary practice, which action by Congress would avoid, [
Footnote 23] not only here but in
the many other cases we are told may be governed by the
decision.
Finally, if the common law precedents relied on were more
pertinent than they are to the total problem, particularly in view
of its federal, and especially its fiscal, aspects, in none of the
situations to which they apply was the question of liability or no
liability within the power of one of the parties to the litigation
to determine. In them, the courts stood as arbiters between
citizens neither of whom could determine the outcome or the policy
properly to be followed. Here, the United States is the party
plaintiff to the suit. And the United States has power at any time
to create the liability. The only question is which organ of the
Government is to make the determination that liability exists. That
decision, for the reasons
Page 332 U. S. 317
we have stated, is in this instance for the Congress, not for
the courts. Until it acts to establish the liability, this Court
and others should withhold creative touch.
The judgment is
Affirmed.
MR. JUSTICE FRANKFURTER concurs in the result.
[
Footnote 1]
The instrument of release recited that the payment "is not, and
is not to be construed as," an admission of liability.
[
Footnote 2]
The Government's petition for certiorari asserted that
"upwards of 450 instances of negligently inflicted injuries upon
soldiers of the United States, requiring hospitalization at
Government expense, and the payment of compensation during
incapacitation, have been reported by the War Department to the
Department of Justice in the past three years,"
and that additional instances were being reported to the War
Department at the rate of approximately 40 a month.
The suit also was said to be representative of a number already
commenced,
e.g., United States v. Atlantic Coast Line R.
Co., 64 F. Supp.
289, dismissed on the ground that no master-servant
relationship existed, and
United States v. Klein, 153 F.2d
55, an action to recover hospital and medical expenses incurred as
a result of an injury to a Civilian Conservation Corps employee,
dismissed for the reason that the United States Employees'
Compensation Act, 5 U.S.C. § 751
et seq. was held to
afford the Government a method of recoupment, concededly not
available here.
[
Footnote 3]
Including the issues of negligence and contributory negligence,
as to which a stipulation of record on the appeal to the Circuit
Court of Appeals states that evidence other than that set forth in
the stipulation is omitted
"for the reason that appellants are not making any point on
appeal as to the insufficiency of the evidence either to prove
negligence or the absence of contributory negligence."
Although the District Court refused to find that Etzel, as a
soldier, was, "as such, a servant of the plaintiff," respondents
designated as the points on appeal on which they intended to rely:
that the United States had no cause of action or right to recover
for the compensation paid Etzel or for the medical and hospital
expenditures; that he "was not an employee of the plaintiff nor was
plaintiff his master, nor did the relation of employer or employee
exist between them;" and that his release was effective to end "all
right to recover for lost wages or medical or hospital
expenses."
[
Footnote 4]
The Circuit Court of Appeals, considering that, at the outset,
it was "confronted with the problem of what law should apply,"
said:
"Aside from any federal legislation conferring a right of
subrogation or indemnification upon the United States, it would
seem that the state rules of substantive common law would govern an
action brought by the United States in the role of a private
litigant.
Erie R. Co. v. Tompkins, 304 U. S.
64,
304 U. S. 71,
304 U. S.
78;
United States v. Moscow-Idaho Seed Co.,
supra, 92 F.2d 170 at 173, 174."
153 F.2d at 960. The court then indicated agreement with
appellant that California's statutory law -- namely, § 49 of the
Civil Code -- was controlling, and concluded that the Government's
case
"must fail for two reasons: first, because the
government-soldier relation is not within the scope of § 49 of the
Code, and second, because the government is not a 'master,' and the
soldier is not a 'servant,' within the meaning of the Code
section."
153 F.2d at 961.
The court further concluded, however, that Etzel's release
"covered his lost wages and medical expenses as elements of
damage," and therefore was effective to discharge all liability,
including any right of subrogation in the United States "without
statutory authority." Finally the opinion stated:
". . . it seems clear that Congress did not intend that for
tortious injuries to a soldier in time of war, the government
should be subrogated to the soldier's claims for damages."
153 F.2d at 963.
[
Footnote 5]
See note 3 The
Government's claim, of course, is not one for subrogation. It is
rather for an independent liability owing directly to itself as for
deprivation of the soldier's services and "indemnity" for losses
caused in discharging its duty to care for him consequent upon the
injuries inflicted by appellants.
See Robert Mary's Case,
9 Co. at 113 a. It is, in effect, for tortious interference by a
third person with the relation between the Government and the
soldier, and consequent harm to the Government's interest, rights,
and obligations in that relation, not simply to subrogation to the
soldier's rights against the tortfeasors.
[
Footnote 6]
We may assume that the release was not effective to discharge
any liability owing independently to the Government,
cf.
note 5 although fully effective
as against any claim by the soldier. Only if such an independent
liability were found to exist would any issue concerning the
release be reached.
[
Footnote 7]
Including the powers of Congress to "provide for the common
Defense," "raise and support Armies," and "make Rules for the
Government and Regulation of the land and naval Forces,"
U.S.Const., Art. I, § 8, as well as "To declare War" and "To make
all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers. . . ."
Ibid.
[
Footnote 8]
The decision of the Circuit Court of Appeals seems to have been
predicated upon the assumption that Congress could override any
contrary rule of state law, and that the California law governs
only in the absence of Congress' affirmative action.
See
note 4 supra.
[
Footnote 9]
See U.S.Const., Art. IV, § 3, cl. 2:
"The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other
Property belonging to the United States . . . ;"
Camfield v. United States, 167 U.
S. 518,
167 U. S. 524:
" . . . the government has, with respect to its own lands, the
rights of an ordinary proprietor, to maintain its possession and to
prosecute trespassers;"
United States v. Walter,
263 U. S. 15,
263 U. S. 17:
"The United States can protect its property by criminal laws. . .
."
[
Footnote 10]
Board of Commissioners v. United States, 308 U.
S. 343;
Deitrick v. Greaney, 309 U.
S. 190;
Royal Indemnity Co. v. United States,
313 U. S. 289;
D'Oench Duhme & Co. v. Federal Deposit Ins.
Corporation, 315 U. S. 447;
United States v. Allegheny County, 322 U.
S. 174;
Holmberg v. Armbrecht, 327 U.
S. 392.
See also discussion in Notes, Federal
Common Law in Government Action for Tort (1946) 41 Ill.L.Rev. 551;
Exceptions to
Erie v. Tompkins: The Survival of Federal
Common Law (1946) 59 Harv.L.Rev. 966.
[
Footnote 11]
If the ruling followed, that the waters of an interstate stream
must be equitably apportioned among the states through which it
flows in the arid regions of the West, is not properly to be
characterized as merely one of "federal common law," it marks off,
at any rate, another area for federal judicial decision not
dependent on application of state law or, indeed, upon the
existence of federal legislation.
[
Footnote 12]
The problem of the Government's immunity to suit is different,
of course, from that of the nature of the substantive rights it may
acquire, for example, by the purchase of property as against claims
of others for which there may or may not be available a legal
remedy against it.
[
Footnote 13]
See Blair v. Commissioner, 300 U. S.
5;
Reconstruction Finance Corporation v. Beaver
County, 328 U. S. 204.
[
Footnote 14]
That is, if potential added liability ever can be considered as
having effect to deter the commission of negligent torts, the
imposition of liability to indemnify the Government in addition to
indemnifying the soldier conceivably could be thought to furnish
some additional incentive for avoiding such harms.
[
Footnote 15]
See note 5
supra.
[
Footnote 16]
As to the ancient action for loss of services, existent in
Bracton's day,
see Wigmore, Interference With Social
Relations (1887) 21 Amer.L.Rev. 764; VIII Holdsworth, A History of
English Law (2d ed., 1937) 427-430; II
Id. 459-464; IV
Id. 379-387; Pollock, The Law of Torts (13th ed.) 234-239;
Clerk & Lindsell on Torts (8th ed.) 201-212.
[
Footnote 17]
Extension of the action
per quod servitium amisit to
domestic relations, upon a fictional basis, took place as early as
1653.
Norton v. Jason, Style 398;
see Winfield,
Textbook of the Law of Tort (2d ed.) 257.
[
Footnote 18]
Analogies are drawn concerning the nature of the relation both
on the basis of status, underlying the earlier forms of liability,
and on that of its asserted contractual character, in the latter
instance to the rather far-fetched extent of regarding the drafted
soldier as having entered into a "contract implied in law."
[
Footnote 19]
E.g., in the fiction of loss of services involved in
the father's action for a daughter's seduction and in the husband's
action for loss of consortium.
Compare Serjeant Manning's
oft-quoted statement that
"the
quasi fiction of
servitium amisit affords
protection to the rich man whose daughter occasionally makes his
tea, but leaves without redress the poor man whose child is sent
unprotected to earn her bread amongst strangers."
Note to
Grinnell v. Wells, 7 Man. & Gr. at p.
1044.
[
Footnote 20]
That is, in the phase stressing that the question is not to be
determined by applying state law, the emphasis is put upon the
federal aspect of the case, but in that advancing the thesis of
liability for acceptance as the federal rule, stress goes to the
tort grounding of the argument.
[
Footnote 21]
The Government does not contend that the liability sought has
existed heretofore. It frankly urges the creation of a new one. The
only decision determining the matter, which has come to our
attention, in addition to the cases cited above in
note 2 is that of the High Court of Australia
in
Commonwealth v. Quince, 68 C.L.R. 227,
aff'g
(1943) Q.S.R. 199, denying liability.
See also Attorney General
v. Valle-Jones [1935] 2 K.B. 209, reaching a contrary result,
in which, however, the principal issue apparently went by
concession.
[
Footnote 22]
See, e.g., 35 Stat. 1097, 18 U.S.C. § 94 (enticing
desertion from the military or naval service); 35 Stat. 1097, 18
U.S.C. § 95 (enticing workmen from arsenals or armories); 35 Stat.
1097, 18 U.S.C. § 99 (robbery of personal property belonging to the
United States); 35 Stat. 1097, 18 U.S.C. § 100 (embezzlement of
property belonging to the United States).
Of course, it has not been necessary for Congress to pass
statutes imposing civil liability in those situations where it has
been understood since the days of the common law that the sovereign
is protected from tortious interference. Thus, trespass on land
belonging to the United States is a civil wrong to be remedied in
the courts.
Cotton v. United
States, 11 How. 229.
[
Footnote 23]
Necessarily, such an element or effect often, if not always,
exists whenever a new liability is created, as at common law, in
the nature of responsibility for tort. This, however, could not be
made an invariably controlling consideration in cases presenting
common law issues concerning such liabilities to tribunals whose
business it is primarily to decide them, for to do this would
forestall all growth in the law except by legislative action. The
factor, however, is one generally to be taken into account and
weighed against the social need dictating the new responsibility,
in cases squarely presenting those issues and not complicated, as
this case is, by considerations arising from distributions of power
in the federal system.
MR. JUSTICE JACKSON, dissenting.
If the defendant in this case had been held liable for
negligently inflicting personal injuries on a civilian, it would
have been obliged to pay, among other items of damage, the
reasonable cost of resulting care by his doctor, hospital, and
nurse, and the earnings lost during the period of disability. If
the civilian bore this cost himself, it would be part of his own
damage; if the civilian were a wife and the expense fell upon her
husband, he would be entitled to recover it; if the civilian were a
child, it would be recoverable by the parent. The long established
law is that a wrongdoer who commits a tort against a civilian must
make good to somebody these elements of the costs resulting from
his wrongdoing.
What the Court now holds is that, if the victim of negligence is
a soldier, the wrongdoer does not have to make good these items of
expense to the one who bears them. The United States is under the
duty to furnish medical services, hospitalization, and nursing to a
soldier, and loses his services while his pay goes on. These costs,
which essentially fall upon the United States by reason of the
sovereign-soldier relationship, the Court holds cannot be recovered
by the United States from the wrongdoer as the parent can in the
case of a child, or the husband can in the case of a wife. As a
matter of justice, I see no reason why taxpayers of the United
States should relieve a wrongdoer of part of his normal liability
for personal
Page 332 U. S. 318
injury when the victim of negligence happens to be a soldier.
And I cannot see why the principles of tort law that allow a
husband or parent to recover do not logically sustain the right of
the United States to recover in this case.
But the Court has qualms about applying these well known
principles of tort law to this novel state of facts unless directed
to do so by Congress. The law of torts has been developed almost
exclusively by the judiciary in England and this country by common
law methods. With few exceptions, tort liability does not depend
upon legislation. If there is one function which I should think we
would feel free to exercise under a Constitution which vests in us
judicial power, it would be to apply well established common law
principles to a case whose only novelty is in facts. The courts of
England, whose scruples against legislating are at least as
sensitive as ours normally are, have not hesitated to say that His
Majesty's Treasury may recover outlay to cure a British soldier
from injury by negligent wrongdoer and the wages he was meanwhile
paid.
Attorney General v. Valle-Jones [1935] 2 K.B. 209. I
think we could hold as much without being suspected of trying to
usurp legislative function.