Chapin v. United States
Decision Date | 17 October 1958 |
Docket Number | No. 15511.,15511. |
Parties | Theodore J. CHAPIN and Adam Sydlik, Appellants, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Greenbaum, Baker & Ancel, Los Angeles, Cal., Thomas Griffin, Long Beach, Cal., Richard A. Zabel, Los Angeles, Cal., for appellants.
Laughlin E. Waters, U. S. Atty., Max F. Deutz, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before STEPHENS, Chief Judge, and BARNES, Circuit Judge.
This is an appeal from a summary judgment in two consolidated actions brought against the United States in the District Court for the Southern District of California pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b).1 The parties stipulated the facts concerning the issue of scope of employment, and the government obtained a summary judgment based thereon. This appeal followed.2
On April 4, 1956 one Herman H. Frehe, a private first class in the United States Army, was en route from Norton Air Force Base, California, to Ft. Hood, Texas, traveling in his own automobile, under competent orders transferring him to Ft. Hood on a permanent change of station. While so engaged Pfc. Frehe became involved in an accident, in California, with an automobile driven by appellant Sydlik in which appellant Chapin was a passenger. Frehe's orders directed him to proceed on or about April 4, 1956; authorized travel by private automobile, stating that such "travel directed is necessary in the military service;" provided for four days delay en route; and directed him to report for duty at Ft. Hood April 12, 1956. On these facts the District Court determined that at the time of the accident Frehe was not acting "within the scope of his * * * employment" and therefore there was no liability upon the part of the United States for his conduct. With the case in this posture there has been no trial on the issue of negligence, the court below having determined by summary judgment that it was without jurisdiction to grant relief against the United States.
Appellants complain of two errors: First, that it was improper to grant the motion for summary judgment because there exists a serious dispute over a material fact; second, that the court erred in determining that under the applicable California law Frehe was not acting within the scope of his employment at the time of the accident.
We are of the opinion that the District Court was correct in granting the government's motion for summary judgment. The disputed "fact" is whether Frehe was acting within the scope of his employment at the time the accident occurred. There may be situations involving deviation from or abandonment of an employer's business from which varying inferences may be drawn; there it is properly left to the trier of fact to determine whether the employee was or was not acting within the scope of his employment.3 But here there are no inferences to be drawn. There is an agreed set of facts upon which the court below could rightly conclude as a matter of law the issue of scope of employment.
The issue before this Court is, therefore, whether a member of the armed services of the United States is within the scope of his employment, under the applicable California law, when traveling by private automobile on a permanent change of station pursuant to competent orders authorizing travel in this manner and providing reimbursement of expenses incurred in the course of such travel.
We are controlled by the California law and the issue squarely presented is whether her courts would hold that Frehe was acting within the scope of his employment at the time of the accident. Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761, vacating Williams v. United States, 9 Cir., 1954, 215 F.2d 800.
The common law doctrine of respondeat superior has been made a part of the statutory law of California. Cal. Civ.Code § 2338.4 Her courts have developed numerous tests, applicable in varying situations, designed to provide guides to determine whether an employee's conduct falls within the ambit of section 2338. They are accurately stated in 32 Cal.Jur.2d, Master & Servant § 117:
Emphasis added.
But no single relevant factor is necessarily controlling. Loper v. Morrison, 1944, 23 Cal.2d 600, 605, 145 P.2d 1, 3.
The general rules just stated are derived from the many hundreds of California decisions which have considered the problem of scope of employment — a status or relationship easily labeled but exceedingly difficult of definition and analysis. In order to apply these rules correctly, it is essential that the factual contexts out of which they have arisen be considered. And in this regard we are of the opinion that the decisions involving employer liability to third persons for the negligent conduct of an employee engaged in a permanent change of place of employment — transfer cases — are the decisions most relevant and which must ultimately control the instant case.5
We must decide whether the peculiar status of a member of the armed services has any effect on the validity of the general rules already noted; or whether, for the purposes of respondeat superior, his status is to be considered similar to that of any private employee. We discern no basis in the statute waiving sovereign immunity nor in logic for making a distinction which would extend the scope and application of the doctrine of respondeat superior beyond that traditionally applied to private employers simply because the federal government in its military capacity finds itself in the role of employer.6
The exclusive jurisdiction conferred on the federal district courts by 28 U.S. C. § 1346 precludes the courts of any state from ever passing upon this exact phase of the problem of scope of employment, and thereby deciding what is essentially a matter of state policy.7 Other federal courts, in transfer cases, under the applicable state law, have faced this issue and have failed to draw a distinction based upon the unique relationship of a soldier to his employer.8 We are unable to find any significant differences in the California law of respondeat superior in this respect and therefore conclude that no such distinction is properly made in the instant case.
The question thus posed is whether an employer is liable for the negligent conduct of an employee during the period of travel from his former place of employment at which his duties have been terminated to a new place of employment at which his duties have not yet commenced. Certainly this situation is entirely unlike those in which the employee's duties require continual travel.9 It is also dissimilar to those cases involving the so-called "special errand" rule.10 We do not consider those cases helpful or controlling.11
The opinion then goes on to cite as "a case nearly in point" United States v. Sharpe, 4 Cir., 1951, 189 F.2d 239. Sharpe involved a soldier traveling under orders to report at a date certain, but without any...
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