Cooner v. United States, 7887.

• Decision Date: 01 March 1960
• Docket Number: No. 7887.,7887.
• Citation: 276 F.2d 220
• Parties: Joanne COONER, by her Guardian ad Litem, Harold E. Cooner, Sr.; James Cooner, by his Guardian ad Litem, Harold E. Cooner, Sr.; and Harold E. Cooner, Jr., by his Guardian ad Litem, Harold E. Cooner, Sr., and Harold E. Cooner, Sr., individually, and as Administrator of Estate of Vera Smoak Cooner, deceased, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

276 F.2d 220 (1960)

Joanne COONER, by her Guardian ad Litem, Harold E. Cooner, Sr.; James Cooner, by his Guardian ad Litem, Harold E. Cooner, Sr.; and Harold E. Cooner, Jr., by his Guardian ad Litem, Harold E. Cooner, Sr., and Harold E. Cooner, Sr., individually, and as Administrator of Estate of Vera Smoak Cooner, deceased, Appellants, v. UNITED STATES of America, Appellee.

No. 7887.

United States Court of Appeals Fourth Circuit.

Argued October 14, 1959.

Decided March 1, 1960.

Henry Hammer, Columbia, S. C. (Henry H. Edens, Columbia, S. C., and Kearse & Ness, Bamberg, S. C., on brief), for appellants.

Mark R. Joelson, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., N. Welch Morrisette, Jr., U. S. Atty., Columbia, S. C., and Morton Hollander, Atty., Dept. of Justice, Washington, D. C., on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

SOBELOFF, Chief Judge.

This is another in a long line of troublesome cases involving the problem whether service personnel whose negligent driving has injured others were acting within the scope of their employment.

The present action, under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 and 2674,¹ arises from an automobile accident which occurred in New York, when Major Ralph H. Miller, an Army officer, driving his own automobile, collided with an automobile driven by Mrs. Vera Smoak Cooner. Both Major Miller and Mrs. Cooner were killed, and three children of Mrs. Cooner, passengers in the automobile driven by her, were seriously injured, one of them sustaining permanent brain damage. The children, by their guardian, Harold E. Cooner, Sr., and Harold E. Cooner, Sr., for himself and as administrator of Mrs. Cooner's estate, brought this suit against the United States, alleging that Major Miller was acting negligently and within the scope of his employment, and that, therefore, his employer, the United States, was liable under the doctrine of respondeat superior.

The District Court for the Eastern District of South Carolina, where the suit was filed, granted a motion of the United States for summary judgment on the ground that Major Miller was not acting within the scope of his employment at the time of the accident and thus the United States was not liable under the Tort Claims Act. The facts being undisputed, the only legal issue is whether the Major was acting in the scope of his employment. The Government admits that if he is held to have been so acting, "as the investigation of the case now stands," it would be liable.

Major Miller was stationed at Ft. Leavenworth, Kansas, when, on March 15, 1957, he received travel orders issued by the Department of the Army directing him, upon completion of his course of instruction at Ft. Leavenworth, to proceed to Washington, D. C., for three days temporary duty, not later than July 10, 1957. He was given six days leave prior to reporting to Washington, and was instructed to proceed, after expiration of the three days temporary duty in Washington, to his new permanent duty station at Ottawa, Canada, where he was to report not later than July 15, 1957. On April 2, 1957, his orders were amended to provide for sixteen days leave prior to reporting in Washington for temporary duty, and to permit him to take his wife and children with him to his new duty post at Government expense. After using his sixteen days leave, Major Miller reported to his temporary duty station in Washington, where he spent three days as required. He then proceeded toward Ottawa, driving his privately owned automobile, and using a direct route. While passing through New York, en route to his new permanent duty station, the accident occurred.

In Major Miller's orders, and in the Army regulations therein referred to, it was provided that: (1) his travel was deemed necessary for his military service; (2) he was permitted to use whatever suitable mode of transportation he desired, including his own automobile; (3) he was to be reimbursed at the rate of six cents per mile if he used his automobile. It is also provided in the Uniform Code of Military Justice, 10 U.S. C.A. § 911, formerly 50 U.S.C.A. § 705, that a serviceman who operates a vehicle in a reckless or wanton manner is subject to disciplinary action.²

The appellants and the Government agree that, as the accident happened in New York, the law of that state controls in determining whether Miller was acting within the scope of his employment, and they are in further agreement that there is no decided New York case exactly in point. However, both vigorously maintain that the principles announced in the New York decisions involving the doctrine of respondeat superior support their respective positions, and both rely on cases decided by federal courts throughout the country, presenting fact situations more or less similar to the present case. The Government asserts that the Army did not direct Miller to use any particular mode of transportation and was indifferent as to the means he chose; the Army did not control him in his use of his own automobile; and his normal duties as an Army officer did not involve driving vehicles. The appellants, on the other hand, rely on such factors as that Major Miller was making the trip solely because his employer directed him to do so; he had no personal interest in travelling from Washington to Ottawa; he was authorized to use his automobile; he was driving on a direct route with no business or frolic of his own involved; and he was reimbursed for his travelling expenses.

Before examining the New York cases, none of which is precisely the same factually, we think it will be useful to review some of the federal decisions in this area of the law. It must be acknowledged that the pattern they reveal is somewhat confused. Although Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761, requires the federal courts, in suits under the Federal Tort Claims Act, to apply the law of agency of the place of the accident to determine whether a Government employee is acting in the scope of his employment, the Act itself requires all such suits to be filed in a federal court.³ The result is that, while state law is to be applied, there can never be state cases exactly in point as to the factual situations involved. Thus, while in cases arising since Williams the courts have attempted to find light in decisions of the state courts where the accidents happened, they have also felt it necessary to look to general agency principles.

Before Williams v. United States, supra, there was some doubt concerning the law to be applied in determining whether a federal employee was acting in the scope of his employment, with some cases, including those in this circuit,⁴ holding that such a determination was to be made according to federal law, and the courts were not bound by decisions of the state where the accident happened. However, as previously pointed out, the Williams case made it clear that the question whether an employee was acting in the scope of his employment was to be resolved with reference to the agency law of the place of the accident. The four cases involving military personnel driving their own automobiles which have arisen in this circuit, three of which the Government here relies upon, were all decided before Williams.

The first, United States v. Eleazer, 4 Cir., 1949, 177 F.2d 914, involved a Marine lieutenant who was ordered to report to a new duty station, but was given about two weeks leave before being required to report. While on leave, driving his own automobile towards his home in Atlanta, Georgia, he crashed into another car in North Carolina. This court refused to hold the Government liable under the Federal Tort Claims Act. Although the decision there was clearly correct under the circumstances, as the lieutenant was on leave and travelling to his home for his own purposes, it is true that there is language in the opinion emphasizing the fact that he was driving his own vehicle and that the Government had no control over the manner in which he was driving.⁵ Such language, however, must be considered in its factual context. The present case does not involve a soldier on leave but, rather, one travelling directly from one duty station to another, under specific directions to do so, and using an authorized mode of transportation. He had no personal motive in driving to Canada but was ordered to make the trip, and was allowed only sufficient time to drive to Ottawa and no free time for any side trips.

United States v. Sharpe, 4 Cir., 1951, 189 F.2d 239, presented a similar situation. A soldier who had been ordered to move from one Army camp to another obtained permission to drive his own automobile rather than travel by a truck convoy which was transporting other soldiers who had likewise been ordered to make the trip. He was given a pass, was not required to report for duty at the new camp until the expiration of the pass, and his time was his own. He received no allowances for travelling expenses. The soldier was operating his car under these circumstances when a collision occurred in South Carolina, and the court held the Government not liable, observing that the case was indistinguishable from Eleazer. Both Sharpe and Eleazer are heavily relied upon by the Government, but neither, on its facts, requires us to hold in this case that Major Miller was not acting in the scope of his employment. A serviceman on leave or on pass cannot, normally, be said to be acting within the scope of his employment. He is in a similar position to a private employee during the latter's non-work hours or vacation. His activities at such times consist of his personal affairs, not usually connected with the business of the employer. Moreover, the Eleazer and Sharpe cases, (like the other two cases involving this problem decided by district courts in this circuit), were...