Long v. United States

• Citation: 78 F. Supp. 35
• Decision Date: 25 May 1948
• Docket Number: No. 6112.,6112.
• Court: U.S. District Court — Southern District of California
• Parties: LONG v. UNITED STATES.

78 F. Supp. 35

LONG v. UNITED STATES.

No. 6112.

District Court, S. D. California, Central Division.

May 25, 1948.

Samuel Reisman, of Los Angeles, Cal., for plaintiff.

James M. Carter, U. S. Atty., and Clyde C. Downing and Max F. Deutz, Asst. U. S. Attys., all of Los Angeles, Cal., for defendant.

MATHES, District Judge.

Plaintiff seeks damages for personal injuries under the Federal Tort Claims Act, 28 U.S.C.A. §§ 921-946.

Two causes of action are asserted. In both it is alleged plaintiff's injuries were proximately caused by a civilian employee of the United States negligently driving an army staff car "so that the same was caused to collide with * * * the automobile in which the plaintiff was riding as a passenger * * *."

In one cause of action plaintiff pleads that at the time and place of the collision the civilian employee, one George Quinn, was operating the army staff automobile "in the course and scope of his employment or duties for the defendant * * *." In the other cause of action the comparable allegation is that Quinn was operating the army staff car "with the permission and consent of the defendant * * *." The answer of the United States joins issue on all these allegations.

The facts, as disclosed by stipulations and admissions of the parties and evidence adduced upon the trial, are as follows: George Quinn was employed by the War Department as a civilian driver. His station was an army camp near Riverside, California.

Early on Christmas Eve, 1945, Quinn was instructed to drive an army officer to the latter's home in El Monte, California. It was Quinn's duty to take the shortest and quickest route practicable, both going and returning to his station. Riverside is situated easterly from Los Angeles some 50 miles. El Monte lies between, some 15 miles east of Los Angeles, some 35 miles west of Riverside.

Quinn testified that after taking the officer to El Monte, he attempted to return to the Riverside camp, but lost his way in a fog. Shortly before midnight, while driving north on Broadway near 41st Street in Los Angeles, some 20 miles west and south of El Monte, Quinn negligently drove the staff car into the rear of an automobile in which plaintiff was a passenger, thus causing the injuries for which recovery is sought in this action.

Despite Quinn's denials, the facts are that he did not lose the way enroute to his station. Prior to employment by the Government, Quinn had been for many years a driver of public conveyances in Los Angeles and vicinity. After discharging his passenger at El Monte, he deliberately drove on to Los Angeles and to his mothers' home some 20 miles beyond his instructed destination. The collision occurred a few minutes after Quinn left his mothers' home to return to Riverside, following this Christmas Eve visit.

At the close of the evidence, the Government moved to dismiss the action for want of jurisdiction over the person of the defendant, urging that the United States has not consented to be sued in this court, by the Federal Tort Claims Act, 28 U.S.C.A. §§ 921-946, or otherwise, for injuries "caused by the negligence or wrongful act or omission" of a Government agent under the circumstances here shown.

28 U.S.C.A. § 931(a) provides that the district courts "shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States * * * on account of damage to or loss of property or on account of personal injury or death caused by the negligence 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 for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. * * *"

By tests which the courts of California apply, it is clear that Quinn was not "acting within the scope of his office or employment" as a civilian driver for the War Department of the United States at the time and place of his negligent conduct Loper v. Morrison, 1944, 23 Cal.2d 600, 145 P.2d 1; Gordoy v. Flaherty, 1937, 9 Cal.2d 716, 72 P.2d 538.

Even so, plaintiff urges, the Government has consented by 28 U.S.C.A. § 931(a) to be sued "under circumstances where * * * a private person, would be liable to the claimant" under any law of the place where the injury occurred; and a private owner of the motor vehicle involved in the case at bar would be liable under California's "permissive use" statute, § 402, Calif. Vehicle Code, for plaintiff's damages to the extent of $5,000.

Section 402 of the California Vehicle Code provides in part: "Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages."

As plaintiff points out, this California statute imposes liability without regard to the doctrine of respondeat superior. Assuming then that § 402 of the California Vehicle Code would apply...