National Mfg. Co. v. United States

JOHNSEN, Circuit Judge

(concurring separately).

To me, there are two fundamental grounds of non-liability here, and I would avoid any possible weakening of their emphasis by the discussion of other contentions.

The first is the absolute policy which Congress has expressly declared, that “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place”. 33 U.S.C.A. § 702c. This unmistakable and long-established policy can not soundly be regarded, I think, as having been repealed by implication, in the enactment of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346 , 2671 et seq., on the basis of any surrendering indication in either the Act’s general language or its legislative history. But this ground is fully covered in the court’s opinion, and I shall not discuss it further.

The second ground is the equally absolute policy which has always existed in the common law, that the dissemination or nondissemination of public information, not of a personal character, is without any basis of a tort in respect to its accuracy. This has been true where the dissemination is engaged in by a private citizen, such as a newspaper or a radio station, just as much as where it is engaged in by the Government. In both situations, whatever duty of care or of integrity might be argued morally to underlie the gathering or dissemination of such information has been regarded legally as being simply a duty owed to the public at large and not to the individual. 1 And, on historic common-law principle, where no duty is owed to an individual, there is no basis for him to claim a wrong or a tort against him.

A duty to the individual, in the gathering or dissemination of such public information as is here involved, as a foundation for the existence of a tort against him, would therefore require a statute creative of it. Missouri has never — as, I am sure, also has no other State — enacted a statute purporting to create a duty or a responsibility to the individual for any inaccuracy on the part of a newspaper or a radio station or any other disseminator to the public of such general information. And, as to the Government, the Federal Tort Claims Act recognizes the existence of a tort and a tort liability on the part of the United States only “to the same extent as a private individual [would have a liability] under like circumstances,” 28 U.S.C.A. § 2674 , or, as jurisdictionally stated in § 1346(b), “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 2

This second absolute policy of non-liability in tort for any inaccuracy in public information such as is here involved, of itself, then, leaves the present situation without any basis for recovery. To repeat what I have said, no liability would have existed against a newspaper or a radio station for any inaccuracy, negligent or otherwise, in whatever public information it might, on its own accord and by its own means, have undertaken to gather and disseminate about the flood conditions of the Kansas River, and there is accordingly no basis *280 for any possible contention that the Federal Tort Claims Act has opened the door to any such liability against the United States.

I would hope that the emphasis made here of the absolute policy of non-liability in the gathering or dissemination of public information might serve to discourage any further attempts on the part of the bar to get the camel’s nose into the tent in this general field. I confess that it is a little disturbing to me that it even should have been thought, as has been done in this case and in Jones v. United States, 2 Cir., 207 F.2d 563 , 3 that the individual citizen in a free state ought to have paternalistic protection from his Government against the need to exercise his own judgment on the things he may be told or not told by it, as a matter of purported information, and against his right to believe or disbelieve all or any of this, as he may see fit.

The philosophy of liability that is here involved would imply that we have gone so far down the road of paternalism that, equally as in the present situation, the courts should regard the Government as having an obligation, for example, to pay a flour miller for the loss sustained by him in relying upon an erroneous agriculture-department report of wheat-crop shortage and having purchased wheat on that basis to take care of his milling needs; or to pay a plumber for his loss from having stocked up on a supply of unmovable bath tubs in reliance upon an erroneous commerce-department census as to the number of homes in his community that are without, this facility; or to pay a laborer for his expense and loss of wages in having given up his job and migrated to California in reliance upon some erroneous labor-department statistics as to the amount of work there available in his field or skill.

These examples could be endlessly compounded, and the amount of liability that they would involve might be infinite. Any such concept of the Federal Tort Claims Act, I reject fundamentally and broadsides. The Federal Tort Claims Act must not be read or given reach as general socialistic legislation, but it must be viewed, for what it is on its face and in its provisions, as a legally just requirement, within our traditional concept and measure of justice, and not on the theory of granted social benefits, that the Government, in its vast penetration into the paths and activities of every-day life, should bear the same responsibility to the individual in the things it thus does as has everyone else to him under similar circumstances.

SANBORN, Circuit Judge.

I am in complete accord with the views expressed by Judge JOHNSEN in his concurring opinion.

. We are of course not here concerned with any contract liability which a disseminator of such information might perhaps incur to an individual as a matter of gathering and supplying the information to him as a private service, for personal purposes, under a special agreement.

. Even some of the liabilities which might exist against a private person have been made the subject of specific exception as to the United States, under 28 U.S.C.A. § 2680 .

. In that case, the United States was sought to be held liable for the giving of incorrect public, oil-reserves, information to the plaintiff by the U. S. Geological Survey. The court, instead of holding broadly, as I have suggested here, that no liability exists at all against the Government for inaccuracy in the furnishing of such public information, held that there was no liability, because liability for fraudulent or negligent misrepresentation was specifically excepted from the Federal Tort Claims Act, under 28 U.S.C.A. § 2680 (h). To me, it is unnecessary to scan the special exceptions from the coverage made by the Act, for the reason that liability for inaccuracy in the gathering or dissemination of such public information has never been within the coverage of the Act, so that it is unnecessary to remove it on the basis of any exception.