The opinion of the court was delivered by: KNIGHT
These three negligence actions brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., were tried together, by consent, to the Court without a jury.
Only the essential facts will be stated. The actions arose by reason of a collision on August 3, 1951, between the automobile owned by Raymond E. Lederhouse and then being operated by his wife Edith L. Lederhouse, going south on Route 5 (Main Street) with a tank retriever owned by the United States, properly in the possession of the New York National Guard and being driven by Donald Truex, going east on Route 5 at the intersection with Route 18-B (Union Road). It was during the daytime. There was a signal light at the intersection. The signal light was green in favor of the plaintiffs at the time of the collision. Truex was a civilian employee of the National Guard and not an enlisted member. It appears that Truex was employed as a mechanic of the 127th Tank Battalion, which Battalion was not in the active military service of the United States; that Truex received his salary by check issued to him by the United States.
Two questions are presented (1) Do the facts establish negligence by Truex, the driver of the tank retriever, causing injury to the plaintiffs who must establish freedom from contributory negligence, and (2) Was Truex, the driver of the tank retriever, an employee of the defendant United States of America within the meaning of the Federal Tort Claims Act?
Disposition of the second question would seem to be of primary importance and will be given consideration to determine the propriety of the United States of America as a party defendant. The Government takes the position that Truex was not an employee of the United States within the meaning of the Federal Tort Claims Act. In construing Tort Claims Act, which relinquishes sovereign immunity from suit, there should be a narrow construction favorable to the sovereign. Kendrick v. United States, D.C., 82 F.Supp. 430; United States v. Michel, 282 U.S. 656, 51 S. Ct. 284, 75 L. Ed. 598.
The United States Constitution, Art. I, Sec. 8, made provision for the calling of the State militias into Federal service, and reserved to the States the appointment of officers and the training of the militia. The whole government of the militia remained with the States, except when employed in the service of the United States. United States ex rel. Gillett v. Dern, 64 App.D.C. 81, 74 F.2d 485. By the National Defense Act of 1916, 39 Stat. 197, 32 U.S.C.A. § 1 et seq., the President was invested with power to call the 'Guard' into active Federal service pursuant to constitutional provision and in addition to order the federally recognized National Guard, as a reserve component of the National forces, into active federal service. 32 U.S.C.A. § 81. The only effective control exercised by the Government and the regular armed forces relative to organizing, equipping, training and policies of the National Guard of any of the States comes from the control of funds which may be granted to or withheld from the National Guard units pursuant to granting or withdrawing federal recognition. To obtain federal recognition, certain conditions and requirements must be met before application by the National Guard unit will be granted. The application is the voluntary act of the unit and cannot be required or enforced. The penalty is the loss of federal aid which includes funds and equipment.
While Truex was not an enlisted member of the National Guard, as a civilian employee he would be considered to be in the military service of the State. New York Military Law, McK.Consol.Laws, c. 36, §§ 1 and 19. And he should be so treated. It appears to be admitted that the National Guard Unit was not in the active military service of the United States at the time of the collision. Until the unit has been called into active duty, there can be no liability of the federal government for the conduct of the members of the National Guard. McCranie v. United States, 5 Cir., 199 F.2d 581, certiorari denied 345 U.S. 922, 73 S. Ct. 780, 97 L. Ed. 1354; Dover v. United States, 5 Cir., 192 F.2d 431; Williams v. United States, 10 Cir., 189 F.2d 607; United States ex rel. Gillett v. Dern, 64 App.D.C. 81, 74 F.2d 485; Satcher v. United States, D.C., 101 F.Supp. 919; Mackay v. United States, D.C., 88 F.Supp. 696; Glasgow v. United States, D.C., 95 F.Supp. 213; Gibson v. State, 173 Misc. 893, 19 N.Y.S.2d 405; Bianco v. Austin, 204 App.Div. 34, 197 N.Y.S. 328; Spence v. State, 159 Misc. 797, 288 N.Y.S. 1009.
The Court said in Dicicco v. State of New York, 152 Misc. 541, 273 N.Y.S. 937, 939:
'The mere fact that the United States government supplied the money and the equipment to carry on the training program did not take the enlisted guardsmen out of the control of the officers of the National Guard or make them any less agents of the state of New York.'
In Fries v. United States, 6 Cir., 170 F.2d 726, the Court held that a negligent chauffeur occupying the status of a servant lent by the United States to a City and County Board of Health for the operation of an automobile owned by the United States Public Health Service, was not operating it for the United States within the meaning of the Federal Tort Claims Act.
Plaintiffs rely principally on three cases: United States v. Holly, 10 Cir., 192 F.2d 221; United States v. Duncan, 5 Cir., 197 F.2d 233, and Elmo v. United States, 5 Cir., 197 F.2d 230. Each of those cases refer to a 'unit caretaker' as being an employee of the United States within the meaning of the Federal Tort Claims Act. None of the cases involve the militia of the State of New York or the New York Military Law. Perhaps the Holly, Duncan and Elmo cases might be sustained at common law, but, when the statutory laws of the State and the Federal Governments are applied to the case at bar, it must be determined that Truex was not an employee of the defendant United States of America.
As to the defendant Truex, he was not served with process in these three actions, nor has he appeared. His status as a defendant is not considered.
Defendant United States of America is entitled to judgment of no cause of action against the several plaintiffs. Judgment may be entered accordingly.
The government has advised that it does not desire to file ...