258 F.2d 465 (9th Cir. 1958), 15511, Chapin v. United States

Docket Nº:15511.
Citation:258 F.2d 465
Party Name:Theodore J. CHAPIN and Adam Sydlik, Appellants, v. UNITED STATES of America, Appellee.
Case Date:June 30, 1958
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 465

258 F.2d 465 (9th Cir. 1958)

Theodore J. CHAPIN and Adam Sydlik, Appellants,

v.

UNITED STATES of America, Appellee.

No. 15511.

United States Court of Appeals, Ninth Circuit.

June 30, 1958

Rehearing Denied Oct. 17, 1958.

Page 466

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.

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

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California law Frehe was not acting within the scope of his employment at the time of the accident.

I. Summary Judgment

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.

II. Scope of Employment

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:

'The scope of employment depends on a consideration of what the servant was doing and of why, when, where, and how he was doing it. The factors to be considered include intent of the employee, the nature, time, and place of his conduct, his actual and implied authority, the work he was hired to do, incidental acts the employer should reasonably have expected would be done, and amount of freedom allowed the employee in performing his duties. * * * In the last analysis, each case must be determined on its own peculiar facts and circumstances, together with the character of the employment and the nature of the wrongful act.'

But no single relevant factor is necessarily controlling. 'The results reached in other decisions are helpful but not necessarily controlling. * * * In each case involving scope of employment all of the relevant circumstances must be considered and weighed in relation to one another.' 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

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are of the opinion that the decision 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

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We do not consider those cases helpful or controlling. 11

In our view the recent case of McVicar v. Union Oil Co., 1956, 138 Cal.App.2d 370, 292 P.2d 48, establishes the governing criteria by which to determine the scope of employment status of transferring employees. 12 In the McVicar case an employee of United Airlines was transferred from the United facilities at San Francisco to those at Spokane, Washington. En route he was involved in an automobile accident. The employee was paid at an hourly rate, therefore he was not being paid for the time spent traveling; additionally, he was traveling on his days off. However, he was at all times an employee of United and carried as such on their payroll records. He was not reimbursed for the expense of travel, nor did or could his employer specify any particular mode of transportation; however, there was evidence that the employee could have utilized his employer's transportation services without cost to himself. The First District Court of Appeal held that the employee was not...

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