Marquardt v. United States

• Decision Date: 12 August 1953
• Docket Number: No. 13407,13408.,13407
• Citation: 115 F. Supp. 160
• Parties: MARQUARDT et ux. v. UNITED STATES (STROHECKER, Third-Party Defendant). SCALLON v. UNITED STATES (STROHECKER, Third-Party Defendant).
• Court: U.S. District Court — Southern District of California

115 F. Supp. 160

MARQUARDT et ux. v. UNITED STATES (STROHECKER, Third-Party Defendant).

SCALLON v. UNITED STATES (STROHECKER, Third-Party Defendant).

Nos. 13407, 13408.

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

August 12, 1953.

Frank D. Fitzgerald and Louis P. Friedman, Los Angeles, Cal., for plaintiffs.

Walter S. Binns, U. S. Atty., Los Angeles, Cal., for defendant and third-party plaintiff.

Parker, Stanbury, Reese & McGee, Los Angeles, Cal., for third-party defendant.

HARRISON, District Judge.

In the trial of this Federal Tort Claims action by stipulation of the parties, the court first tried the issue as to whether the accident occurred in the course of employment of a federal employee named Strohecker. This issue was submitted to the court on a stipulation of facts and a limited amount of oral testimony. The stipulation of facts discloses that Strohecker in his employment with the Corps of Engineers, required him to travel from time to time to the various army installations included in the Los Angeles District. This District includes the southern part of the State of California, the State of Arizona, and part of the State of Nevada. Said official travel by Strohecker, occurring on an average of six times per year, had been for temporary duty extending for periods ranging from one day to one month, Strohecker returning to the Los Angeles office upon completion of each temporary assignment.

Early in January of 1951, Strohecker obtained permission to take several days of annual leave, for the purpose of attending the graduation of his son from college at Glendale, Arizona, a suburb of Phoenix, situated on U. S. Highway 60-70. Shortly thereafter it became necessary to send Strohecker to Fort Huachuca, Arizona, for thirty days to perform work on a "rush" military project. To avoid cancelling Strohecker's leave plans and at the same time get him on the job at Fort Huachuca one day earlier, Strohecker was authorized to travel by his own automobile from Los Angeles to Fort Huachuca and return to Los Angeles by train. The motor vehicle routes to Glendale, Arizona, and to Fort Huachuca coincide, so that in traveling on his own business to Glendale Strohecker would at the same time further the Government's interest by making part of the trip to his temporary post at Fort Huachuca.

Strohecker was authorized a per diem and traveling expenses, equal to the cost of travel by train. Such allowance is authorized only if the employee is engaged on official business. Title 5 U.S. C.A. § 837. Standardized Government Travel Regulations, as amended, effective October 1, 1950, § 2, § 12a(1).

Strohecker was to report for duty at Fort Huachuca on the morning of the 1st of February, 1951. He left Los Angeles for Arizona on the evening of January 29, 1951, driving his own automobile. January 30 and 31 were to have been charged against his annual leave time. The train which arrived at Fort Huachuca on February 1, 1951 departed Los Angeles the night of January 31, 1951.

The collision occurred in Arizona on January 30, 1951, at a point on Highway 60-70 approximately 150 miles short of Glendale, Arizona.

These facts present a case of first impression as to whether a government employee is in the scope of his office or employment under the Federal Tort Claims Act, 28 U.S.C.A., §§ 1346, 2671 et seq., when he is traveling in his own automobile to an official work assignment and at the same time is traveling toward a personal destination en route.

There appears to be a conflict among the circuits as to whether the scope of office or employment of a government employee is to be determined in accordance with State or Federal law. See United States v. Lushbough, 8 Cir., 1952, 200 F.2d 717, 720. This circuit has applied State law in determining this question; Murphey v. United States, 9 Cir., 1950, 179 F.2d 743; United States v. Johnson, 9 Cir., 1950, 181 F.2d 577; and United States v. Wibye, 9 Cir., 1951, 191 F.2d 181. The Sixth Circuit seems to be in accord in Christian v. United States, 6 Cir., 1950, 184 F.2d 523. The Fourth Circuit, in two carefully reasoned opinions by Judge Parker, has held that local law is not applicable for the purpose of determining the relationship of the government to its employees. United States v. Eleazer, 4 Cir., 1949, 177 F.2d 914; and United States v. Sharpe, 4 Cir., 1951, 189 F.2d 239. See Williams v. United States, D.C.N.D.Cal. 1952, 105 F.Supp. 208, in which a district court in the Ninth Circuit followed the rule of the Fourth Circuit in refusing to apply a state permissive use statute, in spite of the implicitly contra decisions of the Ninth Circuit. Other indications that local law is not applicable may be found in Hubsch v. United States, 5 Cir., 1949, ...