Hinson v. United States

• Decision Date: 20 November 1957
• Docket Number: 1425-1427.,Civ. A. No. 1411
• Citation: 156 F. Supp. 831
• Parties: O. B. HINSON, Plaintiff, v. UNITED STATES of America, Defendant (two cases). Mrs. O. B. HINSON, Plaintiff, v. UNITED STATES of America, Defendant. Danny HINSON, a minor, by and through O. B. Hinson, as next friend, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Georgia

156 F. Supp. 831

O. B. HINSON, Plaintiff, v. UNITED STATES of America, Defendant (two cases).

Mrs. O. B. HINSON, Plaintiff, v. UNITED STATES of America, Defendant.

Danny HINSON, a minor, by and through O. B. Hinson, as next friend, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 1411, 1425-1427.

United States District Court M. D. Georgia, Macon Division.

November 20, 1957.

Buckner F. Melton, Roy B. Rhodenhiser, Jr., Andrew W. McKenna, Macon, Ga., for plaintiffs.

Frank O. Evans, U. S. Atty., Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., for defendant.

BOOTLE, District Judge.

These four civil actions grow out of one automobile collision and seek damages under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 and 2674. In Civil Action No. 1411 O. B. Hinson sues for his personal injuries and hospital and medical bills in the amount of $250,000; in Civil Action No. 1425 he sues for the loss of services of his minor son, Danny Hinson, also injured in the collision, and for said son's hospital and medical bills, claiming $1,000; in Civil Action No. 1426 Mrs. O. B. Hinson sues for loss of consortium consequent upon her husband's injuries in the amount of $50,000, and in Civil Action No. 1427 the son, Danny Hinson, by his father as next friend, sues for his personal injuries, claiming $10,000. The defendant in each case, The United States, is sought to be held liable for negligence alleged on the part of Godfrey F. Westcott, M.D., a Captain in the Medical Corps, United States Army.

At a pretrial conference it developed that the threshold issue in each case is whether Captain Westcott was acting within the scope of his office and employment and in line of duty at the time of the collision, and it was agreed and ordered that counsel would undertake to stipulate all of the facts pertaining to this issue and that if such stipulation could be accomplished the Court would, upon the basis thereof and upon written arguments, pass upon that question before and without hearing evidence on the question of negligence and extent of injuries. The stipulation has been entered into and appears in the footnote,¹ minus the Army's active duty order and the Army Regulations No. 35-3035 (Travel and Transportation Allowances of Service Members—Permanent Change of Station) therein referred to, the substance of said order and regulations being sufficiently set forth in the stipulation.

The stipulated facts stated more succinctly are: Westcott, a medical doctor, was sworn in as a Captain in the Medical Corps, U. S. Army Reserve on September 5, 1956. By written order of the same date received by him on or before September 28, 1956 (Exhibit A attached to stipulation), he was ordered to active duty, said active duty and pay therefor to be effective September 28, 1956, and he was ordered to proceed from his home at Central State Hospital, Petersburg, Virginia and to report to duty at the Army Medical Service School, Fort Sam Houston, Texas as his initial duty station not later than October 8, 1956. Said order authorized, but did not direct, travel by privately owned conveyance. The selection of the mode and route of travel was left with him. The Army was obligated to pay him for his travel on a mileage basis in accordance with Army Regulations 35-3035 (Exhibit B to stipulation) irrespective of the mode of travel actually selected and used by him. The important consideration to the Army was that he report to Fort Sam Houston, Texas by October 8, 1956 for duty. Captain Westcott decided to travel by private vehicle and was proceeding along Georgia Highway No. 49 in Bibb County, Georgia on October 2, 1956 in his 1948 Packard automobile at the time his vehicle was involved in a collision with a 1950 Mercury being driven by plaintiff, O. B. Hinson. Captain Westcott was traveling alone in his Packard automobile at the time of the collision and was not transporting any property of the United States and since leaving Virginia had not engaged in any type of work except driving the Packard automobile as aforesaid.

I find the facts to be as stipulated.

The Government contends that on these facts it cannot be held liable under the Tort Claims Act because at the time and place of the collision Westcott was not acting within the scope of his employment. Section 1346 of Title 28 U.S.C.A. in pertinent part says that the United States shall be liable "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." (Emphasis supplied.) Section 2671 says that "`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 line of duty," and Section 2674 says that "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

The "in line of duty" phrase of this statute does not broaden the basis of liability beyond the area circumscribed by the restrictive words "within the scope of his office or employment." Cannon v. United States, 5 Cir., 243 F.2d 71 (1); United States v. Campbell, 5 Cir., 172 F.2d 500; United States v. Eleazer, 4 Cir., 177 F.2d 914(5). This case must be governed by the Georgia doctrine of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L. Ed. 761; Cannon v. United States, supra. The pertinent Georgia statute reads: "Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." Section 108, Title 105, Georgia Code Annotated.

The decisions of the Georgia courts recognize that the statutory phrase "within the scope of his business" is not capable of precise definition, but must be determined by an examination of the facts and circumstances, the character of the employment and the nature of the wrong, Dawson Motor Company v. Petty, 53 Ga.App. 746, 750, 186 S.E. 877, and that the test of liability is not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of his employment. Gomez v. Great Atlantic & Pacific Tea Co., 48 Ga.App. 398, 400, 172 S.E. 750. Thus Greeson v. Bailey, 167 Ga. 638, at page 640, 146 S.E. 490, at page 491, quotes approvingly from Judge Thompson in his Commentaries on the Law of Negligence, Volume 1, Section 526:

"`The test by which to determine whether the master is liable for the tortious act of his servant is not whether it was done during the existence of the employment, that is to say, during the time covered by the employment, but whether it was done in the prosecution of the master's business. Upon this subject it has been said: "In determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself and as his own master pro tempore, the master is not liable. If the servant steps aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities."'"

and Graham v. Cleveland, 58 Ga.App. 810, at page 813, 200 S.E. 184, at page 186, quotes approvingly from the late Judge Taft in Byrne v. Kansas City, Ft. S. & M. R. Co., 6 Cir., 61 F. 605:

"`The question is one of agency. The result is determined by the answer to the further questions, whose work was the servant doing? and, under whose control was he doing it?'"

The Georgia cases hold generally that an employee who is on his way to work is not acting within the scope of his employment. Elrod v. Anchor Duck Mills, 50 Ga.App. 531(1), 179 S.E. 188; Stenger v. Mitchell, 70 Ga.App. 563, 566, 28 S.E.2d 885; Lewis v. Miller Peanut Company, 77 Ga.App. 380, 384, 49 S.E.2d 221, 223. The last cited case expresses it this way, "* * * ordinarily an employee who is on his way to work is not acting within the scope of his employment, as he has not yet commenced to attend to the business of his employer." See also 52 A.L.R.2d page 354. While in the recent case of Moye v. United States, 5 Cir., 218 F.2d 81, the Air Force enlisted man was driving his privately owned automobile to lunch rather than to work at the time of the collision, the Court wrote, on page 83:

"Where, as here, the car is the private car of the employee, no control whatever is assumed over, and no direction given to, the employee, in connection with his going to and from his work or to and from his meals or on other personal missions in it, and there is no evidence or even claim that he was expected to use, or did use, it on the business of his employer, it is generally the rule, and especially in Texas, that for his acts during such periods and in such circumstances, his employer is not liable." (Emphasis supplied.)

While no Georgia decision has been cited involving the very facts of the instant case, the Georgia cases above cited are in line with the holding of several cases from other jurisdictions which have been summarized by the editors of American...