Murphey v. United States

• Citation: 179 F.2d 743
• Decision Date: 25 January 1950
• Docket Number: No. 12188.,12188.
• Parties: MURPHEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F.2d 743 (1950)

MURPHEY et al. v. UNITED STATES.

No. 12188.

United States Court of Appeals Ninth Circuit.

January 25, 1950.

Francis E. Harrington, Portland, Ore., William B. Wetherall, San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., San Francisco, Cal., Harlan M. Thompson, Asst. U. S. Atty., Sacramento, Cal., for appellee.

Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from a judgment in a suit under the Federal Tort Claims Act denying recovery for the killing on July 12, 1945, of Huldah Murphey, the wife of one appellant and the mother of the three other appellants, by the claimed negligence of a staff sergeant, Paul W. Brander, of the United States Army Air Corps in driving an army truck.

The pertinent provisions of the Federal Tort Claims Act are: "* * * the district court * * * shall have * * * jurisdiction to * * * render judgment * * * against the United States * * * on account of personal injury or death caused by the negligent 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 * * * in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 931(a).¹

"(b) `Employee of the Government' includes officers or employees of any Federal agency, members of the military or naval forces of the United States. * * *

"(c) `Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty." 28 U.S.C. § 941 (1946 Edition).²

It is not questioned that the negligence claimed, if proved, would make the sergeant liable in California where the death occurred. The questions before us are, Was there such negligence and, if so, was the sergeant then acting within the scope of his employment?

The entire evidence is in two depositions of witnesses taken by the United States and hence warrants our own consideration of its probative value, with due respect to the findings of the court below. Equitable Life Assurance Soc. v. Irelan, 9 Cir., 1941, 123 F.2d 462, 464; Smith v. Royal Insurance Co., 9 Cir., 1942, 125 F. 2d 222, 224, certiorari denied 316 U.S. 695, 62 S.Ct. 1291, 86 L.Ed. 1765; Stork Restaurant, Inc., v. Sahati, 9 Cir., 1948, 166 F.2d 348.

Sergeant Brander was one of about twenty air corps soldiers encamped about three miles from the town of Klamath in the northern part of the state of California. In order to keep up the morale of these encamped men, a truck was provided for nightly visits to Klamath for their "entertainment, movies, etc."

On the night of Mrs. Murphey's death there was an Indian ceremonial, called a Shaker meeting, in a barn which Brander testified, in the government's deposition, was "in the town of Klamath." We accept this testimony of this government witness and consider the statement of Lieutenant Simon's deposition that the meeting was about "two or three blocks" from the town of Klamath as meaning from the center of town, he having testified that his camp was three miles and "two or three blocks" from the "center" of the town. Leaving camp about 9 o'clock in the evening, Brander drove into the town. He parked the truck at some unnamed place. With another sergeant, not produced by the government, he visited a saloon and then started in the truck for the entertainment of the Indian ceremonial in the barn in the town. On the way they met two ladies, friends of the other sergeant, who entered the car to go to the Shaker meeting.

The street on which they were driving led to a bridge beyond which, at a distance of about fifty yards, was the barn in which the Indian ceremonial had been conducted. The bridge was ten feet wide. It had no guard rails. There were two lines of planks for automobile wheels so placed that the truck would travel in the bridge's center. The truck was 6 feet 2 inches wide, thus leaving a clearance on each side of less than two feet to the unguarded sides of the bridge.

As the truck approached the bridge, Brander saw several people entering the bridge. Instead of waiting until they had passed and without dimming his lights, he drove onto the two lines of planking. After traveling some distance, he turned to the right off the planking and drove by the approaching people and on to the place of the ceremonial. Mrs. Murphey was in the group of people crossing the unguarded bridge and fell off and was killed by the fall.

We think Sergeant Brander was negligent in crossing the bridge with his headlights shining in the eyes of persons seeing less than two feet clearance on each side of the truck, and that Mrs. Murphey fell off the bridge in attempting to avoid the negligently driven car.

The district court found that Mrs. Murphey was forced off the bridge by the negligence of Sergeant Brander, but found that Brander "was not acting in the line of duty and was not acting within the scope of his office or employment with the United States of America," and that "The said members of the said Army Air Corp were authorized and directed to park the said vehicle to the side of a building in the said town where the said vehicle was required to remain until the evening's entertainment was over, at which time it was to be used to reconvey the men to the said radar station. Special permission was required to use the vehicle for the pleasure of the men to go to any place other than Klamath, and that neither the said Paul W. Brander nor any other member of said Army Air Corp, was authorized to operate the motor vehicle for his or their personal uses, or for any other uses, than that hereinbefore set forth." (Emphasis supplied.)

Apparently the district court thought that the Indian ceremonial was in "a place other than Klamath" but, as seen, the deposition taken by the government places the barn "in the town of Klamath" as we have found. When the negligence occurred the truck was being driven in the town and was to be parked at the barn, a building in the town.

It is not questioned that it was within Sergeant Brander's line of duty to seek recreation in the town of Klamath. He was authorized by his commanding officer to drive the truck for "pleasure" under "instruction." That officer testified Brander had authority to drive it that night to Klamath for the purpose of transporting "the rest of the boys stationed there into town for entertainment, movies, etc." He also testified that it was "supposed" that the "truck would be parked alongside a unnamed building in the town and left there until it was ready to come back," and that Brander was not "free" to use it during the evening.

On the other hand, there is testimony that permission to use the truck for recreation included going to places short distances outside Klamath, which was done with the knowledge of Brander's superior officers, and that no permission was needed to drive it to the Indian ceremonial.

The government brief concedes that Brander was acting within the scope of his employment in driving himself and other soldiers into the town of Klamath for their recreation, but contends that such recreational employment of the truck by the sergeant alone could not be a military employment. We do not agree. Improvement of morale of a single soldier is as much military in character as of several. The Judge Advocate General's opinions state that engaging in allowed athletic exercise is within a soldier's line of duty. Howland Opinion of the Attorney General, 1912 p. 686. See also Howland, 684.

In a analogous case of seamen held to the monotony of the ship, as these soldiers were to that of their mountain camp, this court in this same division of judges has held that, in seeking allowed recreation, the seaman was in the course of his employment when at a shallow swimming pool he was injured in a dive. Ellis v. American Hawaiian S. S. Co., 9 Cir., 165 F.2d 999, 1001. In that case we relied upon Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107, in which the court stated: "The assumption is hardly sound that the normal uses and purposes of shore leave are `exclusively personal' and have no relation to the vessel's business. Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. No master would take a crew to sea if he could not grant shore leave, and no crew would be taken if it could never obtain it. Even more for the seaman than for the landsman, therefore `the superfluous is the necessary * * * to make life livable' and to get work done. In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion."

In the Aguilar case the Supreme Court disapproves of our narrow interpretation of the seaman's employment in Meyer v. Dollar S. S. Lines, 9 Cir., 49 F.2d 1002, 1003.

This case concerns specifically allowed amusements, here "movies, etc." in the town of Klamath. We are not holding that in any case where the soldier is on a frolic of his own he can make the government liable simply because he there found entertainment.

We think the overriding purpose in Brander's employment in the use of the truck in the town of Klamath is the improvement of the morale of the soldiers in seeking "entertainment." The "movies, etc." certainly would include the Indian ceremonial. The government being liable as a private person in California, it is liable where the truck was in use for the broad purpose for which it was employed by Brander, even though he had instruction that he was not "free" to use it in a particular manner accomplishing that purpose.

This is the converse of the cases of United...