400 F.2d 107 (8th Cir. 1968), 19116, United States v. Farmer

Docket Nº:19116.
Citation:400 F.2d 107
Party Name:UNITED STATES of America, Appellant, v. Betty Fuller FARMER, Appellee.
Case Date:August 14, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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400 F.2d 107 (8th Cir. 1968)

UNITED STATES of America, Appellant,

v.

Betty Fuller FARMER, Appellee.

No. 19116.

United States Court of Appeals, Eighth Circuit.

Aug. 14, 1968

William Kanter, Atty., Dept. of Justice, Washington, D.C., for appellant; Edwin L. Weisl, Jr., Asst. Atty. Gen., Dept. of Justice, Washington, D.C.,

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James P. Rielly, U.S. Atty., Des Moines, Iowa, and Morton Hollander, Atty., Dept. of Justice, Washington, D.C., on the brief.

Bruce B. Graves, of Swift, Brown, Winick & Randall, Des Moines, Iowa, for appellee; Ralph R. Randall, Des Moines, Iowa, of the same firm on the brief.

Before MATTHES and HEANEY, Circuit Judges, and REGISTER, Chief district judge.

MATTHES, Circuit Judge.

This litigation originated as a routine suit for damages for personal injuries between two individuals. Shortly after its inception the case assumed the posture of an action against the United States under 28 U.S.C. § 1346(b), popularly referred to as the Federal Tort Claims Act.

Betty Fuller Farmer (plaintiff) sued Edward Ralph Bettin in the Polk County District Court of the State of Iowa, seeking to recover for injuries she sustained in a collision that occurred between the automobile in which she was a passenger and the automobile being operated by Bettin. At that time Bettin was a member of the Army National Guard. He had been on active duty at Fort Leonard Wood and was returning to his home in Iowa when the collision occurred. On February 14, 1966, after the suit had been filed, Bettin, represented by the United States Attorney for the Southern District of Iowa, petitioned for removal of the cause pursuant to 28 U.S.C. § 2679(d). 1 In support of the petition, the United States Attorney certified that upon the basis of the information available to him, Bettin was, at the time of the incident out of which the suit arose, 'acting within the scope of his office as active duty member of the United States Army of the United States Government.' Upon motion the United States was substituted as party defendant. On May 5, 1966, the Government filed a motion to remand to the state court on the ground that new and additional evidence disclosed that Bettin was outside the scope of his federal employment at the time of the collision. After a hearing the district court denied the motion to remand. Farmer v. United States, 261 F.Supp. 750 (D.Iowa 1966). Later the court ascertained the amount that plaintiff was entitled to recover and entered judgment accordingly. The Government appealed from that judgment.

The relevant facts stand undisputed. Bettin enlisted in the Army National Guard of the State of Iowa in December, 1963. He entered federal active duty training for a period of six months commencing on April 8, 1964, at Fort Leonard Wood, Missouri. Upon completion of his tour of duty an order was issued releaing him from active training, effective August 22. Pursuant to an Army regulation, the order required Bettin to return to his home station all items of clothing which had been issued to him at Fort Leonard Wood.

In obedience to the order, Bettin signed out at Fort Leonard Wood at approximately 12:00 noon on August 21. At that time he received his final pay for the period ending August 22. Included was a cash travel allowance for transportation to his home of record. At approximately 9:15 on August 21, while traveling a direct route between fort Leonard Wood and Storm Lake, Iowa, the collision occurred. Bettin also was injured, was hospitalized and released on August 24. He

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reported to the Storm Lake Armory on that day and turned in the uniforms and personal records.

The Government stipulated that while traveling from Fort Leonard Wood to Storm Lake Private Bettin was not on military leave and that while enroute from Fort Leonard Wood to Storm Lake, Iowa, he was an employee of the United States.

Thus, in capsule form we have a case where the Government concedes that the wrongdoer was an employee of the Government at the time the negligent act occurred but denies that the employee was 'acting within the scope of his office or employment * * *.' In resolving the question at hand, Judge Stephenson summarized the factors indicating Private Bettin was serving the interests and business of the United States as follows:

'(1) He was returning to his home station after complying with...

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