Alexander v. Civil Air Patrol

• Decision Date: 26 September 1955
• Docket Number: Civ. No. 190.
• Citation: 134 F. Supp. 691
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Stewart M. ALEXANDER, Jr. v. CIVIL AIR PATROL and the United States of America.

134 F. Supp. 691

Stewart M. ALEXANDER, Jr. v. CIVIL AIR PATROL and the United States of America.

Civ. No. 190.

United States District Court Middle D. North Carolina, Durham Division.

September 26, 1955.

Edwards & Sanders, Durham, N. C., for plaintiff.

Edwin M. Stanley, U. S. Atty., Greensboro, N. C., John J. Finn, U. S. Dept. of Justice, Washington, D. C., William D. McCarthy, Capt. USAF, Office of Judge Advocate General USAF, Washington, D. C., for defendant.

HAYES, District Judge.

This action is brought under the Federal Tort Claims Act¹ against the United States and Civil Air Patrol, Inc., to recover damages for serious permanent injuries sustained by plaintiff in an Army airplane accident which killed the pilot, co-pilot and the Commander. The accident occurred September 24, 1950, near Evansville, Indiana, airport, where the plane hit the ground and burst into flames 600 yards before reaching the runway where the pilot intended to land the plane.

At the close of all of the evidence the action against the Civil Air Patrol, Inc., was dismissed because the evidence disclosed that the plane was owned, maintained, operated and exclusively controlled by the Army Air Force of the United States.

It is necessary to decide first of all what authority, if any, the pilot had to take the plaintiff on the plane. If the pilot had no authority, then no liability against the United States can arise. It may be assumed that the pilot had no authority unless it was included expressly or by implication in his general authorization to act as Liaison officer of the Army Air Force, assigned to the Civil Air Patrol.

The CAP was created by Chap. 527, Act July 1, 1946, 36 U.S.C.A. §§ 201-208. It was created at the instance of the Civil Air Patrol of the United States Air Force whose more than one hundred thousand senior and cadet members were made members of the corporation. Section 203. It was created as an auxiliary of the AAF and to relieve the AAF from functions it was performing for the predecessor CAP. Its objects and purposes are set forth below.² By section 205 it was authorized to accept gifts and devises which will further the corporate purposes and to establish offices in each of the 48 States and "To do any and all acts and things necessary and proper to carry into effect the objects and purposes of the corporation." By Section 207 it was required to make annual reports to Congress of its proceedings and activities for the preceding calendar year.

Pursuant to Public Law 557, 80th Congress, approved May 26, 1948, 5 U.S. C.A. §§ 626l, 626m, the Secretary of the Air Force was given broad authority in assigning officers and materiel to CAP and to promulgate regulations governing CAP and Air Force personnel. Excerpts of such regulations are set out below.³

It is admitted that Lieutenant Singleton was an officer of the United States Air Force assigned at the Air Force Liaison Office to South Dakota Wing of the Civil Air Patrol for the purpose of accomplishing liaison between the United States Air Force and the said wing and of assisting the wing in the furtherance of its mission. The aircraft was assigned to him to aid and assist him in the accomplishment of these purposes, and that he was authorized to use said aircraft to assist the Civil Air Patrol in its efforts to raise funds for its legitimate purposes. It was likewise admitted that he was authorized to fly missions in aircraft pursuant to request received from officers of the Civil Air Patrol.

The defendant admits that the maintenance of the aircraft and its inspection were duties of the USAF and was unable to show what inspection, if any, was made immediately before the flight or who furnished the gasoline. It was also admitted that Lieutenant Singleton was acting in line of duty in making this flight for CAP.

In any view of the facts, Lieutenant Singleton was acting in line of duty and acting within the scope of his employment as an officer of the USAF in making this flight in the AF plane. If there had been any doubt it was removed by the statement of Col. Myhra, who said the basis for requesting Singleton to make the flight was the authority that had been verbally received from Major General Beau to expedite the PGA-CAP project in any way possible. General Beau was Commanding General, Headquarters and Headquarters Squadron, Civil Air Patrol, Bolling Air Force Base, Washington, D. C., and also National Commander Civil Air Patrol and in his dual capacity he issues orders to the United States Air Force personnel assigned to CAP "By Command of Major General Beau" and orders to civilian employees of CAP "By Orders of the National Commander". On November 15, 1950, he issued the following order:

"VOCG 23 Sep 50, Ist Lt Oliver A. Singleton AO 762012 USAF LO SD WG Hq CAP USAF is placed on Tdy for aprx one (1) day WP o/a 24 Sep 50 fr Sioux Falls SD to Olathe Kans and Louisville Ky for purpose of coordinating AF-CAP activities upon comp ret to proper sta Sioux Falls SD TBMAA TBGAA C IPAP TDN AFR 35-59. `No per diem auth.' Such orders having been issued under exigencies which prevented the issuance of orders in advance of tvl are confirmed and made a matter of record.

"By Command of Major General Beau."

The foregoing confirms the statement of Col. Myhra that General Beau gave verbal authority for the flight and the foregoing order in writing confirms it.

Under the authorities in this Circuit which have fully considered and decided the test for determining whether the agent is an employee of the United States and is engaged within the scope of his employment, it is well settled that in the instant case Lieutenant Singleton meets both tests. United States v. Eleazer, 4 Cir., 177 F.2d 914, United States v. Sharpe, 4 Cir., 189 F.2d 239 and Paly v. U. S., 4 Cir., 221 F.2d 958, in which the opinion of Judge Chestnut, D. C., 125 F.Supp. 798 is adopted as the opinion of the Circuit Court.

It is equally clear that Lt. Singleton was acting within the scope of his authority in undertaking to transport plaintiff Alexander from Olathe, Kansas, to Louisville, Ky. He did it at the request of Col. Myhra, National Executive Board Member. On the afternoon of September 23, Col. Myhra contacted numerous units in several states before getting in touch with the South Dakota wing. The flight, if made at all, was to be made that afternoon. He requested Singleton to fly down to Olathe, Kansas, and pick up Alexander and fly him to Louisville. Singleton undertook the flight for CAP and at its request. The Commander of his S. D. Wing came with him. It is appropriate to state here the whole background of this venture.

At a meeting of the Executive Board of CAP in December, 1949, at which Major General Beau was present, a program was proposed by Col. Myhra and Col. Kostlecky, North Dakota Wing Staff member, to General Beau in regard to a promotion program, soliciting the aid of the Professional Golfers Association and its members to donate one round of golf per year on an exhibition basis within each state with all proceeds received going to CAP Cadet program. It was explained to General Beau that CAP should provide transportation for all participants from the point where the golfers were to the place of exhibition and fly them to their next tournament rather than ask the golfers to pay their transportation. General Beau approved the idea, encouraged the CAP officials to negotiate and keep him advised.

A meeting was held in Chicago between Howard Capps, Secretary of PGA and Cols. Myhra and Kostelecky. The plan was submitted and Capps agreed to extend the information to the traveling Pros and the Professional Executive Board at their next meeting which was to be in Kansas City. Orders were issued by National Headquarters CAP to transport the National Executive Board Members to Chicago. Col. Myhra telephoned General Beau of the favorable attitude of Secretary Capps and was informed at that time by General Beau to continue the promotion program in any way deemed necessary by Col. Myhra. Orders were issued to transport Cols. Myhra and Kostelecky to Kansas City to meet with PGA Executive Board and players as proposed by Capps. The meeting was held in which about forty professional golfers were present. A vote was taken and carried in favor of the plan, the details of which would be worked out. No contract was consummated at that time but there was every reason to believe it would be arranged in time for the beginning winter season.

Lloyd Mangum introduced Alexander to Col. Myhra. Alexander was then one of the ten best pros in the U. S. and was playing in the final tee-off which prevented him being able to catch a commercial plane for Louisville where he could make connection for his home on his way to participate in a tour of golfing in South America. The pros and the CAP officials agreed that it would demonstrate the feasibility of the plan to fly Alexander to Louisville. Col. Myhra tried but could not contact Liaison Officer in Missouri or Kansas, Iowa, Nebraska and Kentucky. Alexander abandoned the idea and arranged to travel by car all night to reach Louisville and get the plane there. But during the afternoon of Sep. 23, Col. Myhra got word to Alexander to report to the Olathe Airport as soon as his game was finished and Lt. Singleton would transport him to Louisville. Myhra had contacted Singleton at Sioux Falls and he agreed to make the flight. Alexander reported at the airport and Lt. Singleton directed him what seat to occupy. Alexander had a serial number in the Air Force Reserve but whether it was exhibited or not is not clear.

This flight was a part of the CAP promotion program, made at its initiative, and as a part of the negotiations seeking to induce the professional golfers to donate one day's service for the financial aid of CAP. It was in the nature of contractual and is supported by a business or valuable consideration. Alexander was a passenger and not a mere...