United States v. Johnson

Citation181 F.2d 577
Decision Date07 April 1950
Docket NumberNo. 12238.,12238.
PartiesUNITED STATES v. JOHNSON.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Frank J. Hennessy, U. S. Attorney, Rudolph Scholz, Asst. U. S. Attorney, San Francisco, Cal., for appellant.

Sheridan Downey, Jr., Oakland, Cal., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

On December 22, 1949, Johnson, a citizen and resident of Contra Costa County, California, a civilian employee of the Navy upon the Island of Guam, was injured by the overturning of a vehicle in which he was riding. At the time vehicle was being driven by one Moore, a Navy chief pharmacist's mate. Johnson brought this action under the Federal Tort Claims Act, 28 U. S.C.A. § 1346(b).1 He recovered judgment, and the United States, upon this appeal, asserts error in the court's finding (1), that Moore, the driver, was acting "in line of duty", and (2), that the injury resulted from carelessness and negligence for which the United States was responsible.

The facts relating to Moore's duties and employment and the circumstances surrounding the accident which caused the injuries were not developed with much detail in the trial court. The following statements were all admitted for the record:

1. "On December 22, 1946 one John F. Moore was an enlisted man, to-wit, a Chief Pharmacist's Mate in the United States Navy, and was stationed on the Island of Guam, attached to Fifth Service Depot, on duty at Eighth Ammunition Company."

2. "On the afternoon of December 22, 1946 John F. Moore was required by his duties to proceed to the Dispensary at the Fifth Service Depot to turn in his daily report. Before doing so he met the plaintiff, Elmer R. Johnson, and asked plaintiff if he would like to come with him. He told the plaintiff that he would take plaintiff to plaintiff's quarters at the Navy Air Base, Agana, and the plaintiff agreed to accompany Mr. Moore."

3. "After the conversation referred to in Statement No. 2 plaintiff Elmer R. Johnson and John F. Moore went into the Club rooms at the Ground Ammunition Depot where they met Seaman 1st Cl. Raymond J. Beaulieu, Seaman 1st Cl. Homer L. Taylor, and Seaman 2nd Cl. William L. Barger. All engaged in conversation and several of the group consumed some beer."

4. "During the conversation referred to in Statement No. 3, mention was made of the fact that plaintiff was a barber and the sailors asked plaintiff if he would cut their hair. Plaintiff said that he would if they would come to his quarters at the Naval Air Base."

5. "Plaintiff and the seamen asked John F. Moore if he would take them to plaintiff's quarters so that plaintiff might cut the seamen's hair. Mr. Moore agreed to do so."

6. "Thereafter, on said December 22, 1946, plaintiff John F. Moore and the three seamen referred to in Statement No. 3 proceeded in a reconverted ambulance belonging to the United States, with Moore driving the same, from the Ground Ammunition Depot to plaintiff's quarters at the Naval Air Base, where they alighted from the vehicle and the plaintiff took the seamen to his quarters and cut their hair. Thereafter they all ate dinner." (The admission as to this sixth statement was subject to the correction that the parties mentioned did not eat dinner at the place where the hair was cut.)

7. "After eating dinner at the Naval Air Base, the seamen asked John F. Moore to take them back to their quarters at the Ground Ammunition Depot, which he agreed to do."

8. "While enroute to the Ground Ammunition Depot, Seaman 1st Cl. Homer L. Taylor asked John F. Moore to drive to the Island Command Brig in order that Taylor might collect some money from one of the sentries at the Brig. Moore then drove the vehicle, in which plaintiff and the three seamen were riding, to the Brig for this purpose."

9. "After stopping at the Island Command Brig, Moore and the others proceeded on their way to the Ground Ammunition Depot. Enroute the vehicle in which they were riding overturned."

10. "At the time the vehicle overturned, John F. Moore had not yet turned in his daily report at the Fifth Service Depot Dispensary."

It appears from the facts thus admitted and from other testimony, that Johnson was employed as a painter but was also a barber and supplemented his income by cutting hair and doing other barber work at a barber shop at the Navy Air Base where Johnson lived in Navy barracks. About a mile and a half from Johnson's quarters was the town of Agana. About the same distance from Johnson's quarters in the opposite direction was the Fifth Service Depot at which was located the Navy Dispensary. Moore, a Chief Pharmacist's Mate, was attached to the Fifth Service Depot and had duties to perform at the Dispensary.

The only evidence of what Moore was required to do on the date in question is furnished by the agreed statement, quoted above. This indicates that it was then his duty and a part of his course of employment to deliver his report to the Dispensary. For reasons hereafter noted it is proper to infer that in doing this he was authorized to drive the vehicle.

The agreed statement and the testimony of Johnson indicate that Moore went on a number of other errands before he got around to take his report to the Dispensary. Moore first offered to take Johnson to Johnson's quarters at the Air Base; they then met the sailors, had some beer, and arranged to go to Johnson's quarters so that he could cut the sailors' hair, and Moore took the parties there in the reconverted ambulance. Johnson testified that after the hair cutting, which took from two to three hours, the entire party were driven by Moore to Agana where they ate dinner. Moore then stated that he would have to proceed to turn in his reports and the parties started back toward the Ground Ammunition Depot and the Dispensary, intending to pass Johnson's quarters on the way. The evidence shows that on this trip Moore's purpose was to stop along the way at the guardhouse to permit one of the men to collect some money owed him by one of the guards, to drop Johnson at his quarters at the Air Base, to return the other sailors to the Ground Ammunition Depot, and to turn in his report.

As Moore then drove in the direction of the Dispensary he first stopped at the guardhouse and then drove onward in the same direction. It was at this point that the car started "shimmying". The vehicle had started down a long hill and when the front wheels began to shake the accident occurred and the car turned over with the result that Johnson was hurt.

There is no evidence whatever as to what caused the car to overturn. Johnson testified: "The car began to shimmy and shake the front wheels, and the accident occurred right then and there. I can't remember." It was stipulated that if Moore were present he would testify: "We had not gone very far when the truck started to slide. I tried to keep control, but could not. I do not remember what happened after that."

Johnson asserts that the facts bring the case within the rule of res ipsa loquitur. For the United States it is contended that insofar as the application of that doctrine may be predicated upon the operation of the vehicle being in the exclusive control of the defendant,2 the facts here negative that exclusive control for, it is said, it is shown that the driver was not then acting in the scope or course of his employment, but had for the time departed upon a frolic of his own.

For the purpose of determining whether the facts here required a finding such as thus urged by the United States we must inquire as to what was the law of Guam upon this subject. After the Island had been acquired by the United States under the terms of the treaty following the Spanish-American war, the President, on December 23, 1898, issued a proclamation placing the Island under the control of the Navy and directing the Secretary of Navy to take such steps as might be necessary to give it the necessary protection and government. By an executive order of the Naval Government of Guam, on December 28, 1933, codes of laws were promulgated for the Island. These included a civil code. The civil code thus adopted was copied from the Civil Code of California. It has since been in effect, except as its operation was suspended during the Japanese occupation of the Island during the late war. Its reestablishment was proclaimed by Admiral Nimitz as Military Governor on July 21, 1944, after the re-occupation of the Island by the Navy.

The rule of respondeat superior was made a part of the law of Guam by section 2338 of the Code of Guam thus promulgated. It is the same as section 2338 of the California Civil Code, and reads as follows: "§ 2338. Principal's responsibility for agent's negligence or omission. Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the...

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