Leonard v. United States, 5267

• Citation: 235 F.2d 330
• Decision Date: 23 June 1956
• Docket Number: No. 5267,5268.,5267
• Parties: Josephine LEONARD, Appellant, v. UNITED STATES of America, Appellee. A. Joseph WILLIAMS, Administrator of the Estate of Cora Mae Leonard, deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

235 F.2d 330 (1956)

Josephine LEONARD, Appellant, v. UNITED STATES of America, Appellee.

A. Joseph WILLIAMS, Administrator of the Estate of Cora Mae Leonard, deceased, Appellant, v. UNITED STATES of America, Appellee.

Nos. 5267, 5268.

United States Court of Appeals Tenth Circuit.

June 23, 1956.

Teno Roncalio, Cheyenne, Wyo., for appellants.

John G. Laughlin, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before BRATTON, Chief Judge, PHILLIPS, Circuit Judge, and ROGERS, District Judge.

ROGERS, District Judge.

The two causes here on appeal involve common questions of law and fact, were consolidated for trial by the trial court, and the appeals are before us on a consolidated record. Both cases were brought against the United States, under the Federal Tort Claims Act, 28 U.S.C. A. §§ 1346(b) and 2671 et seq., the first seeking damages for personal injuries to Josephine Leonard, the second for damages for the death of Josephine Leonard's minor daughter, Cora Mae Leonard, said to be caused by the negligence of an agent, servant and employee of appellee, acting within the scope of his employment.

The accident, from which proximately flowed the injuries and death, resulted from a collision between the vehicle owned and operated by appellant Josephine Leonard, and a vehicle owned by the United States and operated by one Frederick S. Williams, then a Sergeant of the United States Air Force assigned to duty with the AFROTC Detachment at the University of Wyoming. The situs of the collision was U. S. Highway Number 30, which runs in an Easterly-Westerly direction between Laramie and Cheyenne, Wyoming. The collision occurred July 1, 1953.

The lower court rendered judgment for the United States of America on the theory, first, that the driver of the government vehicle was not acting within the scope of his employment at the time of the accident, and secondly, that the appellants are barred from recovery as a result of the application of the doctrine of contributory negligence. Inasmuch as our ruling as to the first point is dispositive of the case, we will not consider the questions of negligence and contributory negligence.

The pertinent portions of applicable sections of the Federal Tort Claims Act, are as follows:

"Section 1346. United States as defendant

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"(b) Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and 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.

* * * * * *

"Section 2674. Liability of United States

"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.

* * * * * *

"Section 2671. Definitions

"As used in this chapter and sections 1346(b) and 2401(b) of this title, the term —

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"`Employee of the government\' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

"`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."

It will be seen from reading the above statutes that liability on the United States, under the Federal Tort Claims Act can only be predicated when the negligence of a government employee occurs while "acting within the scope of his office or employment". Section 1346(b), supra.

In order to determine whether Sgt. Williams was acting within the scope of his office or employment, some detail in the recitation of the facts concerning his status, activities and movements at the time surrounding the accident, is required.

For some months preceding the accident, Williams was a member of the United States Air Force, and assigned to the Air Force ROTC Detachment at the University of Wyoming, in Laramie. His duties with the Air Force consisted, in the main, of administrative work at the Detachment, keeping the records of the students enrolled in ROTC work, performing some services as a Drill Sergeant, and in teaching of classes in Air Force administration and supply. Permission, at times, was given enlisted personnel, including Williams, to use the Air Force vehicle to go to the Warren Air Force Base near Cheyenne, Wyoming, for supplies and for Post Exchange items, the latter being bought at the personal behest of other enlisted personnel. In the month of May, 1953, Sgt. Williams submitted an application for Air Observer training. This application was submitted to the Aviation Cadet Examining Board at Warren Air Force Base, Cheyenne. A notice that such applications would be received was distributed through Air Force channels to various units, including that stationed at the University of Wyoming. It is well, here, to state that general publicity to this activity was had through various civilian publications. Applicants were by no means limited to military personnel, and civilians were invited to apply for this training. The evidence indicates that the greater part of the applicants were civilians, rather than members of the Armed Forces. Sgt. Williams was not ordered to apply for this training, but did so of his volition, having in mind the ultimate personal reward to him of a commission as an officer in the Air Force of the United States. A physical examination was required in the course of processing Williams' application. Prior to the date of the accident, he had submitted himself voluntarily for such a physical examination at the Air Force Base. On June 23, 1953, Sgt. Williams received, through channels, a written notification that his application for Air Observer training had been returned from Lowry Air Force Base near Denver, Colorado, to Warren Air Force Base "for physical reasons". Williams was requested in that notification to return to the base at his convenience, to have these defects taken care of. On the date of the tragic accident, July 1, 1953, Sgt. Williams left Laramie, Wyoming, at about 7:00 o'clock in the morning, in a government-owned vehicle which was assigned to the Detachment, of which Williams was a member. He had the consent of his Commanding Officer to go that day to Cheyenne, and likewise had his Commanding Officer's consent to drive the vehicle in question. He went from Laramie to the hospital unit at the Warren Air Force Base, where he reported for and received an X-ray examination. This examination was concluded at approximately half past nine that morning. Williams thereupon went to the Recruiting Board at the Warren Air Force Base, and had a discussion with a Sergeant there, concerning his application. Following this conference, he went to the Base Post Exchange, drank a cup of coffee, purchased a pack of cigarettes and made enquiries of some civilian clerks in that establishment concerning some film for Williams' camera. Before leaving on this trip, Sgt. Williams had agreed with a fellow enlisted man that he would, in Cheyenne, pick up an AAA...