Calvary v. United States

• Decision Date: 02 January 1973
• Docket Number: No. C-72-161.,C-72-161.
• Citation: 355 F. Supp. 805
• Parties: Verlon S. CALVARY, widow of Billy H. Calvary, Deceased, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Tennessee

355 F. Supp. 805

Verlon S. CALVARY, widow of Billy H. Calvary, Deceased, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-72-161.

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

January 2, 1973.

James C. Blackburn, Memphis, Tenn., for all plaintiffs.

Callis L. Childs, Asst. U. S. Atty., J. N. Raines, Asst. U. S. Atty., Memphis, Tenn., for defendant.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

WELLFORD, District Judge.

This action was brought by plaintiffs for the alleged wrongful death of Billy H. Calvary and damages to the tractortrailer unit in which he was travelling, all of which was allegedly caused by the negligence of defendant's employee, Raymond G. Thompson, a Private First Class in the United States Army. Jurisdiction is invoked pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346. The United States has moved for summary judgment on the basis that "Raymond G. Thompson was on official military leave", "was not acting in the regular course of his employment in the United States Army," and, therefore, was not "acting as the United States' agent, employee or servant within the meaning of the Federal Tort Claims Act".

Although 28 U.S.C. § 1346 allows an individual to bring an action against the United States for wrongful death or damages caused by an employee of the United States, that section limits the right to those instances where the employee caused such injuries:

"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." 28 U.S.C. § 1346(b).

The phrase "while acting within the scope of his office or employment" is defined as "acting in the line of duty" insofar as it is applied to members of the military or naval forces of the United States. 28 U.S.C. § 2671. However, the words "line of duty" within § 2671 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 (1955); Bissell v. McElligott, 369 F.2d 115 (8th Cir. 1966), cert. denied, 387 U.S. 917, 87 S. Ct. 2020, 18 L.Ed.2d 969 (1966). Thus, in determining whether the serviceman involved here was acting "within the scope of his office or employment", we must apply the state law of respondeat superior and decide the case as we conclude the state supreme court would decide the question.

The accident with which we are concerned here occurred in Arkansas. We, therefore, apply Arkansas law, and more particularly the Arkansas law of respondeat superior, in deciding this case. See Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1961); Glick v. Ballentine Produce, Inc., 343 F. 2d 839 (8th Cir. 1965), cert. denied, 382 U.S. 891, 86 S.Ct. 184, 15 L.Ed.2d 149 (1965); McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891 (1966).

On May 7, 1970, Pfc. Thompson, who was then stationed at Fort Hood, Texas, was reassigned to Fort Jackson, South Carolina prior to being shipped overseas. Thompson was ordered to report to Fort Jackson on June 8, 1970, and was authorized to take "30 days delay enroute authorized as leave providing it does not interfere with the reporting date". On May 12, 1970, five days after receiving his reassignment orders, Pfc. Thompson was enroute to his home in Ridgewood, New York, his leave address, where he intended to dispose of certain of his personal possessions and apparently intended to spend at least part of his leave. On May 12, 1970, Thompson became involved in an automobile accident near Forest City, Arkansas, which took his life and that of plaintiff's husband. It is admitted and uncontroverted that Thompson was on leave at the time of the accident, that he was enroute to his home for personal reasons, and that he was driving his personal automobile. On these facts, this Court must decide whether Thompson was acting within the scope of his "employment". Plaintiffs argue that since Thompson was travelling in a northeasterly direction towards his home in New York, he was also serving the dual government purposes of travelling towards South Carolina as directed and disposing of his personal belongings that the Army would not allow him to take overseas. Defendant asserts that respondeat superior under Arkansas law would not hold the government liable as Thompson's "employer".

There does not appear to be an Arkansas case directly controlling on similar facts to the instant case. However, plaintiffs and the government agree with the general statements on the Arkansas law of respondeat superior as expressed in United Transport v. Wilson, 228 Ark. 1058, 312 S.W.2d 191 (1958), where it was said:

"The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of the master. It is therefore necessary to see in each particular case what was the object, purpose, and end of the employment, and what was the object and purpose of the servant in doing that act complained of. The mere fact that he was in the service generally of the master . . . would not make the act attributable to the master. The act must have been done in the execution of the service for which he was engaged. And if the servant steps aside from the master's business to do an independent act of his own and not connected with his master's business, then the relation of master and servant is for such time, however short, suspended; and the servant, while thus acting for a purpose exclusively his own, is a stranger to his master, for whose acts he is not liable."

228 Ark. at 1060-1061, 312 S.W.2d at 192. The object, purpose and end of Thompson's employment was to perform the act of soldiering and all the functions and duties involved and directly related thereto. The difficult question in this case is to determine the object and purpose of Thompson while driving through Arkansas on May 12, 1970, as it related to his military duties.

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