Bates v. U.S.

Decision Date08 March 1983
Docket NumberNo. 82-1381,82-1381
Citation701 F.2d 737
PartiesMarjorie BATES, Appellant, v. UNITED STATES of America, Appellee. Juanita Ann DECKARD, et al., Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Karl Zobrist, David R. Erickson, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for Marjorie Bates.

David E. Wilhite, Lebanon, Mo., for Juanita Deckard.

Dan L. Birdsong, Routh, Thomas, Birdsong & Hutton, Rolla, Mo., J. Max Price, Salem, Mo., for Leroy Arlo Bates and Mr. and Mrs. James Hawkins.

Darrell Deputy, Jr., Lebanon, Mo., for Mr. and Mrs. Hershel Needham.

Robert G. Ulrich, U.S. Atty., Kenneth Josephson, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before ROSS and FAGG, Circuit Judges, and WATERS, * District Judge.

H. FRANKLIN WATERS, District Judge.

These are actions brought by several plaintiffs against the United States of America under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 2671 et seq., resulting from the murder of three young persons and the serious injury of another by a military policeman at Fort Leonard Wood, Missouri, military base. The parties entered into stipulations of fact and filed cross-motions for summary judgment, and the district court 1 denied the motions of the plaintiffs and granted the motions of the United States. Plaintiffs appealed from the judgment of the court. We affirm.

I.

FACTS.

On January 13, 1977, Specialist 4 Johnny Lee Thornton, while a military policeman on the Fort Leonard Wood, Missouri, military base, murdered with his government-issued 45-calibre pistol three teenagers and attempted to murder another. He was later convicted of kidnap, rape, assault with intent to kill, and murder. The plaintiffs are Juanita Ann Deckard, the only survivor of the incident, and the parents of the deceased victims, Anthony Lee Bates, Wesley Hawkins and Linda Needham. In an excellent and exhaustive opinion, 517 F.Supp. 1350, the trial court set forth the facts stipulated to by the parties as follows:

The stipulations of facts state that on January 12-13, 1977, Johnny Lee Thornton was a Specialist 4 in the 463rd Military Police Company, stationed at Fort Leonard Wood, Missouri. At all relevant times on January 12-13, 1977, Thornton was on active duty as a member of the United States Army and as an employee of the Department of the Army, an agency of defendant United States of America. Thornton was a military policeman assigned to the Game Warden Section of the Provost Marshal Office at Fort Leonard Wood, Missouri. All the facts which form the basis of the present action occurred on the Fort Leonard Wood Military Reservation in Pulaski County, Missouri.

Thornton's duties consisted of the random and selected patrolling of Fort Leonard Wood. Thornton checked permits, assisted sportsmen, and patrolled for fish and game violators, poachers, and trespassers. He was also to search for illegal trash dumping; the destruction, dumping or cutting of trees; and the destruction of wildlife food plots.

Thornton's work involved a minimal amount of supervision and a high degree of professional competence. In addition to his game and wildlife duties set out above, Thornton also had authority to arrest military personnel and to detain civilians for any suspected crimes and could make such arrests or detention on any and all parts of the Army base. It was Army policy that the detention of civilians for suspected crimes be limited to only such time necessary to release a civilian to federal or state law enforcement officials.

On the evening of January 12, 1977, Thornton reported for duty and was issued several items of United States Army equipment by agents of defendant United States. He was issued a four-wheel drive military police jeep which was utilized by Thornton while he was on duty on January 12-13, 1977. The vehicle was clearly marked as a military police vehicle and Thornton was in full military uniform at all times during this period.

Thornton was also issued several other items of United States Army equipment by agents of defendant United States. He was given one U.S. Army 45-calibre pistol, several rounds of ammunition, two pairs of military police handcuffs and one military police badge. It was not unusual for someone acting in Thornton's capacity to check out two pairs of handcuffs or several rounds of ammunition before going on duty.

While on duty on the evening of January 12-13, 1977, Thornton stopped a vehicle by using his red emergency lights on his military police jeep. The vehicle was driven by Anthony Lee Bates and occupied by passengers Wesley Hawkins, Juanita Ann Deckard, and Linda Needham. All the occupants of the car were teenagers who lived in the Fort Leonard Wood area. Thornton informed Bates and Hawkins that the southgate Texaco station, a nearby gas station which is not on United States property, had been robbed and that Bates' car matched the description of the car involved in the robbery. While the southgate Texaco station was not, in fact, robbed on January 12-13, 1977, it is agreed that if the southgate Texaco station had been robbed, as Thornton alleged, he would have had the authority to stop and detain suspected vehicles on the military base while he was on duty.

After stopping the vehicle, Thornton ordered the two males, Bates and Hawkins, to get out of the car. He handcuffed Bates and Hawkins' hands behind their backs and placed the two youths in the back seat of the military police jeep. Then, without provocation, Thornton shot Anthony Lee Bates and Wesley Hawkins through the chest with his military issue 45-calibre pistol as they sat handcuffed in the back seat of the jeep.

After shooting Bates and Hawkins, Thornton ordered Juanita Ann Deckard and Linda Needham into the jeep and took them to a cabin on a remote part of the Army base. He then forcibly raped the girls and forced them to commit oral sodomy upon each other and to commit oral sodomy upon him. Afterwards, Thornton shot the two girls. He then buried all four victims in the snow and left them for dead. Anthony Lee Bates, Wesley Hawkins, and Linda Needham died as a result of the gunshot wounds inflicted by Thornton. Juanita Ann Deckard was the only survivor of Thornton's attack. On July 26, 1977, in criminal proceedings before this Court Thornton was convicted of murder in the first degree, assault with intent to kill, rape, and kidnapping for the purpose of committing rape.

II.

DISCUSSION.

None of the parties contend that the trial court's summarization of the stipulated facts is in error in any regard, but the plaintiffs earnestly contend that the trial court erroneously applied these facts to the applicable law. Specifically, the plaintiffs contend that the trial court's granting of the summary judgment in favor of the United States "was clearly erroneous and contrary to the law in that Specialist 4 Johnny Lee Thornton was acting within the course and scope of his employment at the time that he committed the assaults and murders on January 12-13, 1977."

These actions were brought under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 2671 et seq., and the parties agree that the issue that the trial court had to determine, and that this court must review, is whether Thornton, at the time of the shootings, rapes, and assaults was acting in the course of and in the scope of his employment as a military policeman. This issue is to be determined by the application of state law, and plaintiffs do not contend otherwise. See p. 11 of Plaintiffs' Brief, and Stencel Aero Engineering v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Bissell v. McElligott, 248 F.Supp. 219 (D.C.Mo.1965), aff'd, 369 F.2d 115 (8th Cir.1966), cert. denied, 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967).

Thus, the responsibility of the trial court, and the responsibility of this court, is to apply the law of the state of Missouri as announced by applicable decisions of the highest court of that state, and when this is done, this court is convinced that the trial court correctly decided these cases.

The seminal case on the law of respondeat superior in Missouri is Haehl v. Wabash R. Co., 119 Mo. 325, 24 S.W. 737 (1893). The law, as announced in Haehl, supra, was the law in Missouri with little change from 1893 until a decision of the Missouri Supreme Court in 1973 in Wellman v. Pacer Oil Co., 504 S.W.2d 55 (Mo.1973).

The landmark case of Haehl, supra, was an action for the wrongful death of a man shot by a bridge watchman employed by the defendant railroad. The decedent was crossing a railroad bridge and, after being halted and turned away by the watchman, he started to leave the bridge and was pursued and shot while still upon the bridge approach. In what has now become an oft-quoted passage, the Missouri court pronounced the Missouri rule on respondeat superior as follows:

The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in or about his business, and carrying out his purposes. He is then responsible because the thing complained of, although done through the agency of another, was done by himself; and it matters not in such case whether the injury with which it is sought to charge him is the result of negligence, unskillful or wrongful conduct, for he must choose fit agents for the transaction of his business. But if his business is done, or is taking care of itself, and his servant, not being engaged in it, not concerned about, but impelled by motives that are wholly personal to himself, and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when that has and can have no tendency to promote any purpose in which the principal is interested, and to promote which the servant was employed, then the...

To continue reading

Request your trial
9 cases
  • Attallah v. US
    • United States
    • U.S. District Court — District of Puerto Rico
    • February 4, 1991
    ...or Hernández.7 Case law from other jurisdictions also supports dismissal of the instant lawsuit. For example, in Bates v. United States, 701 F.2d 737 (8th Cir.1983), the Eighth Circuit held that a military policeman's assault and murder of four youths while he was on active duty on the mili......
  • Mary M. v. City of Los Angeles
    • United States
    • California Supreme Court
    • September 5, 1991
    ...The City has also cited two federal decisions, City of Green Cove Springs v. Donaldson (5th Cir.1965) 348 F.2d 197, and Bates v. United States (8th Cir.1983) 701 F.2d 737, which concluded that under applicable state law the public entity involved could not be held vicariously liable for a r......
  • Doe v. Forrest
    • United States
    • Vermont Supreme Court
    • May 7, 2004
    ...the officer has the power or the opportunity to do so has been soundly rejected by other courts. See, e.g., Bates v. United States, 701 F.2d 737, 741-42 (8th Cir.1983); Gambling v. Cornish, 426 F.Supp. 1153, 1154-55 (N.D.Ill.1977); Boykin v. Dist. of Columbia, 484 A.2d 560, 562 (D.C.1984); ......
  • Hallett v. US
    • United States
    • U.S. District Court — District of Nevada
    • February 21, 1995
    ...still not acting within the scope of employment. See, e.g., Bates v. United States, 517 F.Supp. 1350, 1357 (W.D.Mo.1981), aff'd, 701 F.2d 737 (8th Cir. 1983) (though in uniform and on duty, military policeman not acting within the scope of federal employment per Missouri respondeat superior......
  • Request a trial to view additional results
1 books & journal articles
  • Employer liability for employee online criminal acts.
    • United States
    • Federal Communications Law Journal Vol. 51 No. 2, March - March 1999
    • March 1, 1999
    ...clearly cannot further any employer's interest). See also Haybeck v. Prodigy Servs. Co., 944 F. Supp. 326 (S.D.N.Y. 1996). (30.) Bates, 701 F.2d 737, 741-42 (8th Cir. (31.) Id. at 739-40. (32.) Id. at 740. (33.) Id. at 741. (34.) RESTATEMENT, supra note 19, [sections] 228(1)(c). (35.) See W......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT