363 F.2d 662 (9th Cir. 1966), 19853, United States v. Romitti

Docket Nº:19853.
Citation:363 F.2d 662
Party Name:UNITED STATES of America, Appellant, v. Richard M. ROMITTI et al., Appellees.
Case Date:July 18, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 662

363 F.2d 662 (9th Cir. 1966)

UNITED STATES of America, Appellant,

v.

Richard M. ROMITTI et al., Appellees.

No. 19853.

United States Court of Appeals, Ninth Circuit.

July 18, 1966

Page 663

John W. Douglas, Asst. Atty. Gen., Manuel L. Real, U.S. Atty., Morton Hollander, John C. Eldridge, Walter H. Fleischer, Attorneys, Dept. of Justice, Washington, D.C., for appellant.

E. Eugene Davis, Jr., Patrick Davis, of Hindman & Davis, Los Angeles, Cal., for appellee.

Before BARNES, MERRILL, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

This is an appeal from a judgment against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2674, for damages resulting from an automobile accident caused by the negligent driving of Mr. Moore, an employee of the United States.

All agree that the question presented is whether under the doctrine of respondeat superior as applied in California (where Mr. Moore's negligent act occurred) a private employer would be liable for plaintiff's injuries in the circumstances of this case. See, e.g., McCall v. United States, 338 F.2d 589, 592 (9th Cir. 1964) ;

Page 664

Witt v. United States, 319 F.2d 704, 707-708 (9th Cir. 1963). The United States contends the district Court erred in holding that Mr. Moore 'was operating his automobile within the course and scope of his employment' when the accident occurred. Under California law this was a determination to be made by the trier of fact upon a weighing of all of the pertinent circumstances. Loper v. Morrison, 23 Cal.2d 600, 145 P.2d 1 (Sup.Ct.Cal.1944). The issue is whether the district court's finding was clearly erroneous.

The evidence was as follows. Mr. Moore was employed by the United States as an electronics engineer assigned to Edwards Air Force Base, Kern County, California. Edwards Air Force Base maintained a secondary facility for parachute testing near El Centro, California, about 240 miles away. Mr. Moore and two other government employees (Mr. Brown, an electronics engineer and the project supervisor, and Mr. Rathbun, an electronics technician) were ordered to travel from the Kern County base to the El Centro base 'to support physiological jump tests for Dyna Soar Program', and then to return to the base in Kern County. They were authorized to travel by government or commercial carrier, either air or surface, or by privately owned automobile. Travel by private automobile was 'authorized between Edwards Air Force Base, California and El Centro, California, and return, only,' and was to be reimbursed at the rate of ten cents per mile. Per diem was authorized in the amount of $16.00 per day, including travel time. The total cost attributable to travel was not to exceed what the cost would have been if first-class rail transportation were used.

After working at their regular duty stations during the morning of July 11, 1962, the three men left their office building about noon to drive to the El Centro facility in Mr. Moore's car. They took with them, for use in the scheduled parachute test, two electronic devices (valued at $6,600 each) and certain hand tools, all belonging to the government. They drove directly to El Centro, arrived about 5:00 p.m., and checked in at a local motel. There they met with the parachutist and with representatives of the manufacturer of the electronic equipment which was to be tested. The test could not be held the next day because of had weather; on the second morning the men drove to the test site with the equipment and the test was conducted. Mr. Moore's car was used in...

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