McGarrh v. United States

• Citation: 294 F. Supp. 669
• Decision Date: 02 January 1969
• Docket Number: No. DC 6557-K.,DC 6557-K.
• Parties: Ellis McGARRH, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

294 F. Supp. 669

Ellis McGARRH, Plaintiff, v. UNITED STATES of America, Defendant.

No. DC 6557-K.

United States District Court N. D. Mississippi, Delta Division.

January 2, 1969.

Charles L. Sullivan, Clarksdale, Miss., for plaintiff.

H. M. Ray, U. S. Atty., Oxford, Miss., for defendant.

OPINION OF THE COURT

KEADY, Chief Judge.

This suit is filed under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), to recover damages for serious injuries allegedly suffered by plaintiff when his automobile struck the rear-end of an automobile driven by Private First Class Jesse D. Morrell, III, a soldier of United States Army, then in leave status and under orders transferring him from one duty station to another. The United States has moved for summary judgment under Rule 56(b) F.R.Civ.P., contending that it is entitled to judgment as a matter of law inasmuch as Morrell was then acting outside the scope of his employment, or line of duty. The sole issue for consideration at this juncture is whether at the time of the accident Morrell was acting within the scope of his employment or line of duty; and we do not reach the question of tortious conduct vel non on the part of the serviceman.

The undisputed material facts relating to the question for decision are set forth briefly as follows: Under permanent change of station orders dated April 27, 1965, Private Morrell was transferred from Fort Detrick, at Frederick, Maryland, to Oakland, California, for overseas assignment. He was required to report in Oakland on June 13, 1965. He was granted 20 days delay en route, or leave¹ at home or other address within the continental United States, plus 7 days travel time to report in Oakland.²

On May 18, 1965, at 1 a. m., Private Morrell signed out on the official personnel register at Fort Detrick, Maryland, giving his home in New Orleans, Louisiana, as his leave address, and proceeded by his privately owned automobile toward New Orleans. The Army was unaware after his sign-out what route he was taking to eventually reach Oakland, the time, mode or other particulars of his travel. These matters were wholly decided by Morrell, but he was paid a lump sum for his travel expenses, which covered the mileage figured directly from Fort Detrick to Oakland, and did not include the extra mileage necessary to reach his home in New Orleans. On May 19, 1965, at approximately 3:45 a. m. on U. S. Highway 51 in Holmes County, which is situated in Central Mississippi, the southbound automobile driven by Private Morrell was involved in a collision with an automobile then being operated by plaintiff. Morrell was then en route to New Orleans, where he planned to visit his family and get his personal affairs in order before reporting for duty at his California station.

Liability of the government is predicated upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. Since the accident occurred in Mississippi we must look to the laws of that state to determine whether Morrell was acting within the scope of his employment or line of duty.³ Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955). The precise question to be decided is this: Under Mississippi law is a private employer liable for the negligent conduct of an employee who, during his period of travel from one place of employment to another, has an accident while attending to matters of personal concern to the employee? We must choose the rule which we believe the Supreme Court of Mississippi would apply, were it faced with facts precisely the same as those in the case at bar.

Cases arising from accidents involving servicemen traveling by privately owned automobile between permanent duty stations are not novel to the Federal Courts. The holdings in the various Circuits are irreconcilable, largely because they have applied the diverse laws of the several states. As a general rule, the government has been held liable when the serviceman, at the time of the accident, was in travel status proceeding directly from one duty station to another. See, e. g., Hinson v. United States, 257 F.2d 178 (5 Cir. 1958); United States v. Mraz, 255 F.2d 115 (10 Cir. 1958); Cooner v. United States, 276 F.2d 220 (4 Cir. 1960). Courts of Appeal for other Circuits have reached opposite conclusions under similar circumstances. Chapin v. United States, 258 F.2d 465 (9 Cir. 1958), cert. denied, 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed.2d 627 (1959); United States v. Sharpe, 189 F.2d 239 (4 Cir. 1951). Most courts, however, have denied relief in cases where accidents have occurred while the serviceman was on leave or in delay en route status. United States v. Eleazer, 177 F.2d 914 (4 Cir. 1949), cert. denied, 339 U.S. 903, 70 S.Ct. 517, 94 L.Ed. 1333 (1950); Cobb v. Kumm, 367 F.2d 132 (7 Cir. 1966); Noe v. United States, 136 F.Supp. 639 (E.D. Tenn.1956); Kunkler v. United States, 295 F.2d 370 (5 Cir. 1961). United States v. Kennedy, 230 F.2d 674 (9 Cir. 1956) holds to the contrary. District Court cases holding to the same effect are Berrettoni v. United States, 263 F. Supp. 907 (D.Mont.1967); Courtright v. Pittman, 264 F.Supp. 114 (D.Colo.1967); and O'Brien v. United States, 236 F.Supp. 792 (D.Maine N.D.1964). The last opinion contains an excellent analysis of the divergent views of the law in this area. It is to be noted that in cases imposing liability, the serviceman on leave was found to be traveling on a direct course to his new duty station at time of the accident.

We find no Mississippi case directly in point, as involving an employer's liability to third person for the negligent conduct of an employee under the circumstances here presented. However, closely analogous are the so-called "deviation" cases wherein an employee, initially on a mission within the scope of his employment, deviates therefrom to pursue a personal errand, and, before resuming his master's business, he is involved in an accident. Where the deviation is slight and not unusual, the employee is held to be engaged in his employer's business; but if the deviation is very marked and unusual, the employee is held not to be at all on his employer's business but solely on his own. While the degree of the deviation is ordinarily a question of fact, it becomes solely one of law, where the basic, material facts are not in issue, as is true in the case sub judice. Therefore, we hold that this case is properly for summary judgment disposition and the government should prevail.

An early Mississippi case establishing a foundation rule which limits the doctrine of respondeat superior is Canton Cotton Warehouse Co. v. Pool, 78 Miss. 148, 157, 28 So. 823 (1900), where the Court declared as follows:

"The inquiry is not whether the act in question, in any case, was done, so far as time is concerned, while the servant was engaged in the master's business, nor as to mode or manner of doing it, — whether in doing the act he uses the appliances of the master, — but whether, from the nature of the act itself as actually done, it was an act done in the master's business, or wholly disconnected therefrom by the servant, not as servant, but as an individual on his own account." (Emphasis added)

This test was relied upon and expanded in the oft-cited case of Barmore v. Vicksburg, S. & P. Ry. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627 (1905), involving facts not helpful here but turning upon a resumption of duty by an employee who had previously deviated to carry out a personal mission. The Court stated:

"In determining whether a particular act is committed by a servant within the scope of his employment, the decisive question is not whether the servant was acting in accordance with the instructions of the master, but, was he at the time doing any act in furtherance of his master's business? If a servant, having completed his duty to his master, then proceeds to prosecute some private purpose of his own, the master is not liable; but if the servant, while engaged about his master's business, merely deviates from the direct line of duty to accomplish some personal end, the master's responsibility may be suspended, but it is re-established when the servant resumes his duty." (Emphasis added)

Thus, the employer has been held responsible where the deviation of the employee has been regarded as slight or minor, as held in Southern Bell Telephone & Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107 (1933); Colotta v. Phillips, 226 Miss. 870, 85 So.2d 574 (1956).

But where the deviation is major or amounts to a total departure from the scope of employment, the employer has been relieved of responsibility, as illustrated by Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335 (1932); Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209 (1934); Stovall v. Jepsen, 195 Miss. 115, 13 So. 2d 229 (1943); Kramer Service v. Robinson, 201 Miss. 805, 29 So.2d 456 (1947); Simmons v. James, 210 Miss. 515, 49 So.2d 839 (1951); Lovett Motor Company v. Walley, 217 Miss. 384, 64 So.2d 370 (1953). In Jepsen, 13 So. 2d at p. 230, the rule of "major deviation" was succinctly recast in these words:

"If a servant steps aside from the master's business for some purpose of his own disconnected from his employment, the relationship of master and servant is temporarily suspended and `this is so no matter how short the time, and the master is not liable for his acts during such time'." Citing authorities.

Major deviation cases involving servicemen have in two instances been decided by the Fifth Circuit Court of Appeals, and in each case the government was exonerated of liability.⁴ Applying Georgia law, the Court in Cannon v. United States, 243 F.2d 71 (5 Cir. 1957), ruled that a serviceman using an army truck deviated from the scope of his employment when he drove the truck on a personal errand in a direction opposite to that called for by his duty. Even more factually in point is Kunkler v. United States, 295 F.2d 370 (5 Cir. 1961),...