HINCKS, Circuit Judge.
The plaintiff sued to recover for personal injuries, under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), sufferred in a building owned and maintained by the United States for the use of the United States Merchant Marine Academy. The defendant brought in, by third-party complaint, Lieutenant McGuire, the Ship's Service Officer of the Academy who was the officer in charge of the Ship's Service Store, which occupied part of said building, and an insurance carrier, Royal Indemnity Company (Royal), which had written liability insurance on the premises. After a trial without a jury, the district court judge gave judgment for the plaintiff against the defendant, and for the third-party defendants on the third-party complaint. From the judgments in favor of plaintiff and in favor of Royal, the United States appeals. The plaintiff also appeals on the ground that his award was inadequate. No appeal was taken from the judgment dismissing the third-party complaint against Lieutenant McGuire.
The plaintiff, who was employed by a news company, on the morning of January 5, 1952 was delivering newspapers to the Ship's Service Store of the Merchant Marine Academy at Kings Point, New York. Daily deliveries were made to an entrance of the store below ground level to which in common with other space occupied by the Academy, a twelve-step exterior uncovered stairway led. Alongside the stairway was a chute down which Grant ordinarily slid the bundles of newspapers but on the morning when the accident occurred it was raining and the surface of the chute was wet so that the bundles would not slide. Grant therefore carried two bundles of papers, one on his shoulder and the other in his hand, down the stairway which ordinarily was lighted by overhead lights. On this morning, the trial judge found, the lights were not turned on. When Grant had descended about nine steps, he mistakenly assumed he had reached the bottom; he stepped forward instead of down, fell and injured his right knee.
The Store was operated by Lieutenant McGuire, an officer of the United States Merchant Marine, under his duty assignment as Ship's Service Officer. It was located in a Government building the rest of which was used by the Academy. Its profits, after payment of salaries to employees, went into the Academy welfare fund. The trial judge
The insurance policy under which the United States claims coverage was issued on June 30, 1945 and was to run until cancelled by either party. It named as the insured the "Ship's Service Officer, United States Merchant Marine Academy." It had never been cancelled. The premium was to depend on the gross sales of the Store which were to be reported every quarter. Relevant provisions of the policy are set out in the margin.
After the trial, Judge Byers filed an opinion containing findings of fact and conclusions of law. 162 F.Supp. 689. He entered judgment for the plaintiff for $4,728.49 on his complaint against the United States and dismissed the third-party complaint against McGuire and the Royal Indemnity Company.
As to the plaintiff's appeal, the trial court's award of damages is based on findings of fact which can be disturbed only if clearly erroneous. Sanders v. Leech, 5 Cir., 158 F.2d 486. Cf. Kelcey v. Tankers Co., 2 Cir., 217 F.2d 541; Lukmanis v. United States, 2 Cir., 208 F.2d 260. Plainly, the findings below cannot be so characterized. Indeed, they are fully consonant with substantial evidence and in turn furnished a basis upon which the award was reasonably made.
The holding below which imposed liability upon the United States must also be upheld. The law of the state of New York governs here. Ira S. Bushey & Sons, Inc. v. United States,
Nor can we say that the judge below clearly erred in finding the plaintiff free from contributory negligence. McConville v. United States, 2 Cir., 197 F.2d 680, certiorari denied 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679. This is so even if, as the United States asserts, the burden of proof
On the issue posed by the third-party complaint of the United States against McGuire and Royal the court below correctly held that under the doctrine of United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898, the United States had no right of recovery over against McGuire. We must hold, however, that the court erred in thinking that the Gilman decision precluded its recovery against Royal. For by its third-party complaint against Royal the United States was not seeking indemnity from its employee, the Ship's Service Officer, McGuire, or from Royal, as the Ship's
To solve this problem of interpretation we turn, of course, to the policy. The first clue therein is in the express "Definition of `Insured.'"
This conclusion is further fortified by the fact that in the "Definition of `Insured'" members of the insured group are identified not by name but as incumbents of various offices. This shows it to have been clearly contemplated that during the life of the policy, which was to continue until cancelled, its protection was to attach to a succession of incumbents. The particular offices mentioned are ones which might be thought to carry superior supervisory responsibility for the operation of the store. And to these is added as an additional insured any "other superior administrative authority." In short, the language of the policy discloses a studied effort to include as additional insureds all those to whom the doctrine of respondeat superior could possibly apply. This, of course, would include the United States which owned and operated the Academy.
The foregoing provisions make it reasonably clear, we think, that the policy covered the business operations of the Store, and was to afford protection to all who in the future, during the life of the policy, should come to have legal responsibility for its business operations. Just as its protection was to attach to a newly appointed Ship's Service Officer or Academy Superintendent who never theretofore had been liable, so, we think, its protection was to attach, upon the enactment of the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., to the United States which theretofore could not have been held liable. The mere fact that in 1945 when the policy issued the United States could not be sued, does not import an intent that the United States should be excluded as an insured. For irrespective of its immunity from suit the United States may have deemed it in the public interest to make provision for the compensation of those injured on its premises. And that the parties recognized this interest and intended to give it effect is borne out by the Condition of the policy relating to immunity as a defense.
Thus the enactment of the Tort Claims Act, which terminated governmental immunity by legislation, added nothing to the risk covered by the policy under which by express contractual provision the insurer agreed to forego governmental immunity as a defense to a third-party claim. Consequently, from the immunity of the United States existing
For the foregoing reasons, the judgment for the plaintiff is affirmed; the judgment in favor of the third-party defendant Royal Indemnity Company is reversed.
"Division I Liability
"To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon the insured by law, or assumed by the insured under contract, including warranties of goods and products, for damages
"18. Immunity as Defense