Courtright v. Pittman

• Decision Date: 18 January 1967
• Docket Number: Civ. A. 66-C-47.
• Citation: 264 F. Supp. 114
• Parties: Hazel E. COURTRIGHT and Leslie Courtright, Plaintiffs, v. Alfred PITTMAN and the United States of America, Defendants.
• Court: U.S. District Court — District of Colorado

264 F. Supp. 114

Hazel E. COURTRIGHT and Leslie Courtright, Plaintiffs, v. Alfred PITTMAN and the United States of America, Defendants.

Civ. A. 66-C-47.

United States District Court D. Colorado.

January 18, 1967.

Kripke, Hoffman & Friedman, by Daniel S. Hoffman, Denver, Colo., for plaintiffs.

White & Steele, by Lowell White, Denver, Colo., for defendant Alfred Pittman.

Lawrence M. Henry, U. S. Atty., by Robert E. Long, Asst. U. S. Atty., Denver, Colo., for defendant United States of America.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

This matter is before the Court on the motion of defendant United States of America for summary judgment. The sole question presented by the motion is whether defendant Alfred Pittman, a serviceman in the United States Army, was acting "within the scope of his employment" at the time of his automobile collision with the plaintiff. If he is found not to have been acting within the scope of his employment, the United States cannot, as a matter of law, be held liable in this action.

The applicable statute is the Federal Tort Claims Act, Title 28 U.S.C. §§ 1346 (b), and 2671, which provides in pertinent part as follows:

§ 1346(b)

The district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on or after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government 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.

* * * * * *

§ 2671

* * * 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 the line of duty.

The significant facts in the present case are as follows. On August 11, 1964 defendant Pittman received orders transferring his permanent duty station from Fort Wainwright, Alaska, to Fort Carson, Colorado. His orders provided that he would receive thirteen days traveling time if he used a privately owned vehicle, and an additional thirty days of leave or "delay on route" time. He was to report for duty at Fort Carson by November 8, 1964. His orders further provided that he would receive a mileage allowance of 6 cents per mile.

Pittman left Fort Wainwright on September 30, and en route his car became disabled. He had to remain in Torust, Canada, for two weeks while awaiting repairs. When the repairs were completed, he continued on toward Fort Carson via a direct route, and it was on October 24, 1964, near Castle Rock, Colorado, that he was involved in the accident which gave rise to this action.

There are numerous cases concerned with the specific question posed by this motion: Whether a serviceman who is traveling from one duty station to another is acting within the scope of his employment. It is clear that the question of whether the United States can be held liable as a master under the doctrine of respondeat superior is one to be decided on the basis of the state law. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955). Since the accident in the present case took place in Colorado, the law of this state concerning respondeat superior should govern.

All of the cases have, of course, been decided in the federal courts, and almost every opinion involves a process of distinguishing all of the other cases. For example, a decision finding the United States liable will distinguish cases which denied liability, on the basis that the latter involved servicemen who were on leave at the time of the accident. The rationale is that the serviceman on leave is acting solely in his own personal interest, that his time is his own and that he is not subject to the control of the military. This distinction was made in United States v. Mraz, 255 F.2d 115 (10th Cir. 1958); and in Myers v. United States, 219 F.Supp. 71 (W.D.Mo. 1963). Other courts, however, have held that even if the serviceman is on leave, liability may still be imposed on the government. These courts rely on the "dual purpose" principle of agency law. For example, in United States v. Kennedy, 230 F.2d 674 (9th Cir. 1950), the court said: "We thus have the situation where the soldier employee was both acting pursuant to his employer's direction and personally enjoying his vacation." In such a situation, where the servant has "dual purposes", the master can be held liable for the negligent acts of the servant. This principle was also applied in Cooner v. United States, 276 F.2d 220 (4th Cir. 1960).

Distinctions have also been drawn between cases where the serviceman is receiving or not receiving mileage allowance for his journey; and between cases where the serviceman is making a temporary transfer, as opposed to a transfer to a new permanent duty station. It is said that the serviceman is acting under the control and in behalf of his employer when he is making the temporary transfer, but that the permanent transferee is subject to less control and is acting primarily in his own behalf. See, e. g., Sample v. United States, 178 F.Supp. 259 (D.Minn.1959); and Myers v. United States, supra. This distinction does not appear to be a meaningful one; factually, the degree of control of the military is probably not much different whether the transfer is temporary or permanent.

Neither this Court nor, of course, the Colorado Supreme Court has rendered a decision in point on this question. There are two decisions in the Tenth Circuit, both at the Court of Appeals level. One case imposed liability on the United States, and the other denied liability. In Leonard v. United States, 235 F.2d 330 (10th Cir. 1956), the court applied Wyoming law and found that the conduct of the serviceman, who was not acting under specific military orders, was for non-military, personal purposes, and he was therefore not acting within the scope of his employment.

In the other Tenth Circuit case, United States v. Mraz, 255 F.2d 115 (10th Cir. 1958), the Court looked to the law of New Mexico and found the serviceman to have been within the scope of his employment at the time of the accident. The facts of that case are similar to those of the case at bar. An officer stationed in California received orders changing his permanent assignment of duty to New Mexico. The order authorized transportation by commercial carrier or by privately owned vehicle — but to arrive by March 5, 1954. If private transportation were used, four days travel time was allowed and mileage reimbursement was authorized. The officer left California on February 27 and had an accident in New Mexico on March 4.

Chief Judge Murrah wrote the opinion, in which he acknowledged the conflicting decisions, which he felt rested upon "controlling state authority, and the predilections of the court." In reconciling the decisions, however, he made this observation:

There is doubtless a philosophical divergence 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.

He went on to characterize the New Mexico law as being in the latter category, holding the master liable where the servant was engaged in the master's business and not acting for purely personal motives. Other decisions, which had denied the liability of the United States, were decided on the basis of the first philosophy, holding the master only where the very transaction inflicting the injury was done for the master. Such cases are United States v. Eleazer, 177 F.2d 914 (4th Cir. 1949); United States v. Sharpe, 189 F.2d 239 (4th Cir. 1951); and Bissell v. McElligott, 248 F.Supp. 219 (W.D.Mo.1965). Judge Murrah's characterization of this "philosophical divergence" in the case law has been seized upon by the Courts of Appeal in other circuits.

In Myers v. United States, 219 F.Supp. 71 (W.D.Mo.1963), the vehicular collision took place in Colorado, and the court looked therefore to the Colorado law of respondeat superior. In that case the defendant serviceman was traveling from a Delaware base to a California base, pursuant to orders. He was proceeding to a temporary duty station and was not on leave. He was also carrying government property in his car and was being compensated for his mileage by the United States.

The Missouri federal district court found that under the Colorado law of respondeat superior the serviceman was acting within the scope of his employment at the time of the accident. In summarizing the Colorado law the court said:

Under the law of Colorado, a master is liable for the acts of a servant, not only when they are directed by the master but also when the scope of his employment or trust is such that the servant has been left the liberty to do, while pursuing or attempting to discharge the employment or trust, the injurious act complained of. 219 F.Supp. at 78, citing Lovejoy v. Denver & R. G. R., 59 Colo. 222, 146 P. 263, L.R.A. 1915E, 888 (1915).

The court also cited Lombardy v. Stees, 132 Colo. 570, 290 P.2d 1110 (1955); and Cooley v. Eskridge, 125 Colo. 102, 241 P.2d 851 (1952).

In a later case, Bissell v. McElligott, 248 F.Supp. 219 (W.D.Mo.1965), the Missouri federal district court noted that in the Myers case the Colorado law was apparently viewed as coming within the more liberal of the two philosophies of respondeat superior enunciated by Judge Murrah in United States v. Mraz, supra. This is the test which allows a finding of vicarious liability whenever the servant is engaged in his master's business...