Phelps v. Boone, 5807.

• Decision Date: 30 October 1933
• Docket Number: No. 5807.,5807.
• Citation: Phelps v. Boone, 67 F.2d 574, 62 App.D.C. 308 (D.C. Cir. 1933)
• Parties: PHELPS v. BOONE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

62 App. DC 308, 67 F.2d 574 (1933)

PHELPS v. BOONE et al.

No. 5807.

Court of Appeals of the District of Columbia.

Argued October 4, 1933.

Decided October 30, 1933.

Edwin C. Dutton, of Washington, D. C., for plaintiff in error.

Leo A. Rover, John J. Wilson, and Ralph E. Day, all of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Defendant in error (Dr. Boone) is a captain in the Medical Corps of the United States Navy. At the time of the events out of which this suit grew, he was assigned as physician to the White House. In connection with this duty, the Navy Department had provided for his use a Packard automobile with a chauffeur "so that he could be in touch with the White House at all times." The chauffeur was an enlisted man in the Navy.

On the evening of April 19, 1932, as his own evidence discloses, Dr. Boone "called the garage and had this Packard car, driven by Prettyman the enlisted man, sent to him at the White House; from there he went to his home for Mrs. Boone, from there to the home of General Patterson, and from there Prettyman drove them Dr. and Mrs. Boone and General and Mrs. Patterson to the home of a physician in Baltimore where they all had dinner, and after dinner went to the opera in his friend's car, Prettyman following with the Packard and waited outside, and after the opera, they started for Washington in the Packard driven by Prettyman." On the return trip, somewhere around midnight, the driver of the car negligently struck and injured the car belonging to plaintiff in error. At the time of the collision, defendant in error was sitting on the front seat with the driver. The negligence of the driver is not in dispute. The sole question is whether, in the circumstances, the doctrine of respondeat superior is applicable.

Defendant in error insists that because he was subject to call whenever he might be needed at the White House and since the automobile was assigned to him for the purpose of enabling him to respond, its use by him on the evening in question was in his official capacity, since whether in Baltimore or elsewhere he remained subject to call. He likewise insisted that because the car itself belonged to the United States, and the driver, an enlisted man, was assigned to that duty and answerable to the Navy Department rather than to defendant in error, there was lacking that control and direction, so far as defendant in error is concerned, to make the doctrine apply.

We think the case turns upon the question whether at the time of the accident the car was being used by defendant in error in the discharge of an official function or was being used for a purely private purpose, and the evidence of defendant in error on this subject leaves no doubt, we think, that the latter rather than the former is...