(250 U. S. 46)

(39 Sup.Ct.)

The Ball Engineering Company, a Missouri

BALL ENGINEERING CO. v. J. G. WHITE corporation, brought this action against J.

& CO.

(Argued March 13, 1919.

1919.) No, 227.

Decided May 19,

1. UNITED STATES 75 · PUBLIC WORKS CONTRACT-ABANDONMENT-RIGHT TO TAKE

OVER EQUIPMENT.

Provision of contract for public works that in case of its annulment the United States may, at a valuation to be fixed by the engineer, take over any equipment in use in the prosecution of the work, gives it no right to so take over the property of another engaged in the work.

2. UNITED STATES 69-TORT-IMPLICATION OF CONTRACT.

Implication of a contract that the United States would pay for B.'s implements, which must be the basis of its liability under the Fifth Amendment, is rebutted, and its liability, if any, is in tort, for which it has not consented to be sued, where on annulment of contract with H. for public works, and making of contract with W. for completion thereof, it at request of W., knowing of B.'s claim of ownership of implements on the grounds, but not conceding B.'s title, took them under a clause in its contract with H., and turned them over to W., crediting their value on its contract with H., and advising W. that the United States would not, under any circumstances, be held liable for the seizure.

3. UNITED STATES 74-CONTRACTOR WITH UNITED STATES-RIGHTS AND LIABILITIES.

W., with whom the United States contracted for completion of public works, after annulment of contract with H. for doing the work, having, with knowledge of the facts, procured the United States to take implements belonging to B. on the premises, and let it use them, is liable to B. therefor; the United States, while claiming the right to take them under the contract with H., crediting H. therewith, advising W. that the United States would not, under any circumstances, be held liable for the seizure.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.

Action by the Ball Engineering Company against J. G. White & Co. Judgment for defendant was affirmed by the Circuit Court of Appeals (241 Fed. 989, 154 C. C. A. 661), and plaintiff brings certiorari. Reversed.

Mr. William M. Parke, of New York City, and Messrs. Charles D. Lockwood and Homer S. Cummings, both of Stamford, Conn., for petitioner.

Messrs. Harry W. Reynolds, of Hartford, Conn., J. Kemp. Bartlett, of Baltimore, Md., and Lewis Sperry, of Hartford, Conn., for respondent.

G. White & Co., Incorporated, a Connecticut corporation, in the United States District Court for the District of Connecticut, fory damages for *the alleged conversion of a contractor's plant and equipment, which was prepared for use in prosecuting the work of constructing lock and dam No. 6, on the Trinity river, in the state of Texas, and all of which, including buildings, were located upon the site of the lock and dam at the time of the alleged conversion. The action was tried before a referee, designated under the Connecticut practice a committee. Two trials were had, the first resulting in a judgment in favor of the plaintiff for the value of That judgment was reversed by the Circuit the converted property. 212 Fed. 1009. Court of Appeals (J. G. White & Co. v. Ball Engineering Co., 223 Fed. 618, 139 C. C. A. 286), and a new trial ordered which took place before the same committee, and upon fact, in order to conform to the decision of the same evidence and the same findings of the Circuit Court of Appeals, judgment was rendered in favor of the defendant, and this was affirmed by the Circuit Court of Appeals on the authority of its prior decision. 241 Fed. 989, 154 C. C. A. 661. The case is here upon writ of certiorari.

The United States filed its brief amicus curiæ, contending that the decision of the Circuit Court of Appeals to the effect that the United States is liable under the Tucker Act (Act March 3, 1887, c. 359, 24 Stat. 505) when property of a third person is taken by one of its agents, under the circumstances disclosed, was erroneous.

The material facts are:

On July 10, 1906, the United States entered into a contract with the Hubbard Building & Realty Company to construct lock and dam No. 6 on the Trinity river, Texas.

A partnership composed of George A. Carden and P. D. C. Ball, known as the BallCarden Company, in the year 1908 placed a considerable amount of property, consisting of materials, machinery and tools, on the site of the lock and dam No. 6, and used them in constructing the lock and dam until the month of May, 1909.

This partnership was dissolved in April or May, 1909, *and discontinued the work theretofore carried on by it in the construction of the lock and dam. Carden transferred all his interest to Ball, who, under the name of the Ball Engineering Company, continued the work until on or about September 8, 1909.

It does not appear under what circumstances the Ball-Carden Company or Ball operating as the Ball Engineering Company

*Mr. Justice DAY delivered the opinion of undertook the performance of the work. the Court.

On September 9, 1909, work upon said lock

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The government would not allow the Ballsponsible for the seizure of the property, and Company to take possession of any of the property used in the construction of the lock and dam. This property the United States leased to the defendant, who used the same in completing the work, and thereafter returned all of it to the government, except, of course, such material as had been used in construction.

(39 Sup.Ct.)

and sell the property under the circumstances shown and which after the breach of condition vested the right of possession and the right to convert the property in the mortgagee."

stances giving rise to an implied contract to pay the Ball Engineering Company for it. This ruling was made upon the authority of United States v. Buffalo Pitts Co., 193 Fed. 905, 114 C. C. A. 119, affirmed 234 U. S. 228, It was further pointed out that the govern34 Sup. Ct. 840, 58 L. Ed. 1290. In that ment had authority under an act of Congress case a suit was brought under the Tucker to acquire any property necessary for the Act by the Buffalo Pitts Company against the purpose stated, and, if need be, to appropriate United States to recover for the value of the it. We held that the facts found brought the use of a certain engine for which, it was case within the principles decided in former alleged, the United States was under an cases and made the United States liable, not implied contract to pay. The findings of for a tortious act, but upon implied contract. fact showed that the Buffalo Pitts Company The subject was again reviewed by this sold a traction engine to the Taylor-Moore court in a case decided at this term, Templer Construction Company, and took a chattel v. United States, 248 U. S. *121, 39 Sup. Ct. mortgage to secure the payment of the pur-56, 63 L. Ed. 162, in which a suit was brought chase money. The mortgage was duly re- to recover the value of submerged lands in corded, and no part of the purchase money the Chicago river appropriated by the govwas paid. The engine was put into service ernment without the owner's consent. Forby the Taylor-Moore Company upon a rec- mer decisions of this court were reviewed, and lamation project undertaken by the Interior we said: Department, the work being prosecuted under a contract between the United States and the Taylor-Moore Construction Company. The Construction Company defaulted in its work, and assigned all of its interest in the contract to the United States, and it took possession of all material, supplies and equipment belonging to the Construction Company, including the engine in question. The Buffalo Pitts Company made demand upon the district engineer of the reclamation service for the possession of the engine and appurtenances. But the demand was refused, and the engine retained for use in the government work. The Buffalo Pitts Company notified the representative of the United States of the execution and filing of its mortgage, and claimed the property. It was expressly found that the government had at all times known of the existence of the mortgage, and did not dispute the validity thereof, but represented to the Buffalo Pitts Company that it was using and would continue to use the engine in its work, that any legal proceedings to recover possession would be resisted, and that if the property were left in the government's possession its attorney would recommend payment therefor. It was further found that the Buffalo Pitts Company relied upon these facts, and consented to the gov-pany. The government took this action upon ernment retaining possession of its property -in the expectation of receiving compensation from it therefor. The claim was made that the United States was not liable for tortious acts. This court reviewed former cases, and said:

"In the present case, as we have said, there is nothing to show that the government expected to use the engine and appurtenances without compensation. It did not dispute the mortgage, and the findings of fact clearly show that if the government had the right to take the property, notwithstanding the mortgage interest which the plaintiff had in it, it made no claim of right to take and use it without compensation as against the prior outstanding mortgage, which distinctly reserved the right to take

"If the plaintiff can recover, it must be upon an implied contract. For, under the Tucker Act, the consent of the United States to be sued is (so far as here material) limited to claims founded 'upon any contract, express or implied'; and a remedy for claims sounding in tort is U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519. expressly denied. Bigby v. United States, 188 Hijo v. United States, 194 U. S. 315, 323, 24 Sup. Ct. 727, 48 L. Ed. 994. As stated in United States v. Lynah, 188 U. S. 445, 462, 465, 23 Sup. Ct. 349, 47 L. Ed. 539: The law will imply a promise to make the required compensation, where property to which the government asserts no title is taken, pursuant to an act of Congress, as private property to be applied for public uses'; or, in other words: 'Whenever in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor.' But in the case at bar, both the pleadings and the facts found preclude the implication of a promise to pay. For the property applied to the public use is not and was not conceded to be in the plaintiff."

[3] In the case under consideration the United States did not concede title in the Ball Engineering Company, but took the property knowing of the claim of that company to its ownership, and credited its value upon the government contract with the Hubbard Com

request of the White Company, and advised that it would not, under any circumstances, be held liable for the seizure of the property. Under these circumstances, the implication of a contract that the United States would pay, which must be the basis of its liability under the Fifth Amendment, is clearly rebutted. The liability of the government, if any, is in tort, for which it has not consented to be sued. As the findings show that *the White Company, with knowledge of the facts, procured and used the property of the Ball Company, it ought to have been held liable to that company. It follows that the judgment of the Circuit Court of Appeals must be

Reversed.

(250 U. S. 101)

the car, engaged in cooking a meal for the PHILADELPHIA, B. & W. R. CO. v. SMITH. | bridge carpenters and himself, the engineer

(Argued April 15, 1919. Decided May 19,

1919.) No. 472.

COMMERCE 27(5)—EMPLOYERS' LIABILITY—
ENGAGED IN "INTERSTATE COMMERCE."

Cook in a camp car, on siding near railroad bridge being repaired, who was employed to assist, and was assisting, bridge carpenters by keeping their bed and board close to their place of work, was employed, as they were, in "interstate commerce," within Employers' Liability Act April 22, 1908 (Comp. St. §§ 8657-8665), as amended by Act April 5, 1910.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

On Writ of Certiorari to the Court of Appeals of the State of Maryland.

Action by Alfred H. Smith against the Philadelphia, Baltimore & Washington Railroad Company. Judgment for plaintiff was affirmed by Court of Appeals of Maryland (132 Md. 345, 103 Atl. 945), and defendant brings certiorari. Affirmed.

Messrs. Frederic D. McKenney and John Spalding Flannery, both of Washington, D. C., for petitioner.

of one of defendant's trains, without warning, ran the engine upon the side track and against a car to which the camp car was coupled with such force that plaintiff received injuries, to recover for which his action was brought.

firmed by the Maryland Court of Appeals A judgment in plaintiff's favor was af(132 Md. 345, 103 Atl. 945), and the case comes here on a writ of certiorari.

The only question we have to consider is whether plaintiff at the time he was injured was engaged in interstate commerce within the meaning of the statute. Petitioner, citing Illinois Central R. R. v. Behrens, 233 U. S. 473, 478, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, and Erie R. R. Co. v. L. Ed. 319, as conclusive to the effect that the Welsh, 242 U. S. 303, 306, 37 Sup. Ct. 116, 61 true test is the nature of the work being done by the employé at the time of the injury, and that what he had been doing before and expected to do afterwards is of no consequence, argues that since plaintiff at the time of the injury and for some weeks prior thereto was and had been working as mess cook and camp cleaner or attendant, for a gang of bridge carpenters who were quartered "for their own convenience" *in a

Mr. T. Alan Goldsborough, of Denton, Md., camp car belonging to petitioner, which was for respondent.

not being moved in interstate commerce, but was located and standing on a switch track

Mr. Justice PITNEY delivered the opinion in the neighborhood of the bridge upon of the Court.

Respondent brought his action in a state court of Maryland under the provisions of the federal Employers' Liability Act of April 22, 1908, as amended April 5, 1910 (35 Stat. 65, c. 149 [Comp. St. §§ 8657-8665]; 36 Stat. 291, c. 143), to recover damages for personal injuries sustained by him upon one of petitioner's lines of railroad in the state of Maryland over which petitioner was engaged in transporting interstate as well as intrastate commerce.

which the carpenters then were and for some weeks prior thereto had been and for some time afterwards were working; and since plaintiff at the moment of the injury was engaged in cooking food which was the property of himself and the carpenters, he was not at the time engaged in interstate commerce.

As thus stated, the relation of plaintiff's work to the interstate commerce of his employer would seem to be rather remote. But upon a closer examination of the facts Plaintiff was employed by defendant in the contrary will appear. Taking it to be connection with a gang of bridge carpenters, settled by the decision of this court in who were employed by defendant in the re- Pedersen v. Delaware, Lack. & West. R. R. pair of the bridges and bridge abutments Co., 229 U. S. 146, 152, 33 Sup. Ct. 648, 57 L. upon said line of railway. The gang, in- Ed. 1125, Ann. Cas. 1914C, 153, that the recluding plaintiff, worked over the entire line, pair of bridges in use as instrumentalities and were moved from point to point as the of interstate commerce is so closely related repair work required in what was called a to such commerce as to be in practice and "camp car," furnished and moved by de- in legal contemplation a part of it, it of fendant, in which they ate, slept, and lived. course is evident that the work of the bridge Plaintiff's principal duties were to take care carpenters in the present case was so closely of this car, keep it clean, attend to the related to defendant's interstate commerce beds, and prepare and cook the meals for as to be in effect a part of it. The next queshimself and the other members of the gang. tion is, what was plaintiff's relation to the On December 23, 1915, the bridge carpenters work of the bridge carpenters? It may be were engaged in repairing a bridge abutment freely conceded that if he had been acting on defendant's line near Easton, Maryland, as cook and camp cleaner or attendant mereand the camp car was on defendant's side ly for the personal convenience of the bridge track at Easton; and while plaintiff was in carpenters, and without regard to the conFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes