338 F.2d 589 (9th Cir. 1964), 19164, McCall v. United States

Docket Nº:19164.
Citation:338 F.2d 589
Party Name:Paulyne B. McCALL, as the Administratrix of the Estate of Virgil C. McCall, Deceased, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 25, 1964
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 589

338 F.2d 589 (9th Cir. 1964)

Paulyne B. McCALL, as the Administratrix of the Estate of Virgil C. McCall, Deceased, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19164.

United States Court of Appeals, Ninth Circuit.

November 25, 1964

Page 590

Horton Smith, Rocky V. Lindell, Smith, Lindell, Krutch, Carr & Poliak, Seattle, Wash., for appellant.

William N. Goodwin, U.S. Atty., Robert C. Williams, Asst. U.S. Atty., Seattle, Wash., for appellee.

Before HAMLIN, JERTBERG and DUNIWAY, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant appeals from a judgment of dismissal entered in favor of the United States in an action brought against the United States in the District Court for the Western District of Washington, Northern Division, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Jurisdiction of the District Court was based on 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671 et seq. This court has jurisdiction under 28 U.S.C. § 1291.

The facts are not in dispute. On March 31, 1963, one Ray E. Grantham, an enlisted man with a rating of Storekeeper 1st Class, in the United States Navy, while traveling in his own automobile from his home in Hayward, California, to Bremerton, Washington, struck and killed one Virgil C. McCall who was then engaged in changing a tire on the shoulder of the Tacoma-Seattle Freeway in the State of Washington. The United States has not, and does not, contest the fact that the negligence of Grantham in the control and operation of his automobile proximately contributed to the cause of McCall's death.

Following trial to the District Court, the court found as a fact, and concluded as a matter of law, that Grantham was not acting within the scope of his employment as an employee of the United States at the time and place of the accident which resulted in McCall's death, and accordingly entered judgment dismissing appellant's action with prejudice.

The record discloses that Grantham had enlisted in the United States Navy for a period of six years on April 14, 1961, and that in the early part of 1963 he was serving on board the USS CORAL SEA, moored at Alameda, California. He was approached by a shipmate who told him of a Storekeeper 1st Class, one Pedro Dela Cruz, then serving aboard the USS BON HOMME RICHARD, docked at Bremerton, Washington, who desired duty aboard the USS CORAL SEA for personal reasons. Grantham, on the other hand, wished to transfer to the USS BON HOMME RICHARD because the USS CORAL SEA was going overseas and he desired to remain closer to his family. After learning of the possibility for the exchange, Grantham initiated a special request through his division officer requesting an exchange of duty with Dela Cruz pursuant to the Navy's 'no cost transfer' or 'SWAP' program. That program is defined in the Navy's Enlisted Transfer Manual, Chapter 16, as follows:

'16.11 Definition

'A no cost transfer is defined as a personnel movement authorized for the convenience of the individual involved, and effected at no expense to the Government. Government transportation for the man, his dependents and household effects is not authorized, nor is payment of a dislocation allowance. Such transfers must be effected during periods of leave (except for hospital patients) and no proceed time or travel time is authorized.'

As required by Chapter 16 of the Enlisted Transfer Manual, Grantham's letter request contained, in part, this statement:

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'I understand that if my transfer in exchange is authorized it will be as a result of my own request for my personal convenience, and it is to be made at no cost to the Government.'

The requests of Grantham and Dela Cruz were approved and each was issued a transfer order. The transfer order issued to Grantham granted him fifteen days leave, at the expiration of which he was to report on board the USS BON HOMME RICHARD. The transfer order contained the following typewritten caveat:

'NO EXPENSE TO THE GOVT IS AUTHORIZED IN CONNECTION WITH THESE ORDERS, IN CASE YOU DO NOT DESIRE TO BEAR THE EXPENSE YOU WILL REGARD THIS AUTHORIZATION AS REVOKED.'

It was stipulated that no proceed or travel time was authorized or allowed in the transfer. The transfer order authorized the use of Grantham's own automobile, but the authorization was unnecessary and meaningless because Grantham was on leave. He testified that he could have travelled by any means which he desired. After logging off the USS CORAL SEA on March 29, 1963, Grantham spent the night at his home in Hayward, California, and then left the following day in his privately owned automobile for Bremerton, Washington. While Grantham's leave was to expire on April 13, 1963, he reported to the BON HOMME RICHARD at Bremerton, Washington, on April 1, 1963, thus taking only a portion of the leave to which he was entitled.

The District Court found inter alia the following facts:

1. Grantham was on leave status at the time of the accident. His leave commenced March 30, 1963 and terminated April 1, 1963.

2. During said period of leave Grantham...

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