BECKER, District Judge.
These two consolidated actions against the United States of America under the Federal Tort Claims Act arise out of an automobile collision occurring on United States Highway 40 near Berthoud Pass, Colorado, on April 11, 1959. The Court has jurisdiction to determine the controversy under Title 28 U.S.C.A. Section 1346(b).
On April 11, 1959, the plaintiffs, Nora A. Myers and Chester Myers, husband and wife, were traveling eastwardly near Berthoud Pass on United States Highway No. 40 in an automobile operated by Chester Myers. They were then and there involved in a head-on collision with a passenger automobile driven by Technical Sergeant Jessie G. Thomas, a member of the United States Air Force on active duty, traveling from Dover Air Force Base, Delaware, to Travis Air Force Base, California, pursuant to the orders hereinafter mentioned.
Nora Myers individually sues for damages for personal injuries sustained in the collision. Chester Myers, now deceased, sued for damages sustained in the collision, including medical expenses and loss of services of his wife, Nora Myers. Chester Myers is now deceased, and his wife, Nora Myers, has been substituted as plaintiff in the action filed by him in her representative capacity. The principal issues submitted to the Court are: (1) the amount of damages sustained by Nora Myers and by Chester Myers prior to his death; and (2) the liability of the United States to the plaintiffs, including the question of whether Sergeant Thomas committed a tort as an employee of the United States within the scope of his employment by the United States.
The complaint was submitted upon a record made in accordance with an agreement at pre-trial conference, which reads as follows:
"It is agreed between the parties as follows:
"1. These causes have heretofore been set for trial on this day, Monday, June 24, 1963. Both parties are ready for trial and submission of the cause to the Court upon this stipulation.
"2. It is agreed by the parties that the Court has jurisdiction to try this action as a non-jury case under the Federal Tort Claims Act.
"3. It is agreed by the parties that on April 11, 1959, about 2:50 p. m. at a point on United States Highway No. 40 (also Colorado Route No. 2; also Berthoud Pass), at a point one and four-tenths miles east of the Clear Creek — Grand County line in the State of Colorado, Jesse G. Thomas, carelessly and negligently drove a 1956 Studebaker coupe onto the left side of the center of said highway into the path of an oncoming 1958 Oldsmobile sedan then and there operated by Chester J. Myers, now deceased, husband of Nora Myers; that as a result of the carelessness of Jesse Thomas, as aforesaid, a head-on collision occurred between the two vehicles causing personal injuries to the plaintiff Nora A. Myers.
"4. The parties further agree that neither Nora A. Myers nor Chester Myers were guilty of any acts of contributory negligence or any other conduct which would bar their right to recover against Jesse Thomas and against the defendant United States of America if it appears from the evidence and record and agreements that the United States was at the time of the collision and immediately prior thereto responsible in law for the actions of Jesse Thomas in operating said Studebaker coupe.
"5. It is agreed between the parties that the nature and extent of the injuries of the plaintiff, Nora Myers, and the value of the loss of her services resulting from her injuries shall be determined by the Court upon the basis of medical reports and hospital records and itemized special damages appearing from medical and hospital bills and bills for payment for housework as disclosed by verified answer to interrogatories submitted to the plaintiff Nora Myers.
"6. It is agreed by the parties that prior to the collision in question Nora Myers suffered from non-disabling hypertension over a period of approximately fifteen years; that her occupation was that of a housewife; that she and Chester Myers lived in their home at Route 5, Warrensburg, Missouri, at the time of the collision; and that the normal duties of a housewife, without a servant, were performed by Nora Myers prior and at the time of the collision; that the plaintiff, Nora Myers, prior to and at the time of the collision assisted her husband in the conduct of his business of contracting for road construction by driving vehicles, assisting him in the bookkeeping, and other matters as disclosed by the verified answer to interrogatories propounded to Nora A. Myers; that these services were not rendered upon a commercial basis but by Mrs. Myers as a wife assisting her husband in the conduct of his business when needed.
"7. On the issue of liability of the United States, the parties agree that this issue be determined by the Court in its ruling upon the motion for summary judgment of the United States filed herein.
"8. It is agreed by the parties that the facts with respect to the issue of responsibility of the United States of America for the operation of the vehicle on April 11, 1959, be determined from the facts as stated in Suggestions in Support of Defendant's Motion for Summary Judgment, Part I, considered in connection with the deposition of Jesse G. Thomas, filed herein, and the verified answers to interrogatories of the plaintiffs considered in the light most favorable to the plaintiff; that no oral testimony be required as submitted.
"9. It is agreed by the parties that in determining the question of responsibility of the United States for the operation of the motor vehicle on April 11, 1959 by Jesse Thomas, that Colorado law is controlling.
"10. It is agreed between the parties that the following facts are not in dispute:
"a. For approximately 19 years prior to April 1959, Jesse G. Thomas had been a member of the U. S. Army Air Force and thereafter U. S. Air Force.
"b. That on April 2, 1959 and thereafter, to and including April 11, 1959, the regular duty station of Jesse G. Thomas was at the Dover Air Force Base in the State of Delaware.
"c. That at all times mentioned herein in April, 1959, Jesse G. Thomas held the rank of technical sergeant in the United States Air Force.
"d. That on April 2, 1959, at Headquarters, 1607th, Air Transport Wing (H) (MATS), United States Air Force, Dover Air Force Base, Delaware, pursuant to authority granted by law issued to Technical Sergeant Jesse G. Thomas, special order number A-179, ordering Technical Sergeant Jesse G. Thomas to proceed on or about 3 April 1959 to Headquarters, 1501st Air Transport Wing (MATS) at Travis Air Force Base in the State of California on temporary duty for approximately 36 days for the purpose of attending C-133 M. T. D. and Familiarization Course for approximately four academic weeks; and ordering Sergeant Thomas to report to Captain B. H. Moon at Building N. R. S. 150 at Travis Air Force Base, not later than 0730, 14 April 1959, and attaching Sergeant Thomas to the Headquarters 1501st Air Force Wing for administration during the period of duty. By said order Sergeant Thomas was cleared to access for classified material up to and including `secret' for the period of the duty. By using the standard travel time by common carrier rail, the order to Sergeant Thomas allowed eight days travel time and provided that any excess over eight days would be chargeable to the `delay enroute' which would be in turn charged against his leave time. Upon completion of the temporary duty Sergeant Thomas was directed by the order to return to Dover Air Force Base in Delaware. The travel was expressly directed as being necessary to military service. The order further expressly authorized travel by private vehicle.
"The same order (special order number A179) included within the directions of the order two other members of the 1607th Air Transport Wing, namely Master Sergeant Wayne Moore and Staff Sergeant Charence C. Hartz; that Sergeant Thomas under the terms of the order was authorized to travel in his own private vehicle although he could have chosen any other means of conveyance; that Sergeant Thomas did not depart from Dover Air Force Base toward Travis Air Force Base until April 8, 1959. He was traveling directly from Dover Air Force Base to Travis Air Force Base by direct route when the collision occurred; that Sergeant Thomas was authorized to collect from the United States five cents a mile for the travel from Dover Air Force Base to Travis Air Force Base, either before departing or later; that Sergeant Thomas could not recollect whether he collected the mileage allowance before departing or later; that in the automobile involved in the collision and operated by him, Sergeant Thomas was carrying his civilian clothes, his necessary uniforms and flying equipment, and his golf clubs. His flying equipment consisted of military clothing, survival equipment, arctic survival equipment, and tools necessary to perform his duties; that the Government property carried by him in his automobile at the time of collision was worth about $2,000, about which he was quite concerned since he was responsible for it. Sergeant Thomas neither made nor planned to make any detours, side trips or pleasure trips on his trip from Dover Air Force Base to Travis Air Force Base pursuant to orders. (In this connection there appears in the verified answer of Chester Myers to Interrogatory No. 26 propounded by the defendant, that Sergeant Thomas stated at the scene of the collision
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