Platis v. United States
| Decision Date | 28 April 1969 |
| Docket Number | No. 43-68.,43-68. |
| Citation | 409 F.2d 1009 |
| Parties | Nick PLATIS, Appellee, v. UNITED STATES, Appellant. Kenneth JONES, Appellee, v. UNITED STATES, Appellant. George MARICICH, Jr., Appellee, v. UNITED STATES, Appellant. Helen DAY and Roban Day, Appellees, v. UNITED STATES, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Patricia S. Baptiste, Dept. of Justice, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., William T. Thurman, U. S. Atty., and Morton Hollander, Dept. of Justice, Washington, D. C., were with her on the brief) for appellant.
Paul N. Cotro-Manes and Tom G. Platis, Salt Lake City, Utah (Therald N. Jensen, Price, Utah, was with them on the brief) for appellees.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
This appeal is taken by the United States after entry of judgments by the District Court for the District of Utah imposing liability on the government under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, for damages to appellees from personal injuries and wrongful death as the result of an automobile accident occurring near Greenriver, Utah, on June 25, 1965. The appeal probes generally the relationship existent between the United States and military personnel traveling under permanent change-of-station orders with delay en route authorized and the application of that status to the particular facts of the case and the state law of Utah.
On April 5, 1965, the United States Air Force issued Airman First Class Lonnie Williams a "Permanent Change-of-Station Order" transferring him from Ent Air Force Base, Colorado Springs, Colorado to Portland International Airport, Portland, Oregon. The order required Williams to report to his new duty station not later than August 1, 1965, and authorized travel by privately owned automobile with allowance of four days travel time. The order also permitted a delay en route "chargeable as ordinary leave provided it does not interfere with reporting on date specified and provided individual has sufficient accrued leave."
Pursuant to said orders and on June 24, 1965, Williams, driving his own automobile, left Colorado Springs en route to Portland. The following morning and while on direct route to Portland, Williams, at a point approximately four miles west of Greenriver, Utah, was involved in a head-on collision with an automobile driven by Norman Day and which resulted in the death of Day and serious personal injuries to his three passengers (appellees herein). The trial court found that "the negligence of Airman Williams was the direct and proximate cause of the collision between the Williams automobile and the Day automobile" and that neither Norman Day nor his passengers were guilty of contributory negligence. These findings are not contested in this appeal.
Although Airman Williams at the time of the accident was traveling directly from Colorado Springs to Portland he did not intend, according to his own testimony, to report for duty immediately upon arrival at Portland. He did intend to drive directly to Portland and then continue to Rockaway, Oregon, and visit briefly with his wife's parents. Rockaway is approximately one hundred miles west of Portland and the direct route to each city is the same. Against this factual background of subjective intent and the nature of Williams' orders the United States asserts that at the time of the accident Williams was on leave, was acting entirely on his own, and was in no way furthering the interests of the United States. We consider this contention to be argumentative of what might have been possible under Williams' orders but entirely faulty in view of what factually occurred. The trial court's conclusion that Williams was on travel status at the time of the accident finds ample support in the record. The record facts on this issue may be easily summarized.
Williams was ordered to proceed from Colorado Springs to Portland, Oregon;1 he was specifically authorized to use his own automobile to comply with such order; he was on a direct route to his duty station, had not deviated from that route, and did not intend to until he reached Portland; such travel was designated by his orders as "necessary in the military service"; he was paid at the rate of six cents a mile from Colorado Springs to the point of the accident;2 and he was charged with no leave time prior to the occurrence of the accident.
The next issue is whether Airman Williams, proceeding in the capacity and particular circumstances of military travel status, was an employee of the United States "acting within the scope of his office or employment." 28 U.S.C. § 1346(b). This issue must be determined by the principles of respondeat superior under the law of Utah, the place where the tort was committed. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761; United States v. Hainline, 10 Cir., 315 F.2d 153. But at the outset we must negative the persuasiveness or compulsion of state law as affecting the application of liability under the Federal Tort Claims Act for the torts of military personnel by analogy with traditional employer-employee relationships and the acts and duties in common business affairs. For example, the United States here argues that Airman Williams' military assignment was that of a draftsman and that he wasn't hired to drive a car. As a consequence, so says the government, Williams was not performing a function for which he was hired and the United States cannot be held liable for his acts, citing Fowkes v. J. I. Case Threshing Machine Co., 46 Utah 502, 151 P. 53, and other Utah cases. The simple answer to this novel contention is that Williams was not hired at all. He was a member of the Armed Forces, nothing more and nothing less. And as such, he was here authorized by order to drive a car not only for his own benefit but also as "necessary in the military service." This relationship was set by federal law.
The law of Utah does determine the...
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