McCall v. United States

• Decision Date: 25 November 1964
• Docket Number: No. 19164.,19164.
• Citation: 338 F.2d 589
• Parties: Paulyne B. McCALL, as the Administratrix of the Estate of Virgil C. McCall, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

338 F.2d 589 (1964)

Paulyne B. McCALL, as the Administratrix of the Estate of Virgil C. McCall, Deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 19164.

United States Court of Appeals Ninth Circuit.

November 25, 1964.

Horton Smith, Rocky V. Lindell, Smith, Lindell, Krutch, Carr & Poliak, Seattle, Wash., for appellant.

William N. Goodwin, U. S. Atty., Robert C. Williams, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before HAMLIN, JERTBERG and DUNIWAY, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant appeals from a judgment of dismissal entered in favor of the United States in an action brought against the United States in the District Court for the Western District of Washington, Northern Division, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Jurisdiction of the District Court was based on 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671 et seq. This court has jurisdiction under 28 U.S.C. § 1291.

The facts are not in dispute. On March 31, 1963, one Ray E. Grantham, an enlisted man with a rating of Storekeeper 1st Class, in the United States Navy, while traveling in his own automobile from his home in Hayward, California, to Bremerton, Washington, struck and killed one Virgil C. McCall who was then engaged in changing a tire on the shoulder of the Tacoma-Seattle Freeway in the State of Washington. The United States has not, and does not, contest the fact that the negligence of Grantham in the control and operation of his automobile proximately contributed to the cause of McCall's death.

Following trial to the District Court, the court found as a fact, and concluded as a matter of law, that Grantham was not acting within the scope of his employment as an employee of the United States at the time and place of the accident which resulted in McCall's death, and accordingly entered judgment dismissing appellant's action with prejudice.

The record discloses that Grantham had enlisted in the United States Navy for a period of six years on April 14, 1961, and that in the early part of 1963 he was serving on board the USS CORAL SEA, moored at Alameda, California. He was approached by a shipmate who told him of a Storekeeper 1st Class, one Pedro Dela Cruz, then serving aboard the USS BON HOMME RICHARD, docked at Bremerton, Washington, who desired duty aboard the USS CORAL SEA for personal reasons. Grantham, on the other hand, wished to transfer to the USS BON HOMME RICHARD because the USS CORAL SEA was going overseas and he desired to remain closer to his family. After learning of the possibility for the exchange, Grantham initiated a special request through his division officer requesting an exchange of duty with Dela Cruz pursuant to the Navy's "no cost transfer" or "SWAP" program. That program is defined in the Navy's Enlisted Transfer Manual, Chapter 16, as follows:

"16.11 Definition

"A no cost transfer is defined as a personnel movement authorized for the convenience of the individual involved, and effected at no expense to the Government. Government transportation for the man, his dependents and household effects is not authorized, nor is payment of a dislocation allowance. Such transfers must be effected during periods of leave (except for hospital patients) and no proceed time or travel time is authorized."

As required by Chapter 16 of the Enlisted Transfer Manual, Grantham's letter request contained, in part, this statement: "I understand that if my transfer in exchange is authorized it will be as a result of my own request for my personal convenience, and it is to be made at no cost to the Government."

The requests of Grantham and Dela Cruz were approved and each was issued a transfer order. The transfer order issued to Grantham granted him fifteen days leave, at the expiration of which he was to report on board the USS BON HOMME RICHARD. The transfer order contained the following typewritten caveat:

"NO EXPENSE TO THE GOVT IS AUTHORIZED IN CONNECTION WITH THESE ORDERS, IN CASE YOU DO NOT DESIRE TO BEAR THE EXPENSE YOU WILL REGARD THIS AUTHORIZATION AS REVOKED."

It was stipulated that no proceed or travel time was authorized or allowed in the transfer. The transfer order authorized the use of Grantham's own automobile, but the authorization was unnecessary and meaningless because Grantham was on leave. He testified that he could have travelled by any means which he desired. After logging off the USS CORAL SEA on March 29, 1963, Grantham spent the night at his home in Hayward, California, and then left the following day in his privately owned automobile for Bremerton, Washington. While Grantham's leave was to expire on April 13, 1963, he reported to the BON HOMME RICHARD at Bremerton, Washington, on April 1, 1963, thus taking only a portion of the leave to which he was entitled.

The District Court found inter alia the following facts:

1. Grantham was on leave status at the time of the accident. His leave commenced March 30, 1963 and terminated April 1, 1963.

2. During said period of leave Grantham was entitled to his regular pay, but he was not entitled to any pay for travel and proceed time.

3. Grantham's transfer was initiated by him for purely personal reasons.

4. Grantham's duties as a Storekeeper 1st Class did not involve his driving or otherwise operating a motor vehicle.

5. Grantham was at all times subject to the provisions of the Uniform Code of Military Justice.

6. Grantham's exchange of duty with Pedro Dela Cruz was of some benefit to the military service for morale purposes which, in return, aided in the retention of qualified and experienced career personnel.

7. Grantham's orders provided for fifteen days' leave to travel between Alameda, California and Bremerton, Washington.

8. Said orders were further in error in that the license number designated in the orders was not correct. In addition although said Orders authorized use of Grantham's own automobile, because of the kind of transfer involved such authorization was unnecessary.

9. Grantham was not acting within the scope of his employment at the time and place of the collision.

28 U.S.C. § 1346(b) provides, in relevant part, as follows:

"* * * The district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, or 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 in accordance with the law of the place where the act or omission occurred."

28 U.S.C. § 2671, under the heading "Definitions", in relevant part provides:

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

"* * *.

"`Employee of the government\' includes * * *, members of the military or naval forces of the United States, * * *.

"`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."

28 U.S.C. § 2674, in relevant part provides:

"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."

"* * *."

Among the admitted facts appearing in the pretrial conference order is that Grantham was an employee of the United States at the time of the accident. It is to be noted that 28 U.S.C. § 1346(b), in substance provides that the District Court shall have exclusive jurisdiction of civil actions on claims against the United States for money damages, for injury or loss of property or personal injury or death caused by the negligence or wrongful act of any employee of the Government "while acting within the scope of his employment", and that 28 U.S.C. § 2671 provides 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."

However, as stated in Merritt v. United States, 332 F.2d 397 at page 398 (1st Cir. 1964):

"It is settled that the phrase `acting in line of duty,\' while having a military sound, and, apparently, a different meaning in connection with benefit claims of military personnel against the government, with respect to the Tort Claims Act merely invokes the state law of respondeat superior. Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761; United States v. Taylor, 6 Cir., 1956, 236 F.2d 649, 74 A.L.R.2d 860, cert. dismissed, 355 U.S. 801, 78 S.Ct. 6, 2 L.Ed.2d 19; United States v. Hainline, 10 Cir., 1963, 315 F.2d 153, cert. den. 375 U.S. 895, 84 S.Ct. 172, 11 L.Ed. 2d 124."

In accord see United States v. Campbell, (5th Cir. 1949) 172 F.2d 500, cert. den. 337 U.S. 957, 69 S.Ct. 1532, 93 L.Ed. 1757, and Chapin v. United States, (9th Cir. 1958) 258 F.2d 465, cert. den. 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed.2d 627.

In the last cited case we stated, 258 F.2d at page 468:

"We must decide whether the peculiar status of a member of the armed services has any effect on the validity of the general rules already noted; or whether, for the purposes of respondeat superior, his status is to be considered similar to that of any private employee. We discern no basis in the statute waiving sovereign immunity nor in logic for making a distinction which would extend the scope and application of the doctrine of respondeat superior beyond that traditionally applied to private employers simply because the federal government in its military capacity finds itself in the role of employer." Footnote omitted.

28 U.S.C. § 2674 imposes liability upon the United States respecting the provisions of the Federal Tort Claims Act,...