Tucker v. United States
| Decision Date | 10 December 1974 |
| Docket Number | Civ. A. No. 74-40. |
| Citation | 385 F. Supp. 717 |
| Court | U.S. District Court — District of South Carolina |
| Parties | James Edward TUCKER et al., Plaintiffs, v. The UNITED STATES of America, Defendant. |
George E. Lewis, of Turner, Padget, Graham & Laney, Columbia, S. C., for plaintiffs.
John K. Grisso, U. S. Atty., Joel W. Collins, Jr., Asst. U. S. Atty., for defendant.
Defendant, United States of America, pursuant to Rule 56(b), Federal Rules of Civil Procedure, moves for summary judgment on the ground that this district court is without jurisdiction. Defendant alleges that, at the time the accident in question took place, the driver of defendant's vehicle was not acting within the scope of his employment, and, therefore, this court cannot find jurisdiction under the Federal Tort Claims Act. There is no dispute that there exists no genuine issue as to any material fact, and that, under the Federal Tort Claims Act, if jurisdiction exists, trial would be to this court sitting without the aid of a jury.
In viewing this motion, the court has before it the affidavits of South Carolina Highway Patrolman B. J. Littleton, Sergeant Donald R. Kendall of the United States Army Military Police, and Specialist 5 Douglas A. LeDoux of the United States Army; and the depositions of Private Woodrow Wilson Clarke, Jr., and LTC Crispus C. Nix of the United States Army, along with the exhibits attached thereto.
At the time of the incident in question, Woodrow Wilson Clarke, Jr., was a Private in the United States Army assigned to Company B-9-2. In order for him to qualify to operate certain military vehicles, he held a military driver's license, and he had on several prior occasions checked out vehicles in his capacity as a driver for his company.
Private Clarke has stated that within 45 to 50 minutes prior to presenting himself to the dispatcher to obtain a vehicle, he consumed two or three beers and a shot of bourbon.
On June 17, 1972, at approximately 7:30 p. m., Clarke went in uniform to the Transportation Motor Pool (TMP) at Fort Jackson, South Carolina, before Specialist 5 Douglas A. LeDoux, a dispatcher. Clarke had obtained a vehicle from Specialist LeDoux on one previous occasion. He now requested an International Scout truck saying that he was to provide transportation for some returning troops who he claimed were at the Columbia bus station. Clarke has admitted that the story he told the dispatcher was untrue. He actually planned to drive the vehicle downtown, abandon it, ride a bus to his sister's house, and go to see his mother in Baltimore, Maryland. After talking with the dispatcher, Clarke stated that he had to lean a little bit closer in order to sign the paper before leaving with the vehicle and that at that point he was within three to four feet from the dispatcher.
Specialist LeDoux, the dispatcher, stated:
On the above occasion I did not detect any odor or smell of intoxicating beverages (beer, liquor, etc.) from Clarke's breath. Additionally, at that time, I did not observe any slurring of speech, staggering or anything else with respect to Clarke which would indicate that he recently drank intoxicating beverages.
In his deposition, Private Clarke did not state whether he had used, eaten, or drunk anything to cover the odor of alcohol, and he did not state an opinion on his state of sobriety at the time. He did not indicate whether or not, in his opinion, LeDoux could have detected that he had been drinking.
After obtaining the vehicle, Clarke drove to a pool hall on Washington Street in Columbia, South Carolina, where he shot pool and drank beer, and from there proceeded to drive the vehicle elsewhere intending to leave it closer to the post.
Clarke has stated that he was stopped by civilian police at approximately 10:00 p. m. on the evening of June 17, 1972, while lost and driving on Interstate Highway 20 looking for Fort Jackson. He also stated that perhaps the deputy sheriff who stopped him called the post, and was led to say that they were asked to send somebody out to pick him up in the government vehicle.
On the night of June 17-18, 1972, the Military Police at Fort Jackson, had no operational radio equipment with which they could have communicated directly with any civilian law enforcement agency. The Fort Jackson Provost Marshal, at that time, LTC Crispus C. Nix, has stated that not until at least October, 1972 did the Fort Jackson Military Police have that capability.
This fact is further corroborated by Sergeant Donald R. Kendall, who was the Fort Jackson MP desk sergeant on the night in question. He has stated that he received a telephone call from the highway patrol dispatcher concerning Private Clarke, but that it was an inquiry as to whether Clarke was absent without leave. Sergeant Kendall has stated that he was not told that Clarke was driving under the influence and he was not requested to dispatch a patrol car. Earlier in the evening Sergeant Kendall received two telephone calls reporting a GI racing about in the Prescott residential area. He stated that he called the state highway patrol and county police after each call and requested that they investigate, which they did. He did not dispatch a patrol car as this would be unauthorized absent a request from civilian police. Kendall stated that not until he learned of a later accident did he connect these calls to the call about Clarke.
Patrolman B. J. Littleton of the South Carolina Highway Patrol has stated that he came upon Clarke on the evening of June 17, 1972, after he had been stopped by a Richland County deputy sheriff. He inquired into the situation and called his dispatcher to have him telephone the military police to report the fact that Clarke had been picked up and to inquire what the military wanted to have done with the army vehicle. He has stated that he did not request that the army send assistance as he thought the situation was well under control.
Despite the discrepancies between the affidavits of Patrolman Littleton and Sergeant Kendall, they agree on the important point that no request was made for the military authorities to come out to pick up Private Clarke as alleged by plaintiffs. Thereafter, the deputy sheriff released Clarke back on the road to operate the vehicle. Clarke claims he became lost and was still trying to find his way back to the vicinity of Fort Jackson when an accident occurred at approximately 1:45 a. m. on June 18, 1972, on S. C. Highway #S-4901, Prescott Road, near Columbia, South Carolina, involving an automobile owned by plaintiff, Carolina Leasing Corporation, and driven by plaintiff, James Edward Tucker, with plaintiff, Lynn Dennis, as a passenger, and the International Scout owned by the United States Army and driven at the time by Private Clarke.
I. Plaintiffs contend in their first cause of action that Clarke was acting in the scope and course of his federal employment and that the alleged collision was caused by his driving on the wrong side of the road at a high rate of speed.
Defendant contends that at the time of the above-described accident, Private Clarke was not acting within the scope of his federal employment as an enlisted man with the United States Army, but was off post without authorization from his military superiors, contrary to Army Regulations and the Uniform Code of Military Justice. Furthermore, defendant contends that, at the time of the accident, Clarke had misappropriated the army vehicle and had taken it into Columbia and its surrounding area on purely personal business totally unrelated to his duties and responsibilities with the United States Army.
II. As a second cause of action, plaintiffs contend that the government vehicle was negligently entrusted to Clarke by the motor pool dispatcher, Specialist LeDoux. Plaintiffs' basis for this contention is the allegation that the dispatcher knew or should have known, that Private Clarke had been drinking alcoholic beverages.
Defendant submits that the material facts relating to this incident are not at issue and that these facts do not establish under applicable law that the vehicle was negligently entrusted to Private Clarke.
III. As a third cause of action, plaintiffs originally contended that military police, acting within the course and scope of their employment, were advised of Private Clarke's intoxicated condition and his operation of the vehicle and were requested to pick up both Private Clarke and his vehicle, but failed and refused to do so. When this motion for summary judgment came on for hearing on October 14, 1974, counsel for plaintiff announced that he did not oppose the motion as to the third cause of action. The motion as to that cause of action is therefore granted.
It is noted that the motion for summary judgment was filed by defendant on the eve of the commencement of the term of court at which this case was set for trial. The case, being under the Federal Tort Claims Act, is, of course, to be tried by the court without a jury. In this case there appears to be no great dispute as to the facts of the case but only as to the conclusions to be drawn therefrom. It was noted in the case of Tyndall v. United States, 295 F.Supp. 448, 451 (E.D.N.C.1969), as follows:
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