Bissell v. McElligott

• Decision Date: 06 December 1966
• Docket Number: No. 18330,18332.,18330
• Citation: 369 F.2d 115
• Parties: Bonnie J. BISSELL et al., Appellants, v. Edmond J. McELLIGOTT, etc., et al., Appellees. Sylvia Lynn GAMPHER et al., Appellants, v. Edmond J. McELLIGOTT, etc., et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

369 F.2d 115 (1966)

Bonnie J. BISSELL et al., Appellants, v. Edmond J. McELLIGOTT, etc., et al., Appellees.

Sylvia Lynn GAMPHER et al., Appellants, v. Edmond J. McELLIGOTT, etc., et al., Appellees.

Nos. 18330, 18332.

United States Court of Appeals Eighth Circuit.

December 6, 1966.

COPYRIGHT MATERIAL OMITTED

Alan B. Slayton, of Reese, Constance & Slayton, Independence, Mo., and Tom B. Kretsinger, of Kretsinger, Kretsinger & Edell, Kansas City, Mo., for appellants and filed printed brief.

Jack H. Weiner, Atty., Dept. of Justice, Washington, D. C., for appellee United States; John W. Douglas, Asst. Atty. Gen., Dept. of Justice, and David L. Rose, Atty., Dept. of Justice, Washington, D. C., and F. Russell Millin, U. S. Atty., Kansas City, Mo., were with him on the brief.

No argument or brief filed for Edmond J. McElligott, appellee.

Before VAN OOSTERHOUT and GIBSON, Circuit Judges, and NICHOL, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Before us are appeals by the plaintiffs from summary judgment dismissing their consolidated causes of action against the United States under the Federal Tort Claims Act based on wrongful death and damages arising out of alleged negligent operation of his private automobile by Sgt. Tompkins of the Air Force while traveling on travel time from a temporary base back to his permanent station. The trial court held that Missouri law of respondeat superior is controlling and that under the facts of this case the Government is not liable to the claimants under the Missouri law of respondeat superior for any negligent acts of Sgt. Tompkins. The trial court's opinion is reported at D.C., 248 F.Supp. 219. This timely appeal followed.

The parties agreed that the court, pursuant to Rule 42(b), should separately try and determine the issue of the scope of Sgt. Tompkins' employment upon the basis of the record made by affidavits, stipulations and exhibits. All parties were afforded a full opportunity to produce any desired evidence upon this issue. The propriety of deciding this issue by summary judgment is not questioned.

Under 28 U.S.C.A. § 1346(b), the United States is liable for injuries caused by the negligent act of an employee if caused by the employee "while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

Section 2674 of 28 U.S.C.A. provides:

"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, * * *"

Among the definitions included in 28 U.S.C.A. § 2671 is the following:

"`Acting within the scope of his office or employment,\' in the case of a member of the military or naval forces of the United States, means acting in line of duty."

The words "line of duty" in the statute just quoted go no further than to invoke the state law of respondeat superior with respect to tort claims arising out of alleged wrongful acts of military personnel. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761; Myers v. United States, W.D.Mo., 219 F.Supp. 71, 77, aff'd 8 Cir., 331 F.2d 591; McCall v. United States, 9 Cir., 338 F.2d 589, 592; Merritt v. United States, 1 Cir., 332 F.2d 397, 398; Chapin v. United States, 9 Cir., 258 F.2d 465, 468; United States v. Eleazer, 4 Cir., 177 F. 2d 914, 918.

The unique over-all control which the military service has over its members does not expand the legal doctrine of respondeat superior beyond scope of employment as applied in the applicable state law for determining the liability of a private employer. In Myers v. United States, Judge Becker properly states the applicable law as follows:

"In the case of a member of the military or naval force of the United States, the use of the phrase `in line of duty\' in Section 2671 does not expand the legal doctrine of respondeat superior beyond `the scope of his office or employment\' as applied in the applicable state law for determining the liability of a private employer." 219 F. Supp. 71, 77.

In United States v. Campbell, 5 Cir., 172 F.2d 500, 503, which involves a federal torts claim based upon the act of a member of the naval forces, the court states:

"The whole structure and content of the Federal Torts Claims Act makes it crystal clear that in enacting it and thus subjecting the Government to suit in tort, the Congress was undertaking with the greatest precision to measure and limit the liability of the Government, under the doctrine of respondeat superior, in the same manner and to the same extent as the liability of private persons under that doctrine were measured and limited in the various states."

To like effect, see McCall v. United States, supra; Chapin v. United States, supra; United States v. Eleazer, supra.

Thus, the trial court properly determined that the issue of liability in this case is governed by the Missouri law of respondeat superior applicable to private employers.

Judge Oliver, who tried this case, determined that under the Missouri law of respondeat superior an employer is liable for a negligent act of his servant only if "`the right of the employer to control the physical acts or movements of the employee at the very moment of the occurrence,' is established as a necessary element of plaintiff's cause of action." Riggs v. Higgins, en banc, 341 Mo. 1, 106 S.W.2d 1; Reiling v. Missouri Ins. Co., 236 Mo.App. 164, 153 S.W.2d...