Rich v. Warren

• Decision Date: 07 November 1941
• Docket Number: No. 8665.,8665.
• Citation: Rich v. Warren, 123 F.2d 198 (6th Cir. 1941)
• Parties: RICH v. WARREN.
• Court: U.S. Court of Appeals — Sixth Circuit

123 F.2d 198 (1941)

RICH v. WARREN.

No. 8665.

Circuit Court of Appeals, Sixth Circuit.

November 7, 1941.

John T. Metcalf, of Lexington, Ky., and E. E. Ellison, of Washington, D. C., (Francis M. Shea, of Washington, D. C., John T. Metcalf, of Lexington, Ky., Sidney J. Kaplan, Maurice W. Hibschman, and Enoch E. Ellison, all of Washington, D. C., and Ben L. Kessinger, of Lexington, Ky. and Claude P. Stephens, of Prestonsburg, Ky., on the brief), for appellant.

C. R. Luker, of London, Ky. (J. Milton Luker, of Barbourville, Ky., and C. R. Luker, of London, Ky., on the brief), for appellee.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

A Major in the United States Army has appealed from a judgment rendered against him in the District Court on the verdict of a jury in a civil action for personal injuries.

While being driven on a public highway by a C.C.C. government employee, officially detailed as chauffeur, a government-owned automobile, in which the Major, on official duty, was riding on the front seat beside the chauffeur, struck and injured a pedestrian in the town of Flat Lick, Knox County, Kentucky.

The District Judge, in his charge to the jury, succinctly stated the basis of the cause of action: "The claim for damages is based upon a charge that the injuries were due to the negligence of the driver of the automobile, and that Major Rich was supervisor of that driver or the commanding officer of that driver, and that he participated or co-operated, or acquiesced in the negligence of the driver which was the cause of the plaintiff's injury."

The leading authority in point is Dowler v. Johnson, 225 N.Y. 39, 121 N.E. 487, 488, 3 A.L.R. 146, where the rule was approved that public officers are not liable for the negligence of their subordinates unless they cooperate in the act complained of, or direct or encourage it. The New York Court of Appeals granted a new trial where the court below had dismissed a tort action against the Fire Commissioner of the City of New York, brought by a person injured in a collision with an official automobile driven by a fireman assigned to that duty by the Commissioner. The complaint had charged that, at the time of the collision, the automobile carrying the Commissioner was driven under his orders and that it was driven negligently. Holding that the Commissioner was not liable for the negligence of the fireman on the theory of respondent superior, the court stated the issue to be whether the defendant did in fact direct or encourage, or personally cooperate in the negligent act.

Asserting that the Commissioner's mere presence in the car would be insufficient of itself and in all circumstances to charge him with liability, Judge Cardozo said: "There must have been command or cooperation. De Carvalho v. Brunner, 223 N.Y. 284, 287, 119 N.E. 563; 1 Cooley on Torts (3rd Ed.) pp. 213, 244. But ratification may be equivalent to command, and co-operation may be inferred from acquiescence where there is power to restrain. * * * One cannot let oneself be driven at breakneck speed through city streets, and charge the whole guilt upon the driver, who has done one's tacit bidding."

We approve Dowler v. Johnson, supra, as did the Eighth Circuit Court of Appeals in Fidelity & Casualty Co. v. Brightman, 53 F.2d 161, 166, where the doctrine was restated: "It is well-settled law that public officers are not responsible for acts of subordinate officials, if such subordinates are themselves employees of the government, where there is no negligence on the part of such public officials in employing them, unless the superior officer has directed or encouraged or ratified such acts or has personally co-operated therein."

Neither Phelps v. Boone, 62 App.D.C. 308, 67 F.2d 574, nor Guild v. Brown, 115 Cal.App. 374, 1 P.2d 528, cited by appellant, have bearing here; because, in the former case, a Naval Officer was using, on purely personal business, an official automobile driven by an enlisted man; and, in the latter, an Admiral was not even in the government automobile at the time the enlisted man assigned to him as chauffeur became involved in an accident.

Evidently fully cognizant of the authorities and in consonance with their principles, the District Judge charged the jury clearly, comprehensively and correctly. The jury was instructed that if the driver of the car was negligent, if his negligence directly and proximately caused plaintiff's injury, and if the defendant, Major Francis M. Rich, by his encouragement or acquiescence cooperated to bring about the accident, he would be responsible; but if he did not cooperate or acquiesce or participate in the negligence of the driver, he would not be liable.

The charge emphasized that the mere presence of the Major in the automobile at the time of the accident did not render him responsible, but that the chauffeur's negligence would be imputed to the Major only if he "failed to properly supervise or direct or command the driver, after he had a reasonable opportunity to see that the driver was doing that which was negligent or improper in the operation of the car."

The narrow limit of circumstances within which the Major could be held liable was stressed at the conclusion of the charge:

"Major Rich cannot be held responsible, unless he did something or failed to do something which he should have done as the Commanding Officer there at that time. This man was not his employee and the law that ordinarily makes a master responsible for the negligence of his servants, does not apply in this case. The law does not hold a public officer responsible for the negligence of his subordinate, unless he takes some part in it, or is in some way responsible for it by commanding it or directing or acquiescing in it.

"Now, if this accident happened there suddenly as the result of a sudden emergency, Major Rich is not responsible for it at all. If he had observed that his driver was negligently driving on the wrong side of...