McSwain v. United States

• Decision Date: 20 February 1970
• Docket Number: No. 17873.,17873.
• Citation: 422 F.2d 1086
• Parties: Dorothea E. McSWAIN and Stella McSparran, Administratrix of the Estate of Tracy L. McSwain, Deceased, v. UNITED STATES of America, Appellant, v. Herbert L. McSWAIN.
• Court: U.S. Court of Appeals — Third Circuit

422 F.2d 1086 (1970)

Dorothea E. McSWAIN and Stella McSparran, Administratrix of the Estate of Tracy L. McSwain, Deceased, v. UNITED STATES of America, Appellant, v. Herbert L. McSWAIN.

No. 17873.

United States Court of Appeals, Third Circuit.

Argued December 16, 1969.

Decided February 20, 1970.

Rehearing Denied March 26, 1970.

Patricia S. Baptiste, Dept. of Justice, Civil Division, Washington, D. C., (William D. Ruckelshaus, Asst. Atty. Gen., Louis C. Bechtle, U. S. Atty., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

David Kanner, Kanner, Stein, Feinberg & Barol, Philadelphia, Pa. (Edward N. Barol, Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, FREEDMAN and ADAMS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

The issue in this case is whether the Government is liable for the negligent operation of an automobile by a serviceman travelling from one duty post to another, who for personal reasons did not use a direct route between the two points.

In August, 1962, Corporal Herbert L. McSwain, of the United States Marine Corps, received orders transferring him from Camp Pendleton, California, to the Naval Air Technical Training Center in Memphis, Tennessee.¹ McSwain was authorized a delay enroute of twenty days chargeable as ordinary leave and four additional days for travel time, and was authorized to go by any means of transportation.

McSwain decided to use his own automobile and drive to the home of relatives in Philadelphia where he intended to leave his wife and infant daughter, to complete the trip to Memphis alone and to do some sight-seeing as they crossed the country. He was to be reimbursed for mileage for himself and for his wife, calculated on the basis of the distance from Pendleton to Memphis.

The direct route from Pendleton to Memphis is due east through Arizona, New Mexico, Texas, Oklahoma and Arkansas. However, in accordance with his plans, McSwain, his wife, and daughter left Pendleton on August 29, 1962, driving in a northeasterly direction to Las Vegas, Nevada. After an overnight stop in Las Vegas, they drove through Arizona, stopped the next night in Utah and went into Colorado. On September 1, 1962, while driving east on Route 40, one mile west of Wild Horse, Colorado, McSwain apparently fell asleep, and his car veered off the road into a ditch. His daughter fell against the dashboard, and as a result of the injuries she sustained, died the following day. When the accident occurred, McSwain was 300 miles north of the direct east-west route between Camp Pendleton and Memphis.

Mrs. Dorothea McSwain, the child's mother and Stella McSparran, the administratrix of the child's estate, instituted this suit for damages under the Federal Tort Claims Act. The United States moved for summary judgment on the ground that the serviceman was not acting within the scope of his employment at the time of the accident. The motion was denied by the district court, 291 F.Supp. 386. After trial, the district court held that the serviceman was acting within the scope of his employment, found he had negligently operated his car, and awarded judgment to the administratrix of the estate for $977.40 in the wrongful death action and $6,522.60 in the survival action. This appeal, confined to the single question whether McSwain was acting within the scope of his employment when the accident occurred, followed.

Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674,² the

United States is liable for injury caused by the negligent act of a government employee to the same extent a private employer would be liable. Such liability for the acts or omissions of a civilian or military federal employee is determined by the law of respondeat superior of the state in which the act or omission occurred. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L. Ed. 761 (1955).³ Because the Federal Tort Claims Act requires that suits be brought in the federal courts, there cannot be a state case directly in point. Federal courts, however, have considered many similar suits and apply the most analogous state law. As a result, there are diverse views in the Courts of Appeals depending basically on the applicable state law, and to some extent on the particular factual situation. Although the traditional doctrine of respondeat superior may not be appropriate to the relationship between military personnel and the armed forces, we are constrained by legislative mandate to apply this concept.

In reaching his decision, Judge Weiner in the court below relied, as did Judge Troutman when he denied the Government's motion for summary judgment, on Courtright v. Pittman, 264 F. Supp. 114 (D.C.Colo.1967). Courtright interpreted Colorado state law in a case involving facts substantially similar to those here. There is, however, a significant distinction between the two cases which is crucial to the outcome in the present case.

Courtright was a suit under the Federal Tort Claims Act arising from the negligent operation of an automobile in Colorado by Pittman, a serviceman travelling from a duty post in Alaska to one in Colorado. Like McSwain, Pittman was authorized delay enroute and travel time, was accompanied by his wife and children, and compensated for the trip. Chief Judge Arraj, in the Colorado District Court, found that Pittman was "travelling on a direct route" and "was engaged in no sort of pleasurable `frolic of his own.'" 264 F.Supp. at 120. The District Court here found that McSwain was "not on the most direct route from Camp Pendleton to Memphis." Instead, he was in Colorado because he had visited Las Vegas and was enroute to visit his wife's family in Philadelphia before reporting to Memphis. Although Judges Troutman and Weiner observed this factual distinction between the two cases, they did not believe it determinative. We disagree, and consider it controlling.

In United States v. Mraz, 255 F.2d 115 (10th Cir. 1958), cited by the court below, Judge Murrah stated that there are two basic philosophies of respondeat superior:

* * * "There is doubtless a philosophical divergence in the theory that a master is not liable for the wrongful acts of his servant, unless done in respect to the very transaction out of which the injury arose, and the theory that a master is liable for his servant\'s negligent acts if done while engaged in the master\'s business and did not arise from some external, independent and personal motive on his part." 255 F.2d at 117.⁴

A primary issue for the Colorado District Court in Courtright was whether Colorado took the former or latter approach. Chief Judge Arraj in Courtright examined the law on this subject and particularly the applicable Colorado law. Relying in part on Hynes v. Donaldson, 155 Colo. 456, 395 P.2d 221 (1964), he concluded that Colorado followed the latter theory. Accordingly, Courtright is not authority for the position that Colorado law holds a master responsible for negligent acts of an employee that occur while the employee is making a trip in part for his employer's business but from which he has deviated for his own purposes.⁵ Even under the second view discussed in Mraz, if the employer is to be held negligent, the negligent act must "not arise from some external, independent and personal motive." The language in Courtright that Pittman, the negligent serviceman, was "on a direct route" and not on a "pleasurable frolic of his own", and therefore substantially performing his employer's business, indicates a recognition of this position.

In Courtright, the Colorado District Court also referred to the Restatement of Agency, 2d. § 228; which provides:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master.

* * * * * *

The question of compliance with the Restatement in Courtright concerned subsection (a). It was clear in Courtright, and the Court so stated, that the requirements of (b) and (c) were met. There is nothing in the Courtright decision to indicate that the Court there did not consider all three requirements of the Restatement to be of equal importance.⁶

At the time of the accident here McSwain was in Colorado because of the "independent and personal motive" to go to Philadelphia after his visit to Las Vegas. Assuming his trip to Memphis was basically for his employer's purposes, the accident occurred at a place that was a substantial deviation geographically and was for McSwain's own purposes. Each of these factors takes the accident outside the ambit of the Courtright rule.

Although there is a divergence of views in the Circuits with respect to the liability of the United States for the negligence of a serviceman travelling in his car to a permanent post, most of the cases which hold the Government responsible rely at least in part on the fact that the serviceman is on a substantially direct route to his new post. Platis v. United States, 409 F.2d 1009 (10th Cir. 1969) (Utah law); United States v. Myers, 331 F.2d 591 (8th Cir. 1964) (Colorado law); Cooner v. United States, 276 F.2d 220 (4th Cir. 1960) (New York law); Hinson v. United States, 257 F.2d 178 (5th Cir. 1958) (Georgia law); United States v. Mraz; O'Brien v. United States, 236 F.Supp. 792 (D.Maine, 1964) (Maine law).⁷

The occurrence of the accident on other than a direct route has influenced courts to exculpate the Government. Kunkler v. United States, 295 F.2d 370 (5th Cir. 1961) (applying Florida law); McGarrh v. United States, 294 F.Supp. 669 (N.D.Miss.1969).⁸ In Kunkler, where the accident occurred in Florida although the transfer was from a post in Mississippi to one in Alabama, the Court specifically distinguished Hinson, when the serviceman had followed a direct route. 295 F.2d at 372.

Plain...