Wollman v. Gross, Civ. 79-4031.

• Citation: 484 F. Supp. 598
• Decision Date: 20 February 1980
• Docket Number: Civ. 79-4031.
• Parties: David M. WOLLMAN, Plaintiff, v. Jake GROSS, Jr., Defendant.
• Court: U.S. District Court — District of South Dakota

484 F. Supp. 598

David M. WOLLMAN, Plaintiff, v. Jake GROSS, Jr., Defendant.

Civ. 79-4031.

United States District Court, D. South Dakota, S. D.

February 20, 1980.

COPYRIGHT MATERIAL OMITTED

N. Dean Nasser, Jr., Sioux Falls, S. D., for plaintiff.

Robert D. Hiaring, U. S. Atty., Sioux Falls, S. D., and Pamela L. Wood, Trial Attorney Torts Branch, Dept. of Justice, Washington, D. C., for defendant.

Timothy Nimick, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for insuror.

MEMORANDUM DECISION

NICHOL, Chief Judge.

The case arises out of an automobile accident on June 11, 1976, between the plaintiff, David Wollman, and the named defendant, Jake Gross, Jr. The plaintiff and the defendant are lifelong neighbors who live about one and one-half miles apart near Freeman, South Dakota. On the date of the accident the defendant Gross was employed by the Agriculture Stabilization and Conservation Service (ASCS). He was the District Director for the ASCS State Office in charge of the supervision and review of programs for ten county offices within the state of South Dakota. It was for the purpose of checking the Davison County ASCS office in Mitchell, South Dakota, that the defendant left his home in his personal car on June 11, 1976. Mr. Gross' home was his assigned duty station and he received mileage reimbursement from the government for such trips. After finishing his work at the ASCS office in Mitchell he drove toward his home duty station by the most direct route without deviating for any personal business. The accident occurred around 4:00 p. m. on County Road 13 between the farmsteads of the plaintiff and the defendant.

Neither the plaintiff nor the defendant realized that defendant Gross was driving as a federal employee within the scope of his employment. Defendant Gross did not report the accident to his administrative office and his personal insurance company began dealing with the plaintiff. On January 25, 1979, more than two years after the accident, the plaintiff filed a complaint in state court naming Jake Gross, Jr., individually, as defendant. The involvement of the United States Government was first recognized by the counsel of the defendant's personal insuror somewhere in mid-February, 1979. The case was removed to federal court by the United States Attorney on March 23, 1979. On March 29, 1979, the United States filed a motion to dismiss for lack of jurisdiction due to the untimeliness of any administrative claim. The plaintiff then sent an administrative claim to the United States Department of Agriculture dated July 16, 1979, and on July 18, 1979, filed with this court a motion to remand to state court. A hearing on the two pending motions was heard by this court on August 29, 1979.

There are two questions to be resolved to determine the outcome of the United States Government's motion to dismiss and the plaintiff's motion for remand:

(1) Whether Jake Gross, Jr., was a federal employee acting within the scope of his employment at the time of the accident, and

(2) Whether the Federal Tort Claim was presented within two years of the date of the claims accrual?

I. MR. GROSS WAS A FEDERAL EMPLOYEE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT.

Under the Federal Tort Claims Act, the United States District Courts have exclusive jurisdiction of tort actions where a federal employee involved in an accident is acting within the scope of his employment at the time of the collision. 28 U.S.C. section 2679(b). Determining who is an employee of the government for Federal Tort Claim purposes is a matter of federal law. Pattno v. United States, 311 F.2d 604 (10th Cir. 1962), cert. den. 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963). The term "employee of the government" is defined to include "officers or employees of any federal agency" and "persons acting on behalf of a federal agency in an official capacity . . ." 28 U.S.C. section 2671. The critical element in determining when someone is a federal employee is the power of the federal government to control the detailed physical performance of his duties. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973); Gere v. United States, 425 F.Supp. 847, 850 (D.S.D. 1977).

The Agricultural Stabilization and Conservation Service is an agency of the United States established by the Secretary of Agriculture. The ASCS structure has been recognized as a "hierarchy of command" functioning as a government agency under the overriding authority and control of the Secretary of Agriculture and his appointees. Duba v. Schuetzle, 303 F.2d 570, 571 (8th Cir. 1962). Employees of the ASCS have consistently been recognized as federal employees under the Federal Tort Claims Act. Duba v. Schuetzle, 303 F.2d 570 (8th Cir. 1962); Gross v. Sederstrom, 429 F.2d 96, 98 (8th Cir. 1970); Delgado v. Akins, 236 F.Supp. 202 (D.Ariz.1964); Myers v. Cromwell, 267 F.Supp. 12 (D.Kan.1967). Contra, Lavitt v. United States, 177 F.2d 627 (2d Cir. 1949).

Jake Gross, Jr., was at the time of the accident and is now the District Director for the ASCS State Office. He is a full-time civil service employee who is paid by the federal government. He is an Agricultural Program Specialist in charge of the execution of agricultural programs and the supervision of county ASCS offices. He is under the supervision of the State Executive Director of the ASCS. This court finds that Jake Gross is controlled under the Secretary of Agriculture's hierarchy of command within the ASCS structure and is accordingly a government employee.

Unlike the determination of who is a federal employee according to federal law, this court is bound to apply state law in determining whether or not a federal employee's acts are within the scope of employment. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Davies v. U. S., 542 F.2d 1361, 1362 (9th Cir. 1976). Although no case decided under South Dakota law is analogous to the facts of the present case, a number of general tenets have been either adopted or noted previously by the South Dakota courts.

In Morman v. Wagner, 63 S.D. 547, 262 N.W. 78, 79-80 (1935), it was determined that an act of an employee done for the benefit of the employer either directly or indirectly is within the general scope of a servant's employment, but an act done to effect some independent purpose of the employee's is not within that scope. Several general principles were also noted in Alberts v. Mutual Service Casualty Insurance Co., 80 S.D. 303, 123 N.W.2d 96, 98 (1963). The court first noted the general rule as set out in 57 C.J.S. Master and Servant § 570d(2):

(C)onduct which the master has specifically directed is within the scope of the servant's employment, but it is not essential that the conduct be specially authorized by the master . . . (A)n act is within the scope of a servant's employment where it is reasonably necessary or appropriate to accomplish the purpose of his employment, and intended for that purpose although in excess of the powers actually conferred on the servant by the master.

Alberts v. Mutual Service Casualty Insurance Co., 123 N.W.2d at 98. The court then pointed out section 228(1) of the American Law Institute Restatement, Agency 2d:

Conduct of a servant is within the scope of employment if (a) it is of the kind he is employed to perform, (b) it occurs substantially within the authorized time and space limits; (c) it is actuated at least in part, by a purpose to serve the master.

Alberts, 123 N.W.2d at 98, and concluded from American Law Institute, Restatement, Agency 2d section 239 and other case authority that:

The servant may also be within the scope of his employment in using an instrumentality not expressly authorized to effect a result which he has been ordered by the master to accomplish where the means are not specified . . . and no other means are available, . . . or if the means available are not in operating condition. . . . For, `if the master directs a servant to accomplish a result and does not specify the means to be used, the servant is authorized to employ any usual or suitable means'.

Alberts, 123 N.W.2d at 99.

The plaintiff argues that Mr. Gross was an independent contractor in the use of his automobile even though he is normally an employee in other respects because the government did not have the right as a master to control the use of Mr. Gross' personal car at the time of the accident. The plaintiff relies on a line of cases where because the use of a personal car was permitted by the employer but not required or reasonably necessary to the performance of any business duties, the employee was found not to be within the scope of employment at the time of the automobile accident. Daugherty v. United States, 427 F.Supp. 222 (W.D.Pa.1977); Tavolieri v. Allain, 222 F.Supp. 756, 758-759 (D.Mass. 1963); Murphy v. United States, 113 F.Supp. 345, 346 (W.D.N.Y.1953); Bissell v. McElligott, 369 F.2d 115 (8th Cir. 1966), aff'g 248 F.Supp. 219 (W.D.Mo.1965), cert. den. 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967); Manderacchi v. United States, 264 F.Supp. 380 (D.Md.1967). But see, Levin v. Taylor, 150 U.S.App.D.C. 261, 464 F.2d 770 (D.C.Cir. 1972); United States v. Farmer, 400 F.2d 107 (8th Cir. 1968), aff'g 261 F.Supp. 750 (S.D.Iowa 1966). These cases find the use of a personal car to be merely permitted for the employee's convenience where such options as a bus, taxicab, trolley, passenger train, government vehicle, or walking were equally suitable alternatives.

Even assuming such a premise is the applicable law in South Dakota, these cases are not applicable to the facts of the present case. Mr. Gross' job required him to do a great deal of field travel between various county offices and his official duty station at his farmstead near Freeman, South Dakota....