Before Staley, Hastie and Smith, Circuit Judges.
SMITH, Circuit Judge: These appeals are from judgments in favor of the use plaintiffs in actions for wrongful death brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 and 2674. The deaths resulted from a mid-air collision between a commercial airliner owned by Capital Airlines, in which the decedents were passengers, and a jet trainer plane owned by the defendant and allocated to the Maryland Air National Guard pursuant to § 702(a), 32 U.S.C., and the regulations promulgated thereunder; the collision occurred within the territorial limits of Maryland. The federally owned plane was piloted by one Captain Julius R. McCoy, a rated pilot and a commissioned officer of the Air Guard, employed full time in civilian status as a maintenance technician holding the classified position of Aircraft Maintenance Chief. At the time of the accident the Maryland Air National Guard was not in the active service of the United States.
The trial court found that the sole proximate cause of the accident was "the negligence and wrongful conduct" of the pilot of the federally owned plane. This finding is not challenged here.The trial court also found that at the time of the accident the pilot was acting in his capacity as an "air technician," and, as such, "was a civil employee of the United States acting within the scope of his employment." This finding, on which the respondeat superior liability of the defendant was predicated, is challenged as clearly erroneous and legally unsupportable. We find it necessary to dispose of two preliminary questions before entering upon a consideration of the principal issues raised by these appeals.
The plaintiffs argue that under rule 52(a) Fed. Rules Civ. Proc., 28 U.S.C.A., the trial court's findings of fact may "not be set aside unless clearly erroneous." We do not agree that the "clearly erroneous" test is applicable on the present appeal. The actions were submitted to the trial court on the record made in the consolidated trial of related cases tried in the United States District Court for the District of Columbia. This record consisted primarily, although not entirely, of depositions and written exhibits as to which there was no dispute.
It has been held by this Court, and others, that under such circumstances the findings of fact are reviewable on appeal and need not be given the weight usually accorded them under the rule. Surgical Supply Service, Inc. v. Adler, 321 F.2d 536, 539 (3rd Cir. 1963); Mayo v. Pioneer Bank & Trust Company, 297 F.2d 392, 395 (5th Cir. 1961); Merchants National Bank and Trust Co. v. United States, 246 F.2d 410, 417 (7th Cir. 1957), cert. den. 355 U.S. 881 (1957), reh. den. 355 U.S. 920 (1958); Lang v. First Nat. Bank of Houston, 215 F.2d 118, 120 (5th Cir. 1954); In Re Kellet Aircraft Corp., 186 F.2d 197, 200 (3rd Cir. 1950); Orvis v. Higgins, 180 F.2d 537, 539, 540 (2d Cir. 1950), cert. den. 340 U.S. 810 (1950). We are in as good a position as was the trial court to evaluate the evidence, draw the inferences of which the evidence is reasonably susceptible, and decide the critical questions raised on this appeal.
We note further that the consolidated trial of the related actions resulted in judgments favorable to the plaintiffs therein concerned. These judgments, one of which was reversed only on the issue of damages, were affirmed on appeal to the United States Court of Appeals for the District of Columbia. United States v. State of Maryland, 322 F.2d 1009 (1963). A petition for a writ of certiorari was denied on December 16, 1963, 32 U.S.L. Week 3220.This denial "imports no expression of opinion upon the merits" of the cases involved, United States v. Carver, 260 U.S. 482, 490 (1923); House v. Mayo, 324 U.S. 42, 48 (1945); Sunal v. Large, 332 U.S. 174, 181 (1947), and is therefore of no significance in the instant appeals.
The Federal Tort Claims Act imposes liability upon the United States for personal injury or death caused by the negligence or wrongful act or omission of "any employee of the Government while acting within the scope of his office or employment, 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." 28 U.S.C. 1346(b). The term "employee of the government," as defined by statute, "includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, . . . ." 28 U.S.C. 2671.
The first and most important question for decision is whether the relationship between the United States and Captain McCoy, in his civilian position as an air technician, was that of employer and employee within the meaning of the statute. Thee determination of the question requires consideration of the historical origin of the National Guard and the constitutional and statutory provisions under which it is organized, maintained, disciplined and regulated in its peacetime status.
The respective powers of the federal and state governments with relation to the militia forces are defined by Article 1, § 8 of the Constitution, which provides, in pertinent parts, as follows:
"The Congress shall have Power . . ., to . . . provide for the common Defence and general Welfare of the United States;
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
These provisions established a division of mutually exclusive powers. There was vested in Congress the limited power to enact laws necessary to the effective organization of the militia forces which were deemed necessary to the common defense. There was reserved to the states the right to organize, maintain and regulate such forces and to appoint and commission their officers, a right which existed in and was exercised by the states prior to the adoption of the Constitution. Selective Draft Law Cases, 245 U.S. 366, 383 (1918). The quoted clauses made it manifest that the militia units were to remain subject to the control and authority of their respective states until called into the active service of the United States for the special purposes authorized.
The militia forces of the several states are, and, since 1903, have been organized and maintained as units of the National Guard*fn1 under joint federal-state auspices. Act of January 21, 1903, 32 Stat. 775, commonly known as the Dick Act. However, the first comprehensive exercise of the Congressional power was the enactment of the National Defense Act of 1916, 39 Stat.166, and the amendments contained in the Act of June 4, 1920, 41 Stat. 759.
The cited legislation provided for the reorganization of the Army of the United States, and, as an incident thereto, the organization and training of the National Guard units of the various states on a basis conforming to that of the Regular Army. However, it should be emphasized that both acts specifically declared that the organized Guard was to be a component of the Army of the United States only "while in the service of the United States." There was in each of the acts a specific recognition by Congress of the constitutional limitations on its power. This legislation did not alter the status of the National Guard units as independent military forces subject to the exclusive jurisdiction of the several states, except when mustered into the active service of the United States.
The enactments of 1916 and 1920 authorized the appropriation of funds for the support of the National Guard and the apportionment thereof among the states and territories whose organized units met the standards prescribed by the enactments and the regulations promulgated thereunder by the Secretary of War, a condition precedent to federal recognition. While Congress assumed full responsibility for the financial support of the National Guard units which qualified for federal recognition, it specifically recognized the constitutional authority of the several states and territories to organize, maintain and discipline their respective units under local law.
The statutes also authorized the procurement, at federal expense, of arms, equipment and material, and the issue thereof to the National Guards of the several states and territories upon requisition of their respective governors. As a condition precedent to the allocation of such property, the states were required to make adequate provision for its maintenance and protection. The relevant sections of the Act, and the amendments thereto, provided that the arms, equipment and material issued were to remain the property of the United States and, further, that the states would be held liable for the loss, damage or the destruction of property due to carelessness or neglect. It is clear that under the statutory plan the possession and control of the allocated property, as well as the responsibility for its care and maintenance in accordance with prescribed standards, were to be committed to the states.
The Acts of 1916 and 1920 were further amended by the Act of June 15, 1933, 48 Stat. 153. The only amendment here relevant (Section 5) established the "National Guard of the United States" as a "reserve component of the Army of the United States," consisting of the "federally recognized National Guard units" of the states. However, the statute did not alter the status of the Guard units or their relationship to the federal government. The amendment specifically provided that "the members of the National Guard of the United States shall not be in the Active Service of the United States except when ordered thereto in accordance with law, and, in time of peace, They Shall be Administered, Armed, Uniformed, Equipped, and Trained in Their Status as the National Guard of the Several States. . . ."
The laws relating to the military forces, including the National Guard, were revised and codified by the Act of August 10, 1956, entitled "An Act to revise, codify, and enact into law, title 10 of the United States Code, entitled 'Armed Forces', and title 32 of the United States Code, entitled 'National Guard'," 70A Stat. 1. This initial codification was restricted to the statutes which had become effective prior to March 31, 1955. The statutes which became effective thereafter were incorporated into the codification by the Act of September 2, 1958, 72 Stat. 1437. The purposes of the codification were to restate and clarify the existing laws and to eliminate earlier provisions which had become obsolete, particularly those contained in the Acts of 1916 and 1920. The substance of the laws was not changed.
The codification defined, as did the earlier legislation, a division of powers consonant with Article 1, § 8 of the Constitution, supra. There was reserved to the states the authority to organize, discipline, train and regulate their National Guard units, as theretofore, but in accordance with standards of training and discipline prescribed by the acts of Congress and the regulations promulgated thereunder by either the Secretary of the Army or Secretary of the Air Force. It is clear from the legislation that compliance with these standards was a condition precedent to the right of the states to federal recognition and subsidization.
At all times therein relevant, the pilot of the federally owned plane, Captain McCoy, held a dual status. He was a commissioned officer of the Maryland Air National Guard under appointment by the Governor. Maryland Code, Article 65, § 70. As a duly appointed and commissioned officer, he had qualified for federal recognition, pursuant to §§ 305 and 307 of Title 32 U.S.C., and the pertinent regulations, and by reason thereof his military earnings were paid directly from federal funds. We should add that in his military ...