Bissell v. McElligott

• Decision Date: 21 December 1965
• Docket Number: 14796-1.,No. 14788-1,14788-1
• Citation: 248 F. Supp. 219
• Parties: Bonnie J. BISSELL, and Linda Kay Bissell, by their Guardian, Mildred Durbin, and Mildred Durbin, Plaintiffs, v. Edmond J. McELLIGOTT, as Substitute Administrator of the Estate of Leon Tompkins, deceased, and United States of America, Defendants. Sylvia Lynn GAMPHER and Steven Glen Gampher, by and through their duly appointed next friend, Loyd Gampher, and Loyd Gampher, Plaintiffs, v. Edmond J. McELLIGOTT, Administrator of the Estate of Leon Tompkins, Deceased, and United States of America, Defendants.
• Court: U.S. District Court — Western District of Missouri

248 F. Supp. 219

Bonnie J. BISSELL, and Linda Kay Bissell, by their Guardian, Mildred Durbin, and Mildred Durbin, Plaintiffs, v. Edmond J. McELLIGOTT, as Substitute Administrator of the Estate of Leon Tompkins, deceased, and United States of America, Defendants.

Sylvia Lynn GAMPHER and Steven Glen Gampher, by and through their duly appointed next friend, Loyd Gampher, and Loyd Gampher, Plaintiffs, v. Edmond J. McELLIGOTT, Administrator of the Estate of Leon Tompkins, Deceased, and United States of America, Defendants.

Nos. 14788-1, 14796-1.

United States District Court W. D. Missouri, W. D.

December 21, 1965.

Alan B. Slayton, Independence, Mo., Tom B. Kretsinger, Kansas City, Mo., for plaintiffs.

Richard A. Rubins, Kansas City, Mo., for McElligott. F. Russell Millin, U. S. Atty., Kansas City, Mo., John L. Kapnistos, Asst. U. S. Atty., for defendants.

JOHN W. OLIVER, District Judge.

These consolidated cases pend on defendant United States' motion for summary judgment. Pursuant to the stipulation of the parties, we are also required to rule the separated issue of scope of employment.

Difficulties during pre-trial proceedings required that this case be set for hearing. The day before the hearing, however, the parties were able to enter into the stipulation that was the subject of much pre-trial discussion. That stipulation provided that "the specific issue of scope of employment may be decided by the Court at this time on the basis of the exhibits, documents, affidavits, Air Force records pertaining to Leon Tompkins, and authorities to be submitted in defendant's motion for summary judgment, and plaintiffs' briefs and documents and/or exhibits, and further identified by Exhibit Nos. 1 through 12 as Defendants' Exhibits and 1 through 5 as Plaintiffs' Exhibits."

It was further stipulated "that the Court may proceed in this determination pursuant to the provisions of Rule 42(b) of the Federal Rules of Civil Procedure." We proceed to do so.

The following three paragraphs quoted from the stipulation set forth the detailed factual situation:

These causes of action arise from an automobile accident between the plaintiffs and Leon Tompkins that took place on June 23, 1963 at about 6:15 p. m. in Jackson County, Missouri, on U.S. 40 Highway, approximately one-half mile east of the intersection of U.S. 40 Highway and Noland Road, Kansas City, Jackson County, Missouri. Leon Tompkins was a Government employee, a member of the United States Air Force, driving his personally owned 1958 Oldsmobile Sedan, which he was authorized to use at his election, in an easterly direction on 40 Highway, and the other driver, Eugene E. Bissell, was driving a 1954 Buick in a westerly direction on 40 Highway. Both cars came into contact with each other in a headon collision resulting in the death of Leon Tompkins, Eugene Bissell, Maxine Gampher, and Susan Gampher, and injuries to Steven Gampher, Linda Kay Bissell, and Sylvia Gampher. Leon Tompkins was alone in his automobile, and all of the other above-mentioned parties were passengers in the vehicle being driven by Eugene Bissell.

It is further stipulated and agreed that Leon Tompkins was permanently assigned to duty at the Chanute Air Force Base, Rantoul, Illinois, and by special TDY order No. T-1562, issued by the Headquarters Chanute Technical Training Center, 14 May, 1963, Tompkins was to proceed to the Sheppard Air Force Base, Texas, on or about May 19, 1963, for a period of temporary duty, including travel time of 36 days. Tompkins was to report no later than 0800 hours 21 May 1963 at the Sheppard Air Force Base, Texas. He had four days authorized travel time. Tompkins departed Chanute Air Force Base on 17 May 1963, he reported to the Sheppard Air Force Base at 0920 hours on 21 May 1963, he completed his training course at Sheppard Air Force Base, Texas on 21 June 1963, and signed out from that Base on June 22, 1963. He left Sheppard Air Force Base at 1530 hours; or 3:30 p. m., on June 22, 1963, and traveled to Topeka, Kansas, and arrived at Topeka, Kansas, at about 3:00 a. m. June 23, 1963. He spent about 12 hours in Topeka, Kansas where he lodged and dined with his wife and then left Topeka, Kansas at about 3:00 p. m. on June 23, 1963, and drove to Kansas City, Missouri, where he visted his mother-in-law, Dorothy Johnson, 2402 Tracy Street, in Kansas City. He arrived at Mrs. Johnson's home at about 4:00 p. m. June 23, 1963 and departed approximately 1½ hours later. He was subsequently involved in the automobile accident with Eugene Bissell at about 6:15 p. m. on June 23, 1963, on Highway 40 in Jackson County, Missouri.

It is further stipulated and agreed that travel orders, as set out in defendants' Exhibit No. 1, are true and correct. Tompkins received an advance of travel allowances, $84.00 in cash on May 16, 1963, figured at the rate of five cents a mile for 1,680 miles, designated as "monetary ALWS (allowances) in lieu of TRANSP to Sheppard AFB Tex and return Chanute." He further received $30 for TDY per diem at the rate of $1.00 a day on Travel Voucher or subvoucher from 22 May 1963 to 20 June 1963; said travel voucher or subvoucher executed by Leon Tompkins June 21, 1963.

Briefs filed during the pretrial proceedings and filed before the hearing indicated that none of the parties' attention was focused on the real legal question involved. One plaintiff, for example, stated in one of the pretrial briefs that "Myers v. United States, W.D.Mo.1963, 219 F.Supp. 71, affirmed 8 Cir., 331 F.2d 591, a decision by Chief Judge Becker, "is a case which is almost exactly in point on all of the major issues involved in the case at bar." Both at pre-trial and throughout the hearing we expressed our failure to understand why both sides were directing attention "to federal cases involving the law of states other than Missouri" and why there was an obvious "paucity of citation of authority by both sides as to Missouri cases" (Tr. 29).

In order that justice be done, we, at the close of the hearing, afforded counsel for both sides an opportunity to file additional briefs because it was our expressed opinion that the cases submitted in earlier briefs "do not even come close to the point actually presented for decision" (Tr. 70).

The hearing was valuable not only because it prompted the parties to enter into the stipulation; it also served the purpose of clarifying the factual contentions of the parties.

On the issue of whether Sergeant Tompkins could be said to have been on leave, as distinguished from being on travel time, the parties stated their agreement that the Court must consider that he was on the fourth day of allowed travel time and that he was not on leave (Tr. 12-17).

The hearing also reflected the absence of any dispute about the fact "that Sergeant Tompkins had complete freedom to select the sort of transportation that he was to utilize to get back from Sheppard Air Base to his permanent station at Chanute Air Force Base" (Tr. 12-13). Pages 17 to 19 of the transcript reflect the further fact that "plaintiffs concede that no specific instructions were given Sergeant Tompkins as to how he was to drive the car or what route he was to take" (Tr. 19).

Pursuant to the leave granted at the time of the hearing, additional briefs filed by both parties have been filed and studied. We have reviewed all of the cases cited. We are of the opinion that the cases to which we made reference at the hearing (Tr. 44 to 71) require that we rule the separated issue in favor of the defendant United States and that defendant United States' motion for summary judgment be sustained.

The point of beginning is that this case must be ruled on the basis of Missouri law. Plaintiffs' reliance upon Chief Judge Becker's decision in Myers is misplaced. Chief Judge Becker ruled a question of Colorado law in that case.

Chief Judge Murrah in United States v. Mraz, 10th Cir. 1958, 255 F.2d 115 at 117 noted "the divergence in federal case law" and explained that such divergence was caused by the Congressional requirement that particular federal courts are required to follow controlling State authority in ruling Federal Tort Claims actions.

Ruling the familiar "scope of employment" question, controlled in that case by New Mexico law, Chief Judge Murrah explained that the results in particular Federal cases are different because the rationale of particular State courts rests on different theories. "There is doubtless a philosophical divergence," said Chief Judge Murrah, "in the theory that a master is not liable for the wrongful acts of his servant, unless done in respect to the very transaction out of which the injury arose, and the theory that a master is liable for his servant's negligent acts if done while engaged in the master's business and did not arise from some external, independent and personal motive on his part" (255 F.2d at 117).

Careful study of the Missouri cases convinces us that the rule of decision in Missouri falls within the first group of cases mentioned by Chief Judge Murrah and that the rule of decision in Colorado, as Chief Judge Becker held in Myers, falls in the second.

It is our judgment that the rule of decision in Missouri is established by the following cases: Hilsdorf v. City of St. Louis, 45 Mo. 94 (1869); Riggs v. Higgins, (Mo.Sup.Ct. en banc 1937) 341 Mo. 1, 106 S.W.2d 1 (1937); Vert v. Metropolitan Life Ins. Co., (Mo.Sup.Ct. en banc 1938) 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R. 1381; Reiling v. Missouri Ins. Co., (K.C.Ct.App.1941) 236 Mo.App. 164, 153 S.W.2d 79; Stokes v. Four-States Broadcasters, Inc., (Sup.Ct.Mo.1957) 300 S.W. 2d 426; Kickham v. Carter, (Mo.Sup.Ct. 1960) 335 S.W.2d 83; and Usrey v. Dr. Pepper Bottling Co., (Sup.Ct.App.1964) 385 S.W.2d 335.

We quoted at the hearing (Tr. 62) Judge Bland's recognition that the extent of an employer's liability had been subjected to revision by the Supreme Court of Missouri and that an employer can not, under the then...