Davies v. U.S.

• Decision Date: 06 July 1976
• Docket Number: No. 75-1480,75-1480
• Citation: 542 F.2d 1361
• Parties: Patricia A. DAVIES, Administratrix of the Estate of James W. Davies, Deceased, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1361

542 F.2d 1361

Patricia A. DAVIES, Administratrix of the Estate of James W Davies, Deceased, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 75-1480.

United States Court of Appeals, Ninth Circuit.

July 6, 1976.

Shannon Stafford (argued), Guttormsen, Scholfield & Stafford, Seattle, Wash., for plaintiffs-appellants.

William H. Rubidge, Asst. U. S. Atty. (argued), Seattle, Wash., for defendant-appellee.

Before MOORE ^* and DUNIWAY, Circuit Judges, and TAYLOR, ^** District Judge.

MOORE, Circuit Judge:

Patricia A. Davies, Administratrix of the Estate of James W. Davies, appeals from a judgment of the United States District Court for the Western District of Washington, entered after a bench trial before Honorable Morell E. Sharp, U. S. D. J., which dismissed her complaint under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.; 28 U.S.C. § 1346, on the ground that the concededly negligent employee of the United States of America, Anthony C. Cajka, a Commander in the United States Navy, was not acting within the scope of his employment when he collided with a car being driven by the decedent, James W. Davies, Patricia's husband.

The only issue on appeal is whether Commander Cajka was acting within the scope of his employment at the time of the accident. In deciding the question, we are bound to apply the state law of Washington. 28 U.S.C. § 1346(b); McCall v. United States, 338 F.2d 589 (9th Cir.), cert. denied,380 U.S. 974, 85 S.Ct. 1334, 14 L.Ed.2d 269 (1965). Washington law compels affirmance of the lower court judgment for reasons which follow a recitation of the relevant facts as found by the lower court.

Commander Cajka was the project officer for the overhaul of a submarine which was berthed at the Puget Sound Naval Base in Bremerton, Washington. Cajka's normal working hours were 7:30 A.M. to 4:30 P.M., Monday through Friday, although it was not unusual for him to work overtime. The Navy provided him with an office at the shipyard.

On the day of the accident, Wednesday, March 22, 1972, Cajka left the shipyard at noon and drove to his home, roughly ten miles from the base, to prepare a briefing scheduled two days hence. He worked at home on the briefing until late afternoon when he left and drove to the Beachcomber Cafe in nearby Port Orchard, where he ate and drank until 9:30 P.M. Then he left the cafe and headed in the direction of Bremerton, "intending to retrieve a certain document he needed to prepare the briefing." When he had almost reached Bremerton he changed his mind and turned to return home, but before he reached there, he changed his mind for the second time and turned toward the shipyard. The accident occurred while he was headed for the base this second time. He negligently crashed his car into the car being driven by James W. Davies, which was occupied by his wife and child. A breathalyzer showed that Cajka was thoroughly drunk at the time. James Davies did not survive the accident.

As to Washington law, there is no dispute that the applicable standards were articulated in Greene v. St. Paul-Mercury Indemnity Co., 51 Wash.2d 569, 573, 320 P.2d 311, 314 (1958).

"The test adopted . . . for determining whether an employee is, at a given time, in the course of his employment, is whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer's interest."

The disagreement is whether the trip to the shipyard in the middle of the night was, as stated by the Greene court, supra, "in the furtherance of the employer's interest." The lower court held that it was not because it found that Cajka decided to work at home solely for his personal convenience. Contrary to appellant's assertion that finding is not clearly erroneous. The Navy had provided Cajka with on base facilities, and there was sufficient time to prepare the briefing during normal working hours, as it was not to occur for two working days.

Alternatively, appellant contends that the facts of the case bring it within exceptions to the general Washington rule that "commuting" to or from work is outside the scope of employment. She relies on Rice v. Garl, 2 Wash.2d 403, 98 P.2d 301 (1940); Carmin v. Port of Seattle, 10 Wash.2d 139, 116 P.2d 338 (1941). But even aside from the holding of Balise v. Underwood,71 Wash.2d 331, 428 P.2d 573, 577 (1967), that "the applicability of a recognized exception to the general rule becomes a question of fact", a close inspection of the cases relied upon by appellant indicates that the threshold consideration for application of the exception is unsatisfied. If the place of employment, as here, is relatively fixed then travel to and from work is not within the scope of employment and the exception is inapplicable. Rice, supra, 98 P.2d at 304; accord, Carmin, supra, 116 P.2d at 344. The mere possibility that Cajka might be called upon to commute to this job at any hour does not alter the conclusion.

Dicta in Balise, supra, 428 P.2d at 577, is not to the contrary. There the court, in reciting commuter rule exceptions, referred to an employee's "extraordinary status" which "required his constant availability and readiness for emergency or special assignment and reassignment between company projects." The absence of a single relatively fixed place of employment distinguishes that hypothesized exception from the facts...