Berrettoni v. United States

• Citation: 263 F. Supp. 907
• Decision Date: 16 February 1967
• Docket Number: Civ. No. 1367.
• Parties: Elizabeth BERRETTONI and Barry Berrettoni, a minor, by Elizabeth Berrettoni, his guardian ad litem, Plaintiffs, v. UNITED STATES of America, and Ronald Neil Searles, Defendants.
• Court: U.S. District Court — District of Montana

263 F. Supp. 907

Elizabeth BERRETTONI and Barry Berrettoni, a minor, by Elizabeth Berrettoni, his guardian ad litem, Plaintiffs, v. UNITED STATES of America, and Ronald Neil Searles, Defendants.

Civ. No. 1367.

United States District Court D. Montana, Butte Division.

February 16, 1967.

Berg, O'Connell & Angel, Bozeman, Mont., for plaintiffs.

Moody Brickett, U. S. Atty., Butte, Mont., for the United States.

M. J. Doepker, of Doepker & Hennessey, Butte, Mont., for defendant Ronald Neil Searles.

MEMORANDUM AND ORDER

MURRAY, Senior District Judge.

Plaintiffs allege they received injuries as a result of the negligence of the defendant Ronald Neil Searles in operating an automobile owned by him in such a manner as to force the vehicle in which the plaintiffs were riding off of the highway. They further allege that at the time of the mishap the defendant Searles was an Airman in the U. S. Air Force and was acting within the line of duty and the scope of his office or employment, and that, therefore, the defendant United States of America is liable for their injuries under the doctrine of respondeat superior.

After answering, the defendant United States moved for summary judgment on the ground that the complaint fails to state a claim against the United States upon which relief can be granted and that plaintiffs have no cause of action as a matter of law. In support of the motion the United States also filed a sworn statement by the defendant Airman Searles, a copy of travel orders issued by the Air Force to Airman Searles, copy of extracts from Air Force Manual 10-3 entitled "Administrative Orders" with an affidavit by a Colonel Hight of the Air Force explaining the abbreviations used in Airman Searles' orders and interpreting those orders; and a copy of Air Force Manual 35-22 entitled "Leave", with amendments.

The government's sole contention in support of its motion is that under the facts as they are shown to exist by the affidavits and exhibits filed with the motion, and under the Montana law of respondeat superior, which the government and the plaintiffs agree is controlling (see Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761), Searles was not acting within the course and scope of his employment at the time of the accident, and therefore, the government is not responsible for his alleged negligence.

From the evidence submitted in support of the motion, which is without conflict and uncontradicted, the following facts appear:

On June 16, 1964, Airman Searles left Keesler Air Force Base, Mississippi, on permanent change of station orders transferring him to Ellsworth Air Force Base, South Dakota. In those orders Searles was authorized to travel by privately owned automobile and was granted 30 days delay in reporting, chargeable as leave and an additional six days travel time, not chargeable as leave. He was required to report at Ellsworth not later than July 21, 1964. He proceeded from Keesler AFB to his home in Oregon, where he spent his leave, and he was enroute from his home in Oregon to Ellsworth AFB, when the accident in question occurred on July 20, 1964, about 15 miles west of Three Forks, Montana, on U. S. Highway 10. The Air Force knew of Searles intended trip to Oregon for it was advised of the address while on leave.

Relevant excerpts from Air Force Manual 35-22 concerning leave in effect on July 20, 1964, provide:

"A delay enroute authorized in orders will be counted as leave and so charged. Official travel time granted in conjunction with a delay enroute is not chargeable as leave." (AFM 35-22 dated 9/1/59, Chap. 1, para. 9 (f) p. 4)

* * * * * *

"When leave is granted as delay en route in permanent changes of stations or temporary duty orders, the time for official travel otherwise allowed in such orders will not be charged as leave." (AFM 35-22 dated 9/1/59, Chap. 2, para. 16, p. 8.)

With regard to computing leave and travel time, the Manual provides:

"In an instance where delay en route or emergency leave is granted in orders which also authorized official travel time, the day of departure from the last duty station is the first day of leave; the day following expiration of authorized days of delay en route or emergency leave is the first day of official travel time; and the day of reporting to the new station (or, when applicable, day of return to organization of assignment in the case of emergency leave transfers) is a day of duty." (AFM 35-22, dated 9/1/59, Attachment 1, page 27).

Under these provisions of the Air Force Manual on leave, Airman Searles was not on a leave status at the time of the accident, but was on official travel status. His first day of leave would have been June 16, 1964, the day of his departure from Keesler AFB (and his leave would have expired July 15, 1964. His six days official travel time would have commenced on July 16th, and the accident occurred July 20th.

In these circumstances and under Montana law, Searles was acting within the course and scope of his employment as an Air Force Airman at the time of the accident.

Had Airman Searles accomplished his transfer of permanent duty station by traveling directly from Keesler AFB to Ellsworth AFB with no authorized delay in reporting, and had the accident occurred during that journey, there could be no question but that he would have been acting within the course of his employment. In Callaway v. Garber, 289 F.2d 171 (1961), appealed from this court and controlled by Montana law, the Court of Appeals for the Ninth Circuit stated at 173:

"His travel at the time of the injury was incident to service. Without travel he could not respond to the orders of his superiors. The object of the orders was to provide training. The place where that training was to be provided was at a distance from his base. The travel was as much a part of his duty as the training itself.

In Callaway the court was...