Sample v. United States, 4-58-Civ-47.

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Citation178 F. Supp. 259
Docket NumberNo. 4-58-Civ-47.,4-58-Civ-47.
PartiesLois J. SAMPLE & Willis S. Sample, Plaintiffs, v. UNITED STATES of America, Defendant.
Decision Date12 November 1959

178 F. Supp. 259

Lois J. SAMPLE & Willis S. Sample, Plaintiffs,
UNITED STATES of America, Defendant.

No. 4-58-Civ-47.

United States District Court D. Minnesota, Fourth Division.

November 12, 1959.

Sheldon J. Gensler, Schermer, Gensler & Shields, Minneapolis, Minn., for plaintiffs.

Fallon Kelly, U. S. Atty., Clifford Janes, Asst. U. S. Atty., St. Paul, Minn., for the defendant.

DEVITT, Chief Judge.

This suit arises under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, 2674 (1958) and asserts a claim for personal injuries allegedly sustained by the

178 F. Supp. 260
negligence of a soldier who was driving his own automobile from Camp McCoy, Wisconsin to Fort Sheridan, Illinois. The sole issue for determination here is whether the soldier was acting "within the scope of his office or employment"1 or "in line of duty"2 at the time of the accident so as to make the United States responsible for his alleged negligence

The facts have been stipulated. Ernest Griffith, 26 years of age, was a specialist second class, assigned on active duty to the 15th Signal Company, with permanent station at Fort Sheridan, Illinois. During the summer of 1957, the 15th Signal Company was temporarily reassigned for 140 days to Camp McCoy, Wisconsin, to aid in summer training of Army reservists in that area.

Under appropriate military authority, the Signal Company was ordered to proceed in four increments, viz., on April 19, May 1, May 16 and May 23, 1957. Griffith was assigned as driver of an Army vehicle to proceed with the May 16 increment. However, that morning he was absent without leave until 9 a. m. and the increment moved without him. Thereafter, on May 22, 1957, he was tried and adjudged guilty of being A.W. O.L. and fined $25.

Appropriate orders of the Army were then issued directing his transfer to Camp McCoy, Wisconsin. By the phrase "TPA is Authorized", he, along with some other soldiers, was authorized to use private transportation in going to and returning from Camp McCoy. Thereafter he drove his private automobile to Camp McCoy and received travel allowance for the trip.

In July, 1957, Griffith was ordered by wire to return immediately to Fort Sheridan, Illinois, to his parent organization. The wire read as follows:

"SP2 Ernest B. Griffith RA13350 507, Tdy Your Unit, Will Return To This Sta To Parent Org Immediately. Em Will Hand Carry All Service Records and Allied Papers"

Pursuant to this wire and endorsement on his original orders, Griffith departed Camp McCoy, Wisconsin, on July 12, 1957, shortly after 9:00 a. m. driving his private automobile. He was accompanied by Specialist Second Class Warren G. Allen, a soldier with an active duty status as a member of the 15th Signal Company. Allen was on a pass authorizing his absence from duty and from Camp McCoy until Monday, July 15, 1957.

Griffith, with his passenger, was proceeding southeasterly on U. S. Highway No. 12 in Walworth County, near White-water, Wisconsin, when his car collided with plaintiff Willis Sample's car traveling northwesterly. Plaintiff Lois J. Sample, the wife of Willis S. Sample, was a passenger in her husband's car. Both plaintiffs received injuries as a result of the collision and both soldiers died without regaining consciousness. The plaintiffs then brought this suit against the United States to recover for their injuries.

Whether a serviceman is "within the scope of * * * employment" is to be determined by the respondeat superior doctrine of the state where the accident occurred. Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761. And the additional statutory words "in line of duty" do not change this basic common law

178 F. Supp. 261
test. Cannon v. United States, 5 Cir., 1957, 243 F.2d 71, 72

But since the relationship of a serviceman to his government is seemingly unique, the state court decisions dealing with ordinary employer-employee relationships are often definitionally remote to a soldier's scope of employment. This Court must, nevertheless, attempt to arrive at a result which it believes the Wisconsin Supreme Court would reach if faced with the same issue.

The applicable Wisconsin law arises from two sources: directly through ordinary respondeat superior cases, and indirectly through workmen's compensation cases. Since the test under the Wisconsin Workmen's Compensation Act is whether the employee was performing service "growing out of and incidental to his employment," the area of compensation liability is concededly larger than the area of respondeat superior liability for acts "within the scope of employment." Village of Butler v. Industrial Comm., 1953, 265 Wis. 380, 61 N.W.2d 490, 492. Some Wisconsin Workmen's Compensation cases, however, specifically rely on common law tests of "scope of employment," and are therefore relevant to the decision of the issue in this case.

The first case is Steffen v. McNaughton, 1910, 142 Wis. 49, 124 N.W. 1016, 26 L.R.A., N.S., 382, where a chauffeur using his employer's car during the noon hour, without permission, was held not to be within the course of employment. The Court states:

"While the chauffeur was so engaged, his employment and the relation of master and servant were suspended for the time being, unless the facts of the case show that the defendant consented to the chauffeur availing himself of this use of the machine to facilitate his labor and service, and in furtherance of the defendant's interests." 124 N.W. at page 1018.

In 1923, the Wisconsin Supreme Court decided in James v. Tobin-Sutton Co., 182 Wis. 36, 195 N.W. 848, 29 A.L.R. 457, that a traveling automobile salesman was an independent contractor and not an employee because the employer had no right to control the salesman's daily activities in accomplishing sales. So holding, the Court stated:

"It is well settled that where one drives his own automobile, a third party cannot be held liable for injuries to a stranger resulting from negligent driving unless the relation of master and servant or principal and agent exists between the third party and the driver, and the latter is actually at the time of the injury engaged in the furtherance of the master's or principal's business." 195 N.W. at page 848. See also Harris v. Richland Motors, Inc., 1959, 7 Wis.2d 472, 96 N.W.2d 840.

Circumstances bearing any real analogy to the present situation first arose in Aetna Life Ins. Co. v. Schmiedeke, 1927, 192 Wis. 574, 213 N.W. 292, 293. A salesman was held to be "within the scope of his employment" under the Workmen's Compensation Act when, upon current instructions, he was returning late at night to his home office, in his own car, from a trip in which he had mixed his own business with that of his employer. The Court stated:

"The time of making the trip was unimportant. It seems apparent that, whenever the trip was undertaken, he was clearly within the scope of his master's employment while on his return. The trip for the week was an entity. It

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4 cases
  • Platis v. United States, C 183-66
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • 7 August 1968
    ...v. United States, 257 F.2d 178 (5th Cir. 1958); United States v. Mraz, 255 F.2d 115 (10th Cir. 1958); cf. Sample v. United States, 178 F.Supp. 259 (D.C.Minn.1959); Satterwhite v. Bocelato, 130 F.Supp. 825 (E.D.N.C. 1955); Purcell v. United States, 130 F.Supp. 882 (N.D.Cal.1955); Whittenberg......
  • O'BRIEN v. United States, Civ. No. 1467.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • 30 December 1964
    ...v. United States, 257 F.2d 178 (5th Cir. 1958); United States v. Mraz, 255 F.2d 115 (10th Cir. 1958); cf. Sample v. United States, 178 F.Supp. 259 (D.C.Minn. 1959); Satterwhite v. Bocelato, 130 F. Supp. 825 (E.D.N.C.1955); Purcell v. United States, 130 F.Supp. 882 (N.D. Cal.1955); Whittenbe......
  • Courtright v. Pittman, Civ. A. 66-C-47.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 18 January 1967
    ...that the permanent transferee is subject to less control and is acting primarily in his own behalf. See, e. g., Sample v. United States, 178 F.Supp. 259 (D.Minn.1959); and Myers v. United States, supra. This distinction does not appear to be a meaningful one; factually, the degree of contro......
  • Cobb v. United States, 64 C 34.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 4 November 1965
    ...of his personal affairs, not usually connected with the business of the employer." 276 F.2d at 225. Finally, in Sample v. United States, 178 F.Supp. 259 (D.Minn. 1959), the court distinguished the temporary transfer involved in the case before it from "a permanent transfer of great distance......

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