332 F.2d 397 (1st Cir. 1964), 6301, Merritt v. United States

Docket Nº:6301.
Citation:332 F.2d 397
Party Name:Robert I. MERRITT et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
Case Date:June 01, 1964
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 397

332 F.2d 397 (1st Cir. 1964)

Robert I. MERRITT et al., Plaintiffs, Appellants,

v.

UNITED STATES of America, Defendant, Appellee.

No. 6301.

United States Court of Appeals, First Circuit.

June 1, 1964

Page 398

Andrew L. Benson, Winthrop, Mass., for appellants.

Morton Hollander, Atty., Dept. of Justice, with whom John W. Douglas, Asst. Atty. Gen., W. Arthur Garrity, Jr., U.S. Atty., and Harvey L. Zuckman, Atty., Dept. of Justice, were on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit judges.

ALDRICH, Circuit Judge.

This is an action under the Federal Tort Claims Act. 1 The plaintiffs, hereinafter referred to in the singular, leased a dwelling in Winthrop, Massachusetts to the government for use as off-post family housing for military personnel and their dependents. A sergeant, quartered therein, after finishing his duties for the day, negligently set fire to the house by smoking in bed. Title 28 U.S.C. § 1346(b) provides for government tort liability for the acts of an employee 'while acting within the scope of his office or employment * * *.' This, as to a member of the military, is defined to mean 'acting in line of duty.' 28 U.S.C. § 2671. The district court, finding the facts as above, dismissed the action, and plaintiff appeals.

It is settled that the phrase 'acting in line of duty,' while having a military sound, and, apparently, a different meaning in connection with benefit claims of military personnel against the government, with respect to the Tort Claims Act merely invokes the state law of respondeat superior. Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761; United States v. Taylor, 6 Cir., 1956, 236 F.2d 649, 74 A.L.R.2d 860, cert. dismissed, 355 U.S. 801, 78 S.Ct. 6, 2 L.Ed.2d 19; United States v. Hainline, 10 Cir., 1963, 315 F.2d 153, cert. den. 375 U.S. 895, 84 S.Ct. 172, 11 L.Ed.2d 124. We find nothing in the Massachusetts cases suggesting that an employee smoking in bed during his off

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hours is in the course of his employment. Plaintiff concedes that there would be no government liability for the sergeant's negligence if he had been smoking, in, say, a public bar, but contends that the fact that the government supplied him with a residence meant that anything he was doing in the residence was in the scope of his employment. We would need persuasive authority...

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