Mider v. United States

• Decision Date: 10 September 1963
• Docket Number: No. 15064.,15064.
• Citation: 322 F.2d 193
• Parties: Robert B. MIDER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

322 F.2d 193 (1963)

Robert B. MIDER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 15064.

United States Court of Appeals Sixth Circuit.

September 10, 1963.

John W. Douglas, Asst. Atty. Gen., Department of Justice, Washington, D. C., Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Morton Hollander, Edward A. Groobert, Attorneys, Department of Justice, Washington, D. C., Joseph P. Kinneary, U. S. Atty., Cincinnati, Ohio, on brief, for appellant.

Clement J. DeMichelis, Cincinnati, Ohio, McCaslin, Imbus & McCaslin, Cincinnati, Ohio, on brief, for appellee.

Before MILLER and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Plaintiff-appellee, Robert B. Mider, brought an action against the United States of America, under the Federal Tort Claims Act, to recover damages sustained when, about 11 o'clock, P. M., on the night of September 15, 1956, an Air Force Staff car was driven by a member of the Armed Forces across a yellow center-line on a highway at Amelia, Ohio, and crashed into appellee's car, causing him injuries and damages, for which the District Court entered a judgment in appellee's favor in the amount of $6,848.39.

There is no dispute as to the facts in the case. The Air Force car was dispatched for off-base transportation by Sergeant Terloin, in charge of the Motor Pool at the Clinton County Air Force Base, Wilmington, Ohio. Terloin had authority to make such dispatch, because of the absence of the superior officers in charge, at that time. The assignment for such transportation was made at the request of Airman Abner. Terloin dispatched the car to himself, and, with Abner in the car with him, drove through the gate of the Air Force Base. He did not stop at the gate but the Air Policeman in charge at the gate waved them on and did not ask for any "ticket." Apparently, such a ticket is used as evidence of authorization for dispatch of the car.

There is proof in the case that George Bradshaw, a driver at the Motor Pool, heard a conversation in which Abner asked Terloin for transportation in order to see his lawyer about some papers. Abner had actually commenced divorce proceedings and he was the father of a child. Donald Smart, a bus driver at the Motor Pool, noticed Abner shaving on the morning of the accident, and, in response to Smart's questions, Abner stated that he was going home and that he had permission to do so from "the old man." Bradshaw, on later examination, testified that he had heard Abner tell Sergeant Terloin that the lieutenant "had authorized the trip for him, for the staff car to take him to his home." On further examination, Smart testified that he heard Abner "ask Sergeant Terloin for transportation for a staff car to take him home to see his lawyer" and that the "lieutenant had authorized it." Lieutenant Warren M. Wenner III testified that he was responsible for the administration and management of the Motor Pool in question, and that on that day, he did not give anyone authority to drive the staff car to Amelia, Ohio; that the Motor Pool did not furnish transportation for other than official business; and that the document governing such official authorization was: AFM 77-1, Chapter 3. Arthur M. Leigh, Motor Transportation Officer and Motor Vehicle Maintenance Officer at the Base, testified that it was not normal procedure for Sergeant Terloin to be the operator of an off-base run, but in many cases, due to the lack of personnel, it was necessary to send him on such a trip; that Terloin did have the authority to authorize any trips; that he had authority to authorize an off-base trip regardless of what the trip was for.

Terloin, being in the Air Force, was not available as a witness. James Abner, for whom the car was dispatched for the trip to his home in Bethel, Ohio, made a sworn statement which both parties to the case agreed to accept in lieu of his testimony.

From the statement of Abner, and from other undisputed evidence, it appears that after Sergeant Terloin and Abner set out from the Base in the staff car, about four o'clock in the afternoon, and started to drive to Bethel, Ohio, the home of Abner, they stopped shortly afterward at a bar where they each had three or four beers. From there, they went on to another bar, where again each had three or four beers. They proceeded on to a tavern, called the Log Cabin, where they each had five or six more beers. From there, they continued their adventure to a place where they played slot machines and each had another four beers. They then went to the home of Abner's sister in Bethel, Ohio, where they changed to civilian clothes, had a sandwich and two more beers. In the Mount Holly Tavern in Bethel, they spent three or four hours and during that time were drinking beer and whiskey. That was the last that Abner remembered until he woke up in the hospital. At the time of the crash, he was found "under the wheel." He stated that he believed he was drunk at the time of the accident.

This Bacchic pilgrimage would have been comic, in a sense, if death had not so nearly brushed the three people involved. As it was, Abner suffered injuries and was rushed to the hospital; and appellee Mider suffered the injuries and damages for which the judgment was rendered.

The District Court, in its opinion, granting judgment in favor of plaintiff, stated:

"It is our specific finding as a matter of fact that the motor pool sergeant, who was vested with apparent authority to dispatch vehicles under the existing conditions, was acting within the scope of his employment (or `in line of duty\') in ordering the dispatch here in question. * * *

"The stipulations fail to disclose that the vehicle was dispatched for any proper purpose, and on the contrary indicate that the probable reason of its use was the accomplishment of a personal purpose; this conclusion is supported by evidence of the events of the ensuing hours, which included, for example, a visit to a private residence for a changing of clothes, and by the fact that the collision occurred some fifty-five miles from the base at a point near where one of the men was stated to have had personal business. We conclude that the defendant was negligent in dispatching the vehicle in the manner and under the circumstances prevailing, and that the collision was a reasonably foreseeable result thereof." (Emphasis supplied.)

It is the claim of the government that Sergeant Terloin was not acting within the scope of his employment when he authorized the dispatch of the motor vehicle for the prohibited or unauthorized purpose of leaving the Base for a weekend at Abner's home in Bethel, Ohio; and that the motor vehicle was not being operated by Abner, within the scope of his office or employment, or in the line of duty, at the time of the collision, and that, therefore, the government is not liable for the injuries and damages resulting from such use of the staff car.

The relevant statutes are Sections of the reenactment of the Federal Tort Claims Act, 62 Stat. 933, 982, 983, in which the government consents to suit against itself for tort claims, and are found in the Code under Title 28 U.S.C.A. §§ 1346(b), 2674 and 2671, which, insofar as here applicable, provide:

"Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent 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." (Title 28 U.S.C.A. § 1346(b))

"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." (Title 28 U.S. C.A. § 2674)

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

* * * * * *

"`Employee of the government\' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

"`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." (Title 28 U.S.C.A. § 2671)

The provisions of the Air...