Sievers v. United States

• Decision Date: 24 May 1961
• Docket Number: Civ. No. 44-59.
• Citation: 194 F. Supp. 608
• Parties: W. E. SIEVERS, Administrator of the Estate of Charlotte Sievers, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Oregon

194 F. Supp. 608

W. E. SIEVERS, Administrator of the Estate of Charlotte Sievers, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 44-59.

United States District Court D. Oregon.

May 24, 1961.

Lytle, Schroeder & Denning, Robert D. Lytle, Vale, Or., for plaintiff.

C. E. Luckey, U. S. Atty., Victor E. Harr, Asst. U. S. Atty., Portland, Or., for defendant.

KILKENNY, District Judge.

Decedent Charlotte Sievers was killed in an automobile accident occurring on a public highway in Malheur County, Oregon, on the 21st day of January, 1958. Her administrator prosecutes this action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 and 2674. It is charged that the death of the decedent was caused by the negligence of one Edward A. Snow. Snow was an Airman 3rd Class in the service of the United States Air Force. He was proceeding on travel orders from Geiger Field, Spokane, Washington, to McGuire AFB, New Jersey. Snow was released from assignment at Geiger Field in Spokane on January 31, 1958. Snow was accompanied by Airman Carter and they intended to stop at Carter's home in Greenwood, Indiana, from which point Snow intended to proceed to the home of his fiancee in Marysville, Tennessee. His orders required him to report to McGuire between the hours of 7:00 a. m. and 11:00 a. m. on March 1st and permitted him eleven days' travel time. The change of station was permanent. These orders authorized travel by private automobile and reimbursement for travel expense to the extent provided by the regulations. During his leave and travel time he was to receive his airman's pay. It was Snow's privilege to elect to utilize his own private automobile in carrying out orders on his change of station and to be reimbursed at the mileage rate based on the official distance between stations. Snow could have traveled by any other method of transportation he elected. In other words, he was free to perform the entire travel in compliance with the orders in any way he deemed advantageous to himself.

The most direct highway route between Spokane and the East Coast was impeded by snow and other winter weather conditions. The route being followed by Snow was a well recognized alternate route. Enroute the vehicle driven by Snow collided with the vehicle in which decedent was riding, causing decedent's death.

That Snow was negligent at the time and place in question is obvious. At the time he was operating his vehicle in the nighttime without headlights on the wrong side of the highway without keeping a lookout and failed to have his vehicle under control. Such acts of negligence proximately caused the collision and resulting death of Charlotte Sievers.

The only remaining issue is whether Snow was acting in the scope of his employment at the time the accident occurred. Since a federal statute is involved and since the dictates of that statute¹ would seem to be limited to state law involving the "negligent or wrongful act or omission," rather than the status, of the employee, it would seem that federal law, rather than state law, should be used in finding a solution to the problem. However, the per curiam opinion in Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761, forecloses an inquiry into this field. A person in the military service of the United States occupies a status which is peculiar to that field. The one sentence opinion in Williams was in error in stating that the California law applied. No doubt, the court intended to say that such law should be used in deciding the law of Guam. Guam is a territory and its Organic Law was enacted by the Congress of the United States. So, in fact, the court was passing on the local law of Guam. Harris v. Boreham, 3 Cir., 1956, 233 F.2d 110; Mafnas v. Government of Guam, 9 Cir., 1955, 228 F.2d 283.

No case has been cited, and I can find none, where the courts of the state of Oregon or of any other state have attempted to pass on the precise point. Of course, this is understandable. Due to the peculiar status of the serviceman, it is not likely that such a question will ever be presented to a state court. Notwithstanding this fact, it is my duty to anticipate what the Supreme Court of Oregon would hold under like circumstances and conditions and declare the law for the court on such subject.

The Federal Tort Claims Act permits a recovery against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C.A. § 1346(b).

One of the most recent cases on this controversial subject is Cooner v. United States, 4 Cir., 1960, 276 F.2d 220, in which Chief Judge Sobeloff analyzed the New York decisions involving the doctrine of respondeat superior. He arrived at the conclusion that the law of the state of New York, the state in which the accident occurred, permits a recovery on a state of facts similar to that in question. Judge Sobeloff points out that the test in the state of New York is not, as it is in other jurisdictions, one which requires the particular activity at the time of the accident, i. e., the driving, to be the normal duty of the servant, but is rather whether the master's business is then being substantially furthered. After a thorough review of the New York cases the court held that the "dual purpose" rule, i. e., where the business interests of the employer and the personal interests of the employee are both furthered, was the rule followed by the courts of the state of New York and that the Government would be liable. This rule is not followed in Oregon. Crosby v. Braley & Graham, Inc., 171 Or. 72, 134 P.2d 110.

Judge Sobeloff's opinion in Cooner holding the Government liable is weakened by the very able dissenting opinion of Judge Haynesworth challenging the rationale of the use of the dual purpose doctrine under such a factual situation and in failing to use the "right of control" doctrine as taught by other New York cases. 276 F.2d 235.

Both the majority and dissenting opinions in Cooner cite Chapin v. United States, 9 Cir., 1958, 258 F.2d 465, holding that under a similar state of facts no recovery can be made against the Government. The majority opinion in Cooner would distinguish Chapin on the ground that California law is different from New York law. The dissenting opinion urges that the reasoning in Chapin should be applicable to Cooner.

The common law doctrine of respondeat superior is part of the statutory law of the state of California and was viewed as such by Judge Barnes in analyzing the California decisions in Chapin. The common law of England as it existed at the time of the American Revolution, so far as it was general and not local in nature, was adopted as part of the Organic Law of the state of Oregon when the state was admitted to the Union. United States F. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A.L.R. 829; Fidelity & Deposit Co. of Maryland v. State Bank of Portland, 117 Or. 1, 242 P. 823; State v. Black, 193 Or. 295, 236 P.2d 326. I would venture the view that the special statute adopting the common law in California was made necessary by reason of the early influence of the Spanish law in that state. I mention the fact that the common law is applicable, both in California and Oregon, so that I may turn to the California decisions in the event I am unable to find an applicable authority in Oregon.

My research reveals no Oregon case exactly in point. As a general rule, the employer is not liable for the acts of an employee unless it can be shown that the relationship of master and servant existed at the time the damage was done and that the employee was then acting within the course of his employment. Fogelsong v. Jarman, 168 Or. 177, 121 P.2d 924; Hantke v. Harris Ice Machine Works, 152 Or. 564, 54 P.2d 293. Where the employment is admitted, such as here, the primary test to determine the master's liability for the act of his servant is whether the act was within the scope of his employment. Barry v. Oregon Trunk Railway, 197 Or. 246, 256, 253 P.2d 260. Even though the employee is on a regular monthly salary, the employer is not liable unless the employee was acting within the scope of such employment at the time of the accident. Bunch v. Standard Oil Company, 144 Or. 1, 23 P.2d 328. "Scope of employment" is not to be confused with "period of employment." The period of employment is of no significance. Hantke v. Harris Ice Machine Works, supra.

Plaintiff relies mainly on two Oregon cases, Knapp v. Standard Oil Co., 156 Or. 564, 68 P.2d 1052, and Larkins v. Utah Copper Co., 169 Or. 499, 127 P.2d 354. The writer is quite familiar with the Knapp case, having tried the case in the lower court and argued it in the appellate court. I believe both cases are distinguishable.

In Knapp a salesman for the defendant company, residing in Burns, Oregon, was directed to attend a sales meeting at Pendleton. Normally, he used a company car while engaged in the business of his employer, but on this occasion he and his wife proceeded to the meeting in the family vehicle. After arriving in Pendleton he drove on to Walla Walla, Washington, to visit with his wife's family and then returned to Pendleton to attend the meeting. After the meeting the employee was directed to drive to John Day to conduct business on behalf of the defendant the following day. John Day is located on the...