JERTBERG, Circuit Judge.
This is an appeal from the judgment in favor of the appellee, United States of America, entered by the District Court, and from an order of the District Court denying the motion of the appellant, Buck Witt, for rehearing.
The appellant sought damages under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2674 et seq.,1 for damage to his property, certain mink, caused by the negligence of an employee of the United States flying an airplane over the appellant's mink ranch.
This Court has jurisdiction under Title 28 U.S.C.A. §§ 1291 and 1294.
The following agreed statement of facts appears in the pretrial order approved by counsel for the parties, and signed and entered by the District Judge:
"1. This action was brought under the Federal Tort Claims Act, 28 U.S.C. 1346(b).
"2. That plaintiff, Buck Witt, is a resident and inhabitant of the State of Oregon, and has, at all times relevant herein, been and is now engaged in the commercial raising and marketing of mink pelts; that his mink ranch is located approximately four miles south of Canby, Oregon.
"3. That 1/Lt. Richard Ballweber was, on and prior to May 8, 1961, a member of and a commissioned officer and pilot on active duty in the United States Army, one of the departments of defendant, assigned to duty in Headquarters First Reconnaissance Squadron, 16th SKYCAV, Second U. S. Army Missle Command, Fort Carson, Colorado.
"4. That during the afternoon of May 8, 1961, one of the aircraft owned and maintained by the Department of the Army, to-wit: A U1-A de Haviland Otter, bearing aircraft number 57-6133, made certain flights under the control and command of the said 1/Lt. Richard Ballweber in the vicinity of a sod airstrip owned and operated by Jack Lenhardt, said flights being to the east and north of said airstrip. That plaintiff\'s ranch is located approximately one mile northeast of said airstrip.
"5. That on May 5, 1961, the said 1/Lt. Ballweber was authorized and directed by his command at Fort Carson to fly said U1-A aircraft from Fort Carson to the United States Army Installation at Yakima, Washington, to deliver certain cargo to said Installation and to return to Fort Carson on or about May 8, 1961. That 2/Lt. Walter F. Wood and SFC J.G. Kuhn, personnel attached to the same Squadron as Lt. Ballweber, were ordered and directed to accompany Lt. Ballweber in aircraft No. 57-6133 from Fort Carson to Yakima, Washington and return on May 5 thru 8, 1961."
From our examination of the transcript of testimony, it is our view that the following findings of fact made by the District Court relevant to the issues before us are supported by substantial evidence:
"2. On May 8, 1961, one Ballweber was a 1st Lieutenant, a commissioned officer and pilot on active duty in the United States Army and assigned to duty at Fort Carson, Colorado.
"3. On May 5, 1961, a flight order was issued by the Commander of the Second U.S. Army Missile Command at Fort Carson, Colorado, directing Ballweber and one Sgt. Kuhn to fly an airplane from Fort Carson, Colorado to Yakima, Washington for the purpose of delivering certain cargo in support of a mission at Yakima, Washington, and that upon the completion of the mission said crew members were directed to return to their said station in Colorado on or about May 8, 1961. One 2nd Lieutenant Wood was part of the authorized crew of said plane which was under the command and direction of Ballweber.
"4. On May 6, 1961, said crew followed said directive order and flew said plane to Walla Walla, where the personnel stayed overnight, and then continued to the accomplishment of their mission as contained in said order on May 6. After completion of said mission, said crew, under the command of Ballweber, did not return to their station in Colorado, but, on the other hand, flew said airplane in a southwesterly direction from Yakima for a distance of approximately 300 miles to the Oregon coast at Florence, a point which is approximately 80 miles due west of Eugene in said state. En route, said crew stopped at a remote, out-of-the-way airstrip known as Lenhardt airstrip approximately 4 miles south of Canby, Oregon, and approximately 180 miles southwest of Yakima, and there made arrangements whereby they could return from Florence and land on said airstrip that evening. That the said plane flight into Oregon had nothing whatsoever to do with the mission authorized by the flight order of the Commanding Officer in Colorado, but, on the other hand, was made primarily for the purpose of Ballweber visiting at his home, some three miles from said remote strip, and the said Kuhn visiting with his parents at their home in Florence, Oregon. Ballweber and Wood returned to said airstrip on the evening of the 7th, stayed overnight at the Ballweber home, and on the following morning made flights to other cities in that area and during the course of the day made many `touch and go\' flights on said airstrip, some of these flights being training flights for Wood and others being for the entertainment of non-military personnel.
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"7. At said time and place said Ballweber and Wood were not acting in the line of duty of their employment with defendant and were acting outside the course and scope of their employment with the Department of the Army. The testimony of the witness Wood and other evidence in the case, including, but not limited to, the `cover-up\' of the actual whereabouts of Ballweber in his report of his activities, convinces me that the deviation made by the crew was entirely outside and beyond a proper construction of the authority granted by the order dated May 5, 1961 and that the crew of said aircraft were on a `lark\' of their own at the time of committing the negligent acts as aforesaid. Any flight plan which may have been in the minds of Ballweber and Wood was entirely unknown to their superiors and existed in their minds solely for the purpose of deviating from their orders and thus satisfy a natural desire to visit the homes of Ballweber and Kuhn.
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"9. The evidence in this case that Ballweber and Wood were not acting in the line of duty nor within the course or scope of their employment with the Department of the Army is substantial and more than adequate to overcome any inference which might be created by the fact that said persons were in the regular employment of defendant and that defendant owned the aircraft in question."
We have also reviewed the remarks of the District Judge made at the close of the arguments, which were incorporated by reference as part of the findings of fact. Included in such remarks are the following:
"Starting from the inception of this flight, he Lieutenant Ballweber was under what would appear to be special orders, which were service orders rather than training orders. He had a specific mission to perform, and that was to deliver this merchandise to the field area at Yakima and to return within a given period of time.
"True enough, the orders say that he is given discretion in carrying out his mission as to a variance in the flight, but that was in carrying out his service mission, as I view it, gentlemen, as distinguished from what the lieutenant would now attempt to say; that is, carrying out an associated mission, a training mission.
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"Now, there is an added feature in this case which was not involved in Sievers (Sievers v. United States D.C. 194 F.Supp. 608) or any of the other cases which have been raised by counsel. That is the theory of ratification by the payment by the Government of the expenses of the men on this trip and that no disciplinary action was taken by the Government against Lieutenant Ballweber.
"Ratification, gentlemen, requires the doing of an act when all of the facts are known. There is no evidence here that the Government knew this, the command itself, knew anything about what happened as of May 7th and 8th, the dates in question. As a matter of fact, the records rather carefully avoided the mention of this particular airfield and a mention of facts which might put the Government itself on notice that there was actually a deviation in the using of this little airstrip, which to me was obviously never designed for the purposes for which it was being used at the time."
Likewise, we find such findings supported by substantial evidence.
Appellant's specifications of error are:
I. "The trial court erroneously concluded that pilots Ballweber and Wood were acting outside the scope of their authority and not in the course of their employment and were on an independent `lark\' of their own May 8, 1961, when the flights which caused loss and damage to plaintiff\'s property occurred.
II. "The trial court erred in failing to hold that the defendant-appellee ratified the conduct of pilots Ballweber and Wood."
The law is well settled that the standard of government liability under the Federal Tort Claims Act is, with respect to both military and civilian employees, that imposed by the respondeat superior doctrine of the place where the act or omission occurred. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Chapin v. United States, 258 F.2d 465 (9th Cir. 1958), cert. denied 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed. 2d 627; Sievers v. United States, 194 F. Supp. 608 (Dist. of Oregon, 1961).
Appellant does not contend that the findings of fact of the District Court are clearly...
