O'BRIEN v. United States

• Decision Date: 30 December 1964
• Docket Number: Civ. No. 1467.
• Citation: 236 F. Supp. 792
• Court: U.S. District Court — District of Maine
• Parties: James Joseph O'BRIEN, and Marion R. O'Brien, and Kevin O'Brien, by Father and Next Friend, James Joseph O'Brien, and Al Orr, Plaintiffs, v. UNITED STATES of America, Defendant.

236 F. Supp. 792

James Joseph O'BRIEN, and Marion R. O'Brien, and Kevin O'Brien, by Father and Next Friend, James Joseph O'Brien, and Al Orr, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 1467.

United States District Court D. Maine, N. D.

December 30, 1964.

Edward Stern, Bangor, Me., for plaintiff.

David G. Roberts, Asst. U. S. Atty., Bangor, Me., for defendant.

GIGNOUX, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 and 2674, to recover damages arising out of an automobile accident which occurred on October 14, 1963, in Aurora, Maine, between plaintiffs' car and a car owned and driven by Jackie C. Kisor, an Airman First Class in the United States Air Force. The parties have stipulated that the only liability issue is whether or not Kisor at the time of the accident was "acting within the scope of his * * * employment" within the meaning of the Federal Tort Claims Act, so that defendant was legally liable for his negligence.¹ They have further agreed that this issue be determined by the Court in advance of any trial on the question of damages.

There is no dispute as to the relevant facts. On August 28, 1963, Airman Kisor, a personnel clerk, who had been stationed with his family at Harmon Air Force Base, Newfoundland, received orders changing his permanent duty assignment to Walker Air Force Base, New Mexico. Kisor's orders authorized him to travel in his own automobile; provided for 13 days' travel time; granted him 30 days delay en route, chargeable to leave; and directed him to report for duty at Walker Air Force Base not later than November 28, 1963. His orders further stated that the travel directed was necessary in the military service; provided that if he used his own automobile he was to be reimbursed for his travel expenses at the rate of 6¢ per mile; and granted him one month's rental allowance to help meet the expenses incurred in the change of station.

Kisor left Harmon Air Force Base on October 12, 1963, driving his own automobile and accompanied by his family. The accident occurred two days later while he was passing through Aurora, Maine. Although at the time of the accident he was on the direct route from Harmon Air Force Base to Walker Air Force Base, he was planning to take his wife, who was pregnant, to Milwaukee, Wisconsin, to stay at her parents' home, because her doctor had told her not to travel after November 1st. Aurora, Maine, is also on the direct route from Harmon Air Force Base to Milwaukee.

The parties agree that, as the accident happened in Maine, the law of Maine controls in determining whether Kisor was acting within the scope of his employment. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955).² They also agree that there is no Maine case directly in point, as is to be expected because of the unique relationship between the Government and its military personnel and the fact that the Federal Tort Claims Act requires all suits such as this one to be brought in a federal court. 28 U.S.C. § 1346(b), supra, n. 1. Nor has the research of counsel and the Court disclosed any Maine case involving the analogous question of the liability of a private employer for the negligence of an employee while travelling from one permanent place of employment to another.

Both parties attempt to draw support from cases decided by federal courts throughout the country arising from accidents involving servicemen travelling by privately owned automobile between permanent duty stations. These cases, however, are of little help, both because of the different factual situations presented and because they have applied the law of other states or, in some instances before Williams v. United States, supra, federal law. Furthermore, they are conflicting. Generally, these cases have imposed liability upon the Government when the serviceman at the time of the accident was in travel status proceeding directly from his former to his new duty station. Cooner v. United States, 276 F.2d 220 (4th Cir. 1960); Hinson v. United States, 257 F.2d 178 (5th Cir. 1958); United States v. Mraz, 255 F.2d 115 (10th Cir. 1958); cf. Sample v. United States, 178 F.Supp. 259 (D.C.Minn. 1959); Satterwhite v. Bocelato, 130 F. Supp. 825 (E.D.N.C.1955); Purcell v. United States, 130 F.Supp. 882 (N.D. Cal.1955); Whittenberg v. United States, 148 F.Supp. 353 (S.D.Tex.1956) (civilian employee). Under similar conditions, however, other courts have reached the opposite conclusion. Chapin v. United States, 258 F.2d 465 (9th Cir. 1958), cert. denied, 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed.2d 627 (1959); United States v. Sharpe, 189 F.2d 239 (4th Cir. 1951); cf. Jozwiak v. United States, 123 F.Supp. 65 (S.D.Ohio 1954) (civilian employee). On the other hand, in most cases the courts have refused to hold the Government liable when the accident occurred while the serviceman was on leave or in delay en route status. United States v. Eleazer, 177 F. 2d 914 (4th Cir. 1949), cert. denied, 339 U.S. 903, 70 S.Ct. 517, 94 L.Ed. 1333 (1950); Noe v. United States, 136 F. Supp. 639 (E.D.Tenn.1956); cf. Kunkler v. United States, 295 F.2d 370 (5th Cir. 1961) (deviation). To the contrary, however, is United States v. Kennedy, 230 F.2d 674 (9th Cir. 1956);³ cf. Marquardt v. United States, 115 F.Supp. 160 (S.D.Cal.1953) (civilian employee). Because of the different facts involved and the differences in the laws of the several states in which they have arisen, no good purpose will be served by further discussion of these federal cases. This case must be decided upon its own facts and is governed by Maine law.

Since there is no Maine case directly in point, this Court must determine whether on the facts presented the Supreme Judicial Court of Maine would hold that Kisor was acting within the scope of his employment at the time of the accident, so that the Government was liable for his negligence under the doctrine of respondeat superior. Defendant strenuously urges that the Maine court would not impose liability on these facts because the Government was indifferent to the route and method of travel Kisor chose and exercised no control over the details of his driving; and because Kisor's use of his own automobile to transport him and his family to his new duty station was entirely for his own convenience and served no governmental purpose. The Court cannot agree. As this Court reads the decided Maine cases involving application of the doctrine of respondeat superior in comparable circumstances, they require a holding that the Government is liable for Kisor's negligence under the facts of this case.

Whatever the law may be in other jurisdictions, the Maine case of Frenyea v. Maine Steel Prods. Co., 132 Me. 271, 170 A. 515 (1934) makes clear that under Maine law control over the manner or means of performing the particular task in which the servant is engaged is not decisive to the master's liability for the servant's negligence if what the servant is doing is in furtherance of the master's business. In the Frenyea case a mechanic employed by the defendant in its plant at South Portland, Maine, had been sent to Vermont to assist in the installation of deflectors upon snowplows which had been sold by the defendant to the State of Vermont. The Vermont Highway Department loaned the mechanic a Ford truck for his use in this work. There was no evidence that the defendant was even aware that its mechanic was driving a truck or that it exercised any control over his operation of it. While driving the truck to a town in which he was to attach a deflector, the mechanic was involved in an automobile accident. On these facts the court held that the jury committed no error in reaching the conclusion that the mechanic was acting within the scope of his employment by the defendant at the time of the accident. It said,

"Nor can the plaintiff be denied a recovery because the defendant's servant used a means of transporting its deflectors which it had not intended or contemplated. When the collision occurred, the road mechanic was using the truck not for his own purpose or those sic of the state of Vermont, but to perform a part of the service which he had been directed to render. This could properly be found to be within the scope of his employment. If so, his master is liable." (Citations omitted.) Id. at 276, 170 A. at 517.

In so holding, the Maine court was reaffirming the strong dictum in the earlier case of Maddox v. Brown, 71 Me. 432 (1880), in which it stated,

"The master is liable to third persons for all damages resulting from the negligence of his servants, acting under his orders, or in the course of his business. Specific directions are not required. It is sufficient if the act was one within the range of the servant's employment. The general rule, as judicially declared in England, is that the master is answerable for every wrong of his servant committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved." (Citations omitted.) Id. at 433.

It is evident from the Frenyea case that under Maine law lack of control by the master over the details of the servant's driving is immaterial to the application of the doctrine of respondeat superior; under Maine law it is sufficient if the servant is engaged at the time in serving a purpose of the master.⁴ But even if Maine law did require a showing that the details of the servant's driving are subject to the master's control, the necessary element of control is present in this case. It is the right to control, not the exercise of it, that is important for the application of the doctrine of respondeat superior. Seavey, Law of Agency § 84, at 142 (1964); cf. Kirk v. Yarmouth Lime Co., 137 Me. 73, 76-77, 15 A.2d 184 (1940); Murray's Case, 130 Me. 181, 185, 187, 154 A. 352, 75 A.L.R. 720 (1931); Mitchell's Case, 121 Me. 455, 461, 118 A. 287, 33 A.L.R. 1447 (1922); R...