Petition for a Writ of Certiorari — Sheaffer v. Commissioner

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Oftie 2» Supreme Cert, t, U.S

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| “JUN 1 1963" F

| IN THE ° | W0bN DAVIS, CLARK 4

Supreme Court of the United States

_ Ocrosea TERM — EE

_BURNELL KEATH GPTAGRAFFT |.

; and Fs.

STATE FARM MUTUAL AUTO INSURANCE

COMPANY, AS THEIR INTEREST MAY APPEAR

Appellants, .

versus

UNITED STATES OF AMERICA.

Appellee.

PETITION FOR WRIT OF CERTICRARI TO.

_ THE UNITED STATES COURT OF APPEALS

FOR THE FQURTH CIRCUIT

* Harry E. McCoy ;

936 Wainwright Building

Norfolk, Virginia |

E. Pace PRESTON

Jonny M. CLovup ,

319 - 324 Royster Building \

Norfolk, Virginia

Spaweit, MgCoy. Winston & -Datton

936 Wainwright Building

‘Norfolk 10, Virginia

and

Preston & PRESTON

310- 324 Royster Building

Norfolk 10, Virginia

lee

INDEX TO BRIEF

REFERENCE TO PROCEEDINGS, BEL ow

JURISDICTION * |

- QUESTION PRESFNTED ee

_DOEs THE UNITED ST ATES i. AVE

, EMPLOYMENT.

TION, AS AN INCIDENT OF ITs I

AN OBLIGA-

TO PROTECT, DEFEND AND SAVE ITS EMPLOY.

-EES HARMLESS FROM CIVIL LIABILITIES dN.

CURRED BY SAID FAIPLOYEES WHILY ACT

WITHIN THE SCOPE OF EMPLOYMENT

, WHILE PERFORMING ASSIGNED’ DUTIES ?..

STATUTES INVOL VED .

STATEMENT OF THE CASE.

ARGUMENT :

.

~_ Capital Transit Co. vs. U. S., (Feb. 26, 1981)

ee SL Se, Remind athe ema

U-S. ys. Gilman. (1954) 347 US 507: 74 SCr. 659.

> OO: $. 8s. Yellow Cab Co.. (Feb. 26, 195 I

° 340 US 543. 71 SCr. 399...

ING

AND *

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te THE

: Supreme. Court of the United States’ |

OcToBER TERM — 1962

- BURNELL KEATH UPTAGRAFFT

| and a; | ae

STATE FARM MUTUAL AUTO INSURANCE

_COMRAN¥-AS THEIR INTEREST M. AY APPEAR

“Eppellants

a . : versus: e

_ UNITED STATES OF AMERICA.

eee ney ve:

os ne Appellee. | + yy

> . J .

PETITION’ FOR WRIT OF CERTIORARI 10

_ THE UNITED STATES COURT OF APPEALS

_ FOR THE. FOURTH ciRcuit

ios

This Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit filed by Burnell

‘ Keath Uptagrattft. and State Farm Mutual Auto Insurance:

Company, presents ‘a single question of law on which the

Fourth Circuit's ruling is in apparent direct conflict w ith

this. Court's’ decision in [ ‘nited States vs. Gilman, (1954) *

~ 347 US 507: 74 S. Ct 659. In the Gilman case, this Court

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ruled that the. United States may rot by direct action re-

cover indemnity from one of its employees after the United

_-Stafes has been held’ liable under the Federal Tort Claims:

Act for the negligence of that employee.

The ultimate point for determination on this applica-

tion for certiorari is whether the United States, by inaction,

can circumvent this Court’s ruling in-the Gilman case arid

effectively obtain indemnity from its employees. In other

words, can the United States, by its own inaction, accom-

plish the’ result prohibited by United States vs. Gilman.

Supra.

REFERENCE TO PROCEEDINGS BELOW

The opinion of the Court of Appeals for the Fourth

Circuit is unreported as yet, but is found beginning op

Page 29 of the Record herein. | : : —

/ The written opinion in the District Court for the East-

ern District of Virginia, Norfolk, Division, is,also unreport-

‘ed as yet, but is found beginning on Page ‘11 of the Record,

herein, ( —— F, Appendices to Brief for Appellants).

This. case is actually a’ third piaity. putceoding arising

out of the case of James Woodrow Edwards vs Burnell

_Keatn Uptagrafft vs United States of America. As will be

shown in ‘the Stipulation of Facts entered between’ Petit-

: ioners and the United States, Edwards filed suit. against

-‘Uptagrafft, an Alcohol Tax Unit Agent of the United States.

for injuries received in an automobile wteck which oc-_ -

curred while. Uptagrafft, driving a Government owned

vehicle, was pursuing Edwards during a routine investiga-

tion. The United States refused to defend its agent, Upta-

"graff, who thereupon’ demanded that the insurance ‘car- - ie

-rier on his personal automobile, (State Farm Mutual Auto”

Insurance Company ) defend: is State Farm removed the.

Edwards suit from a State Court to the District-Court and

impleaded the United States as a third party defendant, «

seeking exoneration = indemnity on behalf of U pta-

srafft fram his employer %

The Edwards claim for per ronal injuries Was settled

on the‘eve of trial, State Farm was thereafter joined with

_Uptagrafft as a third party plaintiff and the case proceeded _

solely on the third party claim. The District Court sus-

tained the Government’s Motion for Summary Judgment

and was affirmed by the Fourth Circuit. :

JURISDICTION

The jurisdiction ‘of this Court is invoked under the-

provisions of Title 28 U.S.C. 1254 (1).

‘The District Court Melieed Petitioners claims:-on the

Government's Motion for Summary Judgment by its Mem-

.orandum Opinion dated July 2,.1962 (Record Pages, 1-

20) and: by its’ Order of even date (Record Page 21).:;

. Thereafter Petitioners appealed to the Court of Appeats

for the Fourth Circuit which heard oral argument en: Janu-

ary 14, 1963, and rendered its Opjnion affirming the Dis- —

trict Court (Record Pages 29- 36) on March 7, 1963. ° |

QUESTION PRESENTED

DOES THE UNITED STATES HAVE AN OBLIGA-

= ‘TION. AS AN-INCIDENT OF ITS.EMPLOYMENT,

- TO. PROTECT, DEFEND AND’ SAVE ITS EM:

PLOYEES: HARMLESS ‘FROM CIV . LIABILIT-

IES INCURRED BY SAID EMPLOYEES WHILE

‘ ACTING WITHIN THE SGOPE OF EMPLOY-

MENT AND WHILE PERFORMING ASSIGNED

DUTIES? ,

This central issue carries the following sub-question: .

DOES THE FEDERAL TORT CLAIMS ACT

“ CARRY THE GOVERNMENTS CONSENT. TO BE

SUED FOR. EXONERATION AND/OR INDEM-

NITY AS A THIRD- PARTY DEFENDANT?

If these issues are ee in the affirmative, then >

the decisions and: Orders of the Fourth Circuit and of the

District Court must be revers ed and final judgment ¢ entered |

for Petitioners.

STATUTES INVOLVED :

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The principal’ statute involved ‘isthe. Federal Tort

Claims Act, specifically that section granting jurisdiction

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inthe Federal District Courts, as follows:

28US.CA. 1346(b): | ie -t?)

“(b) Subject to the provisions of chapter 171 of

this title, the distri¢t courts, together with the United

States District Court for the District of the Canal

Zone. and ‘the District Court of the Virgin Islands,

shall’ have exclusive. jurisdiction of civil actions on

claims against the United States, for money damages,

accruing on and after January 1, 1945, for injury or

loss of tie aide or p.rsonal injury or death caused

‘by the negligent’ or wrongful act or omission of any

employee of the Government while acting within the .

scupe of his office or employment, under: ciréum-

j

stances where the United States, if a private person,

wouid be liable to the claimant in acordance with the

‘law of the place where the act or ominission OCCUr- +

red. = * : » ‘

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"STATEMENT OF THE CASE

The facts on which decisions were rendered in the

_ District Court and Court of Appeals were not in .con-

- flict but were presented by written stipulation as tollows:

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STIPULATION OF FACTS

It is hereby stipulated by and betweea counsel for the

| nited States of America and counsel for Burnell K: Upta-

grafft and State Farm Mutual Automobile Insurance Com-'

pany that the following facts are deemed true and correct

and cani be admitted w ithout further prot thereof:

1. That on September 11, 1959, Burnell Keath Upta

grafft was a Criminal Investigator or Agent employed, by

- the Alcohol and Tobacco Tax Unit of. the Internal Revenue

Service of the Treasury De partment of the United States

of America.

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2. That. on picsaiaione ll; 1959, Burnell Ke ia: U Asta.

orafit was 27 vears:old; had gradtated from an accredited

‘high school, had graduated from Washington State Col-

lege with a degree in police science and administration, _

and had. atterided.the U.S. Treasury law Enforcement

School, Washington, D: C., from the middle of Septembe r,

1958 until Nov ember. 1, 1958..

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3. That Burnell Keath U para t was iiss ed by the °

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_Alcohd! and Tobacco Tax Unit of the Internal. Revenue

Service of the Treasury Depagment on F ebruary 24, 1958

and had been continuously by same t rough September

“he That st ase at Norfolk, Virginia, he reported ‘for

ou ea the very early. moming hours of September

1959, about 2:00 a.ne., for a criminal investigation in.

the: location and destriction of an illegal distillery, which

was completed by 6:30 to 7:00 a.m/and arrived in the Nor-

im ACT. TU office by 8:00 a.m.

5. That he and his fellow Agents were dressed in greet.

fatigues o1 work clothes which ty pe ¢ lothing is recom-—

mended by the United States for.use te the cents in’ per-

forming their field investigations. |

6. That about 8:20 to 8:30 a.m. Agent Lane Moloney,

|r. re ceived’ a tele phone, call from an “yaformer whom he.

had contacted previously and learned, that the informer

would meet him (Moloney) in Pugkesvi ile. Virginia, to

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locate.an illegal distillery. i. :

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7. That Investiestar Mgloney was thus in charge of this

particular field .investigauon and requested assistance of

other Criminal > iecaes a or Agents

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8. That” shin was joined in the. investigation by a

U ptagrafft and Agent John J. Hicks ‘~

9. That leaving thgjir office, ‘Re ene Inv estigators

went to a nearby garage to obtain a Gov ernment owned

automobile for use in their fieid:work and transportation to

Pughesville. They used a 1956 Two-Door Chevrolet Sedai:.

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painted a light- - green too: ‘and ‘bearing, North Carolina

license plates tor the vear 1959. See he

10. That the car was, complete: unmarked and there

was no Way to distinguish it from any other vehicle with

the. possibie ‘exception that its radio anterna-was a little

bit larger in circumference..than those normally seer on

private v ehic les.

11. That it was the polics v of the Government to rotate

and cha: nge the license plates on this car from time to time

in order that its disguise could be maintained.

[2 That there-was a siren mounted, under the hood or °

within the radiator cowl but. of course this was not visible

from the exte rior.

~ “3 That U ptagenfft’ drove the car ‘while Investigator

Moloney, who. was directing the field inv estigation, rode in

the right trout: seat and Investigator, Hicks rode in the

rear Seat: > :

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14. That upon arrival in Pughesville they met the in-

former, located the site of the egal distillery, took: no

action to destroy the stilleand returned to the highway

in an effort to locate someone who cither owned, operated

‘or in some wav w as Wane ‘cted with the still.

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i That as au ATT. Agents drove down the nee

they observed a 1954 Buick. being operated by James’

Woodrow: Edwards. ” ; |

16.That this Buick was backifig from a local junk yard

which the Agerits Considered a “nip joint’. ree

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17. That Inv estigator “Molony thought that the driver

of the Buick was a known whiskev violator named Porter

18. That all of the Agents thought that the Buick was

ancocas ma suspic ious Manner .

19. That the Buick sped away. from: the scene and

a was taken up by the Investigators. oe :

20. That at times the speeds involved in this pursuit

ranged anywhere from 40 miles per hour to 90 miles pet

hour.

2i. That during the pursuit, the two cars, driving on a -

two-lane, narrow country road, approached a bread truck

parked on the shoulder.

22. That the Agents tried to overtake the fleeing ear

and box it in behind the bread truck but in their efforts,

the two cars came in contact and tapped each other.

23. That Uptagrafft and Moloney admit that Moloney,

sitting on the right front seat drew his pistol and was going

to shoot at the fleeing car. : rs

- That about 7/10th of a nities ey passing the bre =

truck and while still driving at the excessive speeds of

65 to 90 miles per hour, the fleeing car ran off, the road —

and turned over in a ditch.

25. That its driver Edwards, rer personal in-

juries asa result of this accident.

26. That James: Ww oudrow eaiinit testified in dis-

covery that he saw Uptagrafft, Moloney and Hicks dressed

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in ald. dirty clothe sand observed the Agents in h pursuit of.

him.

27. That he admits that the Agents sounded A siren

and further testified that he slowed down in answer to the

sirens but wdien the Agerts’ pulled alongside of him, Moi-

onev was flashing a gun and ‘bratidishing it’at him.

*

28. That as the A.T.T.U..car was conipletely unmark-

ed, the Agents were in rongh, fatigue dress and upon see-

y:

ing Moloney gestaring with a gun, Edwards became sev-

erely frightened and there fore accele rated his car in order

‘to make an escape.

29°. That Edwards then’ testified that the AT TU

Agents kept completely on top of him at speeds of $5 to

YO miles per-hour, were éoatinnally bumping the rear of

_ his car with ‘the ATP ©. vehicle and were actually tap-

“ping bumpers. with ham up to the point of the accident.

.

. ‘That ; un» Edwards ry ae ‘da curve with the,A.T.T

U..car ie him, he Jost control and his car turned over

in the adjoining drainage ditch

31. That awards stressed that the only reason he Con:

tinaied to try an escape was because of his tear induced by

the A.T.T.U.Agent’s dress. automobile pursuit and brana-

ishing of a gun.all on a lonely and deserted Country road

32.-That immediately’ after the aecident, the Agents

went over to the Edwards ‘vehicle and. Uptagrafft quotes

Edwards as saving: “You three damn bums with a bievcle:

siren are ting fo be sorry for this”. Edwards himself -ver-

“ifvs this at page 29 of his discovery deposition.

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33. That subsequent investigation revealed that Ed-

wards -was completely innocent and that there was no

reasonable basis or foundation for the suspicions of the

Agents and that Investigator Moloney had been completely

in error wher he thought that the driver ofthe Buick was

the known whisky violater named Porter. |

34. That Uptagrafft ieiediately Beary this acci-

’ dent to the Alcohol & Tobacco’ Tax Unit of the Internal

Revenue Service of the Treasury Department of the United

States of America. ;

_ 35. That a complete investigation of the accident was

‘made by Inspector Roy A. Johnson, on belkialt of the United

States of America.

3. That Uptagrafft was advised that if he had any

autofnobile liability insurance on his privately owned, per-

sonal automoble, he should report the accident to his in-

surance company. ,

(37. That on September 21, 1959, Uptagrafft reported

this accident to an agent of State Farm Mutual Automobile

Insurance Company.

| 38. ‘That on October 14, 1959, the case of James Wood-

row Edwards vs. Burnell Kggth Uptagrafft was filed in

the Circuit Court of Norfolk Gounty by. plaintiff's attorneys.

39. That the United States of America refused to as- |

sume defense of the Edwards case on behalf of Uptagrafft.

40. That this case was Subsequently removed to the

United States Cc ourt for the- Eastern District of Virginia

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by attorneys for State Farm Mutual Automobile Insurance

ei. Company.

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o ~ 41. That the defense of this case was assumed by Upta-

grafft’s liability insurance carrier. pursuant to automobile -

liability policy no. 975-479-RO1+46 and demand made upon

thei by Uptagrafft. .

42. That on January 14, 1960, the United States oi

America acting tlirough an assistant United States At-

torney for the Eastern District of Virginia attended the

discover deposition of Burnell Keath Uptagrafft, John J.

“Hicks and Lane Molony, Jr. -at plaintiff's attorney’ s office

and participated therein.

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45, That on or about June 16, 1960, subsequent to a

pretrial conference betore the Court,.at which an Assist--

ant United States Attorney for the Eastern District of Vir-

ginia was present and with full knowledge.of the said.U. $

Attorney, State Farm Mutual’ Automol ile. Lisurance Com-

pany acting on behalf of the policyliolder,_U ptagraftt—+

te _ negotiated settlement of -plaintiff sspersonal injury and prop-

os erty damage claims for the sum of $15,752.00 and there-

: after paid the same thereby terminating thé case arid claim

of James Woodrow Edwards against Burnell Ke ath. U pta-

graftt

eon 4. That*the United Statés of América was aware of the

aforesaid settlement between State Farm-Mutaal Automo-

ile Insurance Company acting on behalf of Uptagrafft and

Edwards, but neither participated, objected to or acquiés-

ced therein.

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" 45 That State. Farm \lutual.. Automobile Insurance

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“Company incurred legal expenses for attorneys fees and ¢

costs in ‘defending the Edwards case ‘ine the amount of

$1,363.96. ae.

46. That the total amount expénded by State Farm

Mutual Automobile Insurance Company on behalt ‘of Bur-

nell Keath Uptagraftt has therefore amounted to $17.-

115.96." |

. 47. That the aforesaid sum is a reasonable and proper”

charge for the settlement negotiated and ihe attorneys

tees, costs, and services rendered in this’ case on, behalf of:

Uptagrafft. 5

_ 48. That this stipulation may be used at the trial of this

case by either party in lieu of evidence the rein

‘So Stipulated: .

——s S

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Jou: M. CLroun——

Of Counse el tor Burnell Keath U ‘pti agrafft

and State Farm Mutual Automobile Insurance

Company

So Stipulated

Rocer TO Winitaats bi

Of Counsel tor U itited State s ot Ame rica

ancunen

In the joint cases of Fnited’ States vs - Yellow Cah Co

and Capital Transit Cos: Unite d States Opinion by Mr.

"Justice Burton, Feb. 26. 1951) “340 U.S.°543, 715. Ct.

399. the Supreme Court ruled that the Federal Tort Claims

.- 419 . 2

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Act carries ‘the ¢ Governments consent to be sued either .

“in a separate proceeding or as a third-party defendant, by

a joint tort-feasor seeking contribution for damages paid

an original injured plaintiff.

In the Yelloyy Cab case..the original injured plaintiffs

were pass@igers in a taxicab which was in collision with

a United States mail truck in Philadelphia. The taxi pas-

sengers filed suit, against the Cab Company which ‘im--

pleaded the United States under. the Federal Fort C laims.

Act asa third- -part) defendant charging that the negli-

gence of the mail-truck “driver made the, United States

liable for all or a part of the passenger's claims. The-Gov-

ernment moved -tor its dismissal as a third-party (defend.

‘ant on thy groufd that the’ Federal ‘Tort Claims Act does

not authorize suits against it on derivative clatins

a | — -,

In the Capital Transit case, ‘the origiial injured ‘plain.

tiff was a passciiger,on a streetcar which wasn ‘collision

in Washington, D. C.. with a jeep aperated by a United

States soldier acting within the scope.of his duties. ‘The

streetcar passenger sued: C apital Transit which impleaded.

the United States under the Federal Tort Claims Act as a

third-party defendant, charging that the soldiers negli

gence was the sole or a contributing cause of the collision

- and therefore asking judgment against the United States

~ for a contributing portion of any sum which might |

awarded against the Transit‘Company imtavor of the pas

sen ger. ae . a =

The- ‘language used by Mr. Fustic Burton states « tearh

the Supreme Court's mandate that fine distinctions, be

tween various types of clainis against. the government

should not be read into the Tort Claims Act. that the Tort

a

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Claims Act should not be whittled down by refinements

and that the authority to sue the sovereign should’ be dib-

erally construed, We reter to the followi ing:

71S. Ct, 399 at 402

(1,2). The ‘Federal. Tort Claims Act waives the

Government's tmmunity from suit in sweeping lan-

gnage. It unquestionably waives it in favor of an in-

jured person. It does the same for an insurer whose

claim has been subrogated to. his. United States v.

Aetna Casualty & Surety Co., = U S. 366, 70 S.Ct.

(4) The words “any claim against the United States

. °° *ort account of personal injury - (emphasis- sup-’

‘plied ) are. broad words in common usage: Thev are

not words of art. Section 421 lists 12 classes of claims

to which the waiver shall not apply, but claims for,

contribution are not so listed. 2... .

At 403:

(11,12) Of course there is no immunity from suit

by the Government to collect claims for contribution

due it from its joint tort-teasors. The Government

should be able to enforce eek i in a federal court

not only in a separate action but by impleading the

joint tort-feasor asa third-party. deféndant. See 3

" Moore's -Federa] ‘Practice (2d ed. 1948) 507, et seq

It is fair that this should work both ways. |<

(16,17) Once we have concluded that the Federal

Tort Claims Act covers an action for contribution due

a tort-feasor, we should not, by refinement of con-

struction, limit that consent to cases where the-pro-

cedure is by separate action and deny it where*the

same relief is sought in a third-party action. As ap-

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plied to the State of New York. judge Cardozo saicd

it» language ‘which is apt here: “No sensible reason

can he imagined why the state, having consented to be

sued, should thus paralyze the remedy.” Anderson

v. John L. Haves Const. Co., 243 N.Y. at page 147,

153 N.E. at page 29. “A sense of justice has brought

a progressive relation hy. legislative enactments of

the rigor of the immunity rule. As representative gov-

ernments. attempt to ameliorate inequalities as nec-

essities will permit, prerogatives of the government

vield to.the needs of the citizen. ° ° ° When authority.

Is given, it is liberally construed.” United States \.

Shaw, 309 U.S. 495. 501. 60 S.Ct. 659, 661. S4 L.Ed:

888. .°. . ; ; : ;

At 407. |

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. The. availability of third-party procedure. is

intended to facilitate, not to preclude, the triaPof mul--

‘tiple claims which otherwise would-be triable only in

separate-proceedings. THe ‘possibility of such proced-

ural difficulties is not sufficient ground for so limiting

¢ the scope of the Act as’ to preclude its application to

all cases of contribution or even to all cases of con:

tribution arising under third-party practice: .

Just as the ‘mail-truck driver in the Yellow Cab case

and the soldier in the Capital Transit case were acting

within the scope’ of their respective, employment at. the

> time of their accidents,.so was Uptagratft acting within

the scope of his employment in driving the Government.

owned unmarked automobile while pursuing the “suspect”

( Edwards, the original injured plaintiff) under the general

directions of A.T.T.U. Criminal Investigator Molotiey who

was in overall charge of the particular’ investigation and:

who was riding in ‘the right tront-seat of the government

_ vehicle, brandishing a gun. .

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‘Undoubtedly the Government, when sued by an in-

jured plaintiff under the Tort Claims Act, has a right to sut _

third-party to enforce exoneration and/or indemnity

either by_a separate action or by impleading under the

third-pagtypractice. In the language of Mr. Justice Buggon:

“It is fair that this should work beth ways.”

If the Act ‘is. interpreted as decided below, it means

that if an injured party recovers a judgment against the

Government, then the Gevernment can sue a third-party,

tor the latter's exoneration and/or indemnity. On the other

hand, if the injured party: recovers against the private third- .

party, then that private third-party cannot sue the Govern-

ment to enforce the Government's obligation of exonera-

tion and/or indemnity.

Once itis concluded that the Tort Claims Act covers

an action for eyoneration and/or. indemnity, the applica-

tion. of that Act should not be limited by refinement of

_construction to cases where the procedure is. by a separate

legal action buf the relief should he granted in-a third-

party proceeding. As Judge Cardozo is quoted by Nir

Justic e Burton in the Yellow C aby case:

“No sensible reason can be imagined why the state,

having consented to be sue vd. should thus paralyze the

remedy.”

indeed the very idea of third-party procedure is inten-

ded to facilitate the trial of. multiple claims which other-

wise would le tried. only in separate proc veedings.

‘This anes is drawn directly from the Yellow Cab

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case and léads to the inescapable conclusion that

THE FEDERAL TORT CLAIMS ACT CARRIES

* — THE GOVERNMENT'S GONSENT TO BE SUED

-, FOR EXONERATION-AND/OR INDEMNITY 4S -

‘A THIRD-PARTY DEFENDANT. ese

The’ real crux .of this case-in which Uptagrafft seeks

exoneration and/or indemnity from the U.S. may be liken-.

ed directh® to the situatiori presented to the Supreme Court ;

in the 1954 case of U.S. vs. Gilman. 347 US. 907; 74 S.Ct:

_ 695. Indeed, the Fourth Circuit acknowledges this fact *

in its Opinion, saving:

Record 34.

“The tacts of Gilman are the exact converse of those

involved here.”

_ In Gilman the single question presented was whether .

the United States may recover indeninity trom one of its.

emplovees after the United States has been held liable

under the Federal Tort Claims Act for the negligencesaL

‘ > ver , . ; :

that employer... igs %

The Supreme Court ’lfeld that the United States may .

not recover indemnity trom. ats emplovees in such a situa-_

tion, reviewed jin the footnotes) a’ part of the legislative

history from which. it appears that ( congress never intend.

ed. for the government entplovee to assume the risks ‘and

-liabifities of civil suits arising out of performance of gox

ernmental duties and then the Court made a clear: distine-

tion of the relationship between a private emplover who

holds a common law right of indemnity agginst his private

employee whose negligence ‘has made the employer liable

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and the rights of the United States to be indemnified by its

emplovees for liability incurred. under the Tort Claims -

Act. The Supreme Court did not accept the analogy of

the relation of a private employer to a private employee,

but .on the contrary reviewed the reasons: why the United

States as’ a public emploverscannot, as a matter of public

‘policy, obtain indemnity from. its emplovees for: their ac-.

tions, saying:

S.Ct. 695 at 697-697:

The re hdin’ Sietinininis the oe | States and its

employ ees have presented a myriad of problems with

-which the Congress over the vears has dealt. Tenure,

retirement; disc charge, veterans pre ferences, the re-

sponsibility of the United States to some emplévees

for negligent acts of other emploveés—these are a

few of the aspects of the problem on awhieh Congress *

has legislated. Government employment gives rise to’

‘policy questions of great import, both to the emplgvees’

aud to the Executive and Legislative Brauches. On .

the employee side are questions of considerable im-

port. Discipline of the employee, the exactions w hich

may be made of him, the merits or demerits he may

suffer, the rate of his promotion are of great conse-

quence to those who make government servic e their.

career. The right of the employer to sue there mplouee

is a form of discipline. Perhaps the suits which would ,

be instituted under the rule which petitioner asks

would mostly be ‘brought’ only when the’ employee |

carried insurance. But the decision we could fashion

could have no “such. limitations, since. we deal only

with a rule of indemnity which is. utterly independent

_of any underwriting of the: liability. Moreover, the

suits that would be brought ivould haul the employee. .

to court and require him to find a law yer, to face his

emplpyer's charge, and to submit to the ordeal of a

e ° -¢é

IB age

Ay

trial. The time eut for the *rial und its preparanon®

plus, the: cut-of-pocket expenses, might well impose

an the employee a heavier finanvial burden than thee

loss of his seniorit; or a demotion in rank. When the

United States sues: an employee and takes hiin to

court: it lays the hdavy hand ef discipline on him. as

onerous to the employce perhaps as any measure the

employer might taki. except discharge self”

a

Having ruled that the Government s.atterapt to obtam

indemnity: is a forrn of discipline, that whether.or not the

- emplovee has liability insurance is imniaterial, that the

: Government's attempt to obtain indemnity-~would subject 7

the Government employee to invur legal expenses. submit

to the ordeal of,trial, probably lose seniority, incur a demo.

tion and provide other exactions and demerits of the en).

plovee, the Supreme Court in the Gilman case has in effect

stated that the- Federal Government must stand behind

and answer for the negligence aind torts of its emplovees

which negligence and torts are committed in the course

of their employment : he ad

The District Court foxshe Northern District Gt Hlinois

recognizes in the 1954 decision in Sullitan vs $190

F. Supp. 217, decided prior to ‘U. § vs-Gilman «supra

that the U. S. could not seek indemnity from an FBI

“agent for this negligente in causing an automobile accident

in the course and scope of his emplovment | thereby im.

posing liability on -the U.S. under the T.C.A.) and ruled

that Congress has provided that the U. § Government

should bear‘ the’ cost of the negligent acts of its emplovees

We refer to 120 F. Supp. 217 at. 219 in which the Court

denied the Government's motion to implead the F.B J

_-agent for indemnity: ‘2

| . ry

-~

It is sufficient to sav that Congress has de-

cided that the government should bear the cost of the

negligent.acts of its employees. If the procedure now

. proposed by the government were adopted, that cost

would invariably be shifted to the employees and

their insurers. For that feason; the goverime ut S SeC-

ond motion must be denied. . :

‘The facts of Uptagrafft’s case in the matter sub judice

are..stronger than any reported decision. Uptagrafft, an

alcohol.and tobacco tax unit agent, was on duty: a fellow

agent received a telephone tip as to the location and opeta-

tion of a still; at the suggestion and request of the fellow

agent Uptagrafft, the fellow agent and a third agent pre

ceeded to make an investigation and preparations for a ;

raid. Uptagrafft was driving a vehicle owned by the U. S.,

equipped by the L. S supplied to Uptagrafft and his fel-

low agents inthe Norfolk -Office\as an unmarked and under-

cover vehicle for use in coné:ting surveillances and. sec-

ret operations.. This car was properly disguised and per-

iodically the license plates would be changed, so that it

would not be recognized. All of this was done pursuant to

( ie ara policy, procedtre, direction and supervision.

While driving the Government vehicle in performance of —

his duties, while accompanied by two other agents, one of

whom drew a gun and waved it at the suspect (the plain-

tiff Edwards in the original case.) and while engaged in hot

pursuit of the suspect, Uptagrafft drove the Government

vehicle at excessive speeds for the country road involved

and according to the discovery deposition of the suspect

(Edwards) Uptagrafft tapped bumpers while trying to

force the suspect to stop. The suspect lost control of his’

car, turned over in a ditch and was very seriously injured.

Inspection and examination made immediately after the

. * 20 a e

~%

accident revealed that the suspect was. not a violator and

there were no grounds for any charges to be made against

the suspect. Again it is pointed out that this was a case

which was not under Uptagrafft’s supervision, but. on

Which he was asked to work by one of the other agents -

_ who was accompanying him in the Government car.

Faced with a personal injury suit solely against him in

the amount of $50,000.00 bythe severely injured but in-

nocent suspect: Uptagrafft was confronted with the same

discipline, that Mr. Justice Douglas discussed in U2 §. vs

Gilman (Supra). At the time of the. chase or hot pursuit.

Uptagrafft had either to coMinue the pursuit aid attempt”

tg apprehend the suspect or he would probably have suf-

tered demerits, his chances of promotion would have been

lessened and his record marked unfavorably. At-the tire

of the law suit against him he was compelied to find a

lawyer, take time out for trial preparation, incur out-of-

pocket expenses, worry and concern that would affect the

performance of his normal duties and the injuries suffered

by the innocent suspect made the financial risk far greater

than the limited insurance coverage which Uptagrafft had.

This discipline, in the words of Justice-Douglas impeses

a heavier burden than the loss of seniority or a demotion

in rank and is-as onerous as any measure that.can be im-

posed on Uptagrafft except discharge itself 4

Thus the facts and question presented in this Petition

tor Writ of Certiorari are the exact opposite of the Gilman

_case. “In Gilman this Court prohibited. the United States

from proceeding. direcily. agairist. its ‘emplovee. In this

‘case the District Court and Fourth Circuit has permitted

the United States. to evade the 1 andate of Gilman. In

"si

other words, the Fourth Circuit has permitted the United

States to “come in thé back door” and accomplish the very

thing (relief of the United States from’the obligation of

finaye ial responsibility for the acts of public employees in

the performance of their duties) which this Court: pro-

hibited by the “front door” or direct approach in the Gil-

man case. .

Consequently a-Writ of Error should be issued to cor-

rect this emasculation of this Court's decision.

While this case was under consideration in’ the Dis- -

trict Court, Congress enacted Public Law $7-258 approved

September 21, 1961 and found at 28 U.S.C. (Supp. IIL)

2679 | Record Pages 25 and 26) which prohibits suits di-

rectly against Government emplovees who are operating

vehicles in the course of their employment.. That, of course:

was the situation in which Uptagrafft found himself ‘in the

case sub judice. Of course, this: amendment to the Tort

Claims Act was ineffective as to the claim asserted against

| _Uptagrafft by the injured Edwards, However, that amend-

ment, which now prohibits the type litigation which gave .

rise to this third party.proceeding, did not and could not

change the obligations encumbent upon. the United States

- as a public employer. ati@as delimited in the Gilman case.

If the United States could not shift its ultimate financial .

responsibility to its employee by direct action prior to this

amendment (as dectded in Gilman ), then certainly it could®

not shift its ultimate financial responsibility to that em-

ployee by indirection or by inaction prior to this amend-

_ ment. Consequently, the amendment itself has no beaving

or relation on the ultimate financial responsibility of the

U nited States but simply estalflishes the Tort Claims Act

22

as the exclusive remedy available to a plaintiff such ;

Edwards. \

__ In view of this Court's sound pronouncement in hited

" States|vs. Gilman, Supra, and the case of Sullivan vs. United

States, Supra, and the amendment to the Tort Claims Act:

now :providing that to be the exclusive remedy of a third

party, there is but one conclusion. ’

THE UNITED ‘STATES HAS AN OBLIGATION,

- AS AN INCIDENT OF ITS EMPLOYMENT. TO

PROTECT, DEFEND AND SAVE ITS EMPLOY-

_ EES HARMLESS FROM CIVIL LIABILITIES IN-

_ CURRED BY SAID EMPLOYEES WHILE AGTING

- WITHIN THE SCOPE OF EMPLOYMENT AND

WHILE PERFORMING ASSIGNED DUTIES

Accordingly, a. Writ of Certiorari should be granted.

Respectfully submitted,

BURNELL KEATH UPTAGRAFFT |

AND STATE FARM MUTUAL AUTO

. . INSURANCE COMPANY '

. By :

“Harry E. McCoy

E. Pace Presto~

Joun M. Coup

SEAWELL, McCoy. Winstox & Datros

936 Wainwright Building “

Norfolk 10. Virginia

; and ; oe! . “

Preston ’& Preston

310-324 "Rovster Building ; A.

Nortolk 10, Virginia rey