Williams v. United States, 13707.

• Decision Date: 08 September 1954
• Docket Number: No. 13707.,13707.
• Citation: 215 F.2d 800
• Parties: Althea G. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

215 F.2d 800 (1954)

Althea G. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 13707.

United States Court of Appeals Ninth Circuit.

September 8, 1954.

Henry C. Clausen, Richard G. Burns, San Francisco, Cal., for appellants.

Warren E. Burger, Atty. Gen., Lester S. Jayson, Samuel D. Slade, Attys., Dept. of Justice, Washington, D. C., Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for appellee.

Before MATHEWS, BONE and CHAMBERS, Circuit Judges.

BONE, Circuit Judge.

This is an appeal from a judgment denying delief in an action under the Federal Tort Claims Act, herein "the Act." The decision of the lower court is reported in 105 F.Supp. 208.

At all times here pertinent appellant was a civilian employed as a teacher by the Army Air Force, and also as a secretary by a private construction firm operating on the Island of Guam. She was injured on the night of March 3, 1949, at or about 10:30 p.m. while sitting in a vehicle then parked on a "turnabout" place located on the end of what was called the Crystal Breakwater, this being an area on the Island reserved for "parking" purposes, and a place where cars were customarily parked.

At the time above mentioned an army vehicle then being driven by one Seabourn (a clerk in the Supply Department of the United States Army based on the Island) crashed his vehicle into the side of appellant's car, causing the physical injuries upon which this action was based. There was overwhelming evidence that Seabourn was drunk at the time.

Pertinent provisions of the Act, Title 28 U.S.C.A., read as follows:

§ 1346:

"(b) * * * the district courts * * * shall have * * * jurisdiction of civil actions on claims against the United States, for money damages * * * for * * * personal injury * * * caused by the negligent * * * act * * * of any employee of the Government while acting within the scope of his office or employment, under circumstances where * * * a private person, would be liable to the claimant in accordance with the law of the place where the act * * * occurred." (Emphasis ours.)

§ 2671: "`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." (Emphasis ours.)

§ 2674: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

The Question Presented.

Whether the United States is liable, under the terms of the Act, above quoted, for the negligent acts of a soldier which occur when the soldier is seeking personal recreation during the period he is off duty and away from his army base on a pass.

Relevant and applicable provisions of the Civil Code of Guam and Army Regulations are set forth in the margin.¹

The Facts.

There was credible and competent evidence of a convincing character from which the trial court could have inferred and concluded that the facts which we here summarize were fully established as true.

Seabourn obtained an appropriate pass to leave the army base on and for the day of March 3, 1949. Accompanied by two other soldiers (Schmidt and Vincent) he spent the afternoon drinking beer. The three men returned to the base about 7 p.m. and while there, a Sergeant Stiles, a member of Seabourn's company, gave Seabourn a so-called "trip ticket" for a ¾ ton vehicle known as a "weapons carrier." This ticket had been made out about 8 a.m. that morning to a driver named Cabera,^* a soldier who also worked with Seabourn, and it discloses that the vehicle had been requested by a Lt. W. R. Werb, and use of the vehicle was therein authorized for "Official Business." Listed on the ticket are the various official points to which the weapons carrier was driven that day.² Neither Seabourn's nor Stiles' name appears on the ticket, nor was Seabourn's use of the vehicle in any way indicated thereon.

By means of this "ticket", Seabourn secured possession of the vehicle and in company with the two men named drove to the Enlisted Men's Club on the Island where they drank more beer as well as some champagne, and then they decided to "go for a ride". Thereafter, and prior to the accident here involved, Seabourn let his companions out of the vehicle and drove off alone. These companions later swore that Seabourn was then "definitely drunk," and Seabourn himself swore that he remembered nothing further until the next morning when he awoke beside a road.

Seabourn's use of the vehicle while thus "off duty" and in quest of entertainment, was not a use in furtherance of any prescribed or indicated military duty. The vehicle was not being used in Seabourn's "off duty" period to serve any prescribed or noted military purpose or interest of the government, nor was Seabourn's use motivated by such a purpose. His superior military authorities had no knowledge of, or supervision over, the use of the vehicle while it was in Seabourn's possession, nor any control over Seabourn after he had secured it from Stiles by using the Cabera ticket which had been previously issued by Lt. Werb (see footnote 2). Nor was any military order issued by a superior officer directing or authorizing Seabourn to use the vehicle for any purpose, military or otherwise (including "recreation"), or for the execution of any military order.

The facts as we have outlined above are fully reflected in the record before us.

On the material issues in this case the lower court found that the accident occurred on the date, at the place and under the conditions we have noted above; that Seabourn was a corporal in the United States Army stationed on the Island of Guam and assigned to Headquarters Base Service; that he was off duty and away from the base on a pass at the time; that he and two associates spent the afternoon of the day in question drinking beer and the three men returned to the army base about 7 p.m. of the day in question where Seabourn obtained unauthorized possession of the vehicle he used, after which Seabourn, accompanied by his two companions, Vincent and Schmidt, drove the vehicle to the Enlisted Men's Club on the Island where they indulged in champagne as well as beer, after which they decided "to take a ride"; that some time prior to the accident Seabourn let both of these companions out of the vehicle, and that is all Seabourn remembered until the morning following the accident, when he awoke beside the road; that the bodily injuries of plaintiff resulted from the accident which was entirely due to the negligence of Seabourn; that Seabourn's use of the weapons carrier was not for the purpose of transporting United States Army personnel under the direction of his commanding officer, nor for any purpose authorized by army regulations; that Seabourn was on a frolic of his own and used the vehicle as he might use his private automobile in seeking personal entertainment.

On these findings the court entered conclusions of law setting forth that Seabourn, an employee of the defendant, was not acting within the course and scope of his employment and that plaintiff is not entitled to recover from the United States, and the respective parties should each bear their own costs.

Judgment was thereupon entered in favor of the Government.

Specification of Errors.

It is sufficient to say that appellant's specifications of error not only challenge all of the findings and conclusions of the lower court which are material to the issues posed on this appeal, but also the failure of the lower court to make certain proposed findings and conclusions tendered by appellant which reflect her theory of federal liability for Seabourn's tort.

Appellant's Position.

We summarize what appears to us to be the substance of appellant's contentions on this appeal:

She urges that despite the court's findings, the fact remains that Seabourn was seeking "entertainment"; that such a "diversion" is essential to a soldier's "morale," and as a (legal) consequence, his late joy ride in the army vehicle was within his "scope of employment." Relying on this theory, she sees a perfect analogy between the facts of the instant case and those discussed in our opinion in Murphey v. United States, 9 Cir., 179 F.2d 743, 745, and she also assures us that the case before us narrows to a consideration of only two points which are determinative here, these being the facts, and this Court's views as expressed by the majority in the Murphey case.

Appellant frankly states that she is content to "rest her case" on the Murphey decision, and accompanies this concession with a lengthy discussion of the holding in that case.

We disagree with appellant's contention that our decision in Murphey v. United States, supra, when laid off against the facts revealed by the record before us, is dispositive of the vital and controlling issue in the instant case. We are fully persuaded that the Murphey case is clearly distinguishable on the facts. There we pointed out that Sergeant Brander drove an army truck to the town of Klamath under specific authorization of his commanding officer. He was authorized to take it into the town "for pleasure," under instructions that it might be used to carry some soldiers into the town "`for entertainment, movies, etc.'" The majority of this Court thought that the official permission thus granted was broad enough to include a visit to an Indian dance (certainly in itself a harmless diversion) being held only a short distance outside the town, this because Brander's "digression" to the place of the dance was with "knowledge of his superior officers". The basic assumption on our part was that attending the dance was within the concept of allowable "recreation" because it was for "`entertainment, movies, etc.'" Brander's commanding officer testified that "it was supposed that the truck would be...