United States v. Alexander

• Decision Date: 05 June 1956
• Docket Number: No. 7162.,7162.
• Parties: UNITED STATES of America, Appellant, v. Stewart M. ALEXANDER, Jr., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

234 F.2d 861 (1956)

UNITED STATES of America, Appellant, v. Stewart M. ALEXANDER, Jr., Appellee.

No. 7162.

United States Court of Appeals Fourth Circuit.

Argued April 23, 1956.

Decided June 5, 1956.

William W. Ross, Atty., Dept. of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Edwin M. Stanley, U. S. Atty., Greensboro, N. C., and Melvin Richter, Atty., Dept. of Justice, Washington, D. C., on brief), for appellant.

Daniel K. Edwards, Durham, N. C., for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and THOMSEN, District Judge.

SOPER, Circuit Judge.

This suit was brought by Stewart M. Alexander, Jr. against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., to recover damages for injuries received while he was riding as a passenger in a United States Air Force aircraft, which crashed in attempting to land at the municipal airport at Evansville, Indiana on September 24, 1950. The Government denied liability on the grounds (1) that the flight, which was undertaken for Alexander's convenience, was unauthorized; and (2) that the evidence failed to show either that the aircraft was negligently maintained or that it was negligently operated. The district judge, however, found for the plaintiff and assessed the damages at $75,000.00. See Alexander v. Civil Air Patrol, D.C., 134 F.Supp. 691.

Alexander was a leading professional golfer. In September, 1950 he was playing in a tournament at Kansas City, Missouri and he desired upon the conclusion of the tournament on September 24 to go to his home in Lexington, North Carolina to visit his family before leaving on a golfing tour in South America. He discovered that he could not obtain the desired transportation by commercial airline at Kansas City to carry out his plan and when this became known representatives of the Civil Air Patrol procured a ride for him in an Air Force aircraft from Olathe, Kansas to Louisville, Kentucky where commercial air transportation to his home was available. The plane was furnished by the South Dakota Wing of the CAP. It had been assigned to First Lt. Oliver A. Singleton, USAF, who was a Liaison Officer of the USAF attached to the South Dakota Wing. With Singleton as pilot and Alexander and two CAP officers as passengers the plane took off from Kansas City to Louisville. The two CAP officers went along apparently for pleasure. The sole purpose of the flight was to enable Alexander to reach his home. As the plane approached Evansville the fuel in one of its tanks ran low and, when the pilot attempted to switch to a full tank, a cotter pin on the handle of the switch sheared off and the change could not be made. Shortly thereafter both engines stopped for lack of fuel and a few minutes later, in attempting to land at the Evansville airport, the plane struck the ground and burst into flames. The pilot and the two CAP officers were killed and Alexander was severely burned and otherwise injured. The conclusion of the district judge that the aircraft was being operated at the time on the business of the United States in charge of an employee of the United States, acting in the line of duty, was based upon the relationship between the United States Air Force and the CAP and the liaison between them, and upon the circumstances under which the flight was undertaken.

The Civil Air Patrol was created in 1941 by Executive Order of the Director of Civilian Defense of the United States under the authority of the War Powers Act, 50 U.S.C.A.Appendix, § 601 et seq., and was later transferred to the War Department by Presidential order of April 29, 1943; and it functioned during the war under the Commanding General of the Army Air Force. It became a corporation by Act of Congress on July 1, 1946, whereby a number of private citizens were incorporated to encourage and aid American citizens in the contribution of their efforts and resources in the development of aviation and in the maintenance of air supremacy and to develop the voluntary contribution of private citizens to the public welfare. It was designed also to provide aviation education and training, especially to its senior and cadet members, and to encourage civilian aviation in local communities and to provide an organization of private citizens with facilities to aid in meeting local and national emergencies. The original membership consisted of more than 100,000 senior and cadet members; and eligibility for membership is determined by the constitution and bylaws of the corporation. It has no power to issue capital stock or engage in business for pecuniary profit, its object being solely of a benevolent character. It is required to make and transmit to Congress each year a record of its proceedings for the preceding year. 36 U.S.C.A. §§ 201-208.

By subsequent Act of Congress the Civil Air Patrol is established as a volunteer civilian auxiliary of the United States Air Force; and the Secretary of the Air Force, in order to assist the CAP in the fulfillment of the objectives set out in the earlier Act, is authorized, under regulations prescribed by him with the approval of the Secretary of Defense, to furnish the CAP from available stocks which are in excess of the Government's requirements, with aircraft, motor vehicles and related supplies. The Secretary of the Air Force is also authorized to permit the CAP to use such services and facilities of the Air Force as in his opinion are required by it to carry out its mission and to this end to furnish it with fuel; and to establish and maintain liaison offices of the Air Force at national, state and regional headquarters of the CAP; and to detail military and civilian personnel of the Air Force to such offices and to assist the CAP in its training program. 5 U.S.C.A. § 626l.

Air Force Regulations promulgated under the authority of this statute provide for the administration and organization of the CAP, auxiliary of the Air Force. See Air Force Regulations 45-11 to 45-14. National headquarters are provided, which are directed to supervise all CAP activities under the jurisdiction of the Air Force. It is provided that the National Commander of CAP shall be a regular United States Air Force general officer who serves in the dual capacity as its head and also as commanding general of the Headquarters Squadron, CAP, USAF. At the time of the accident in this case the National Commander was Major General Lucius B. Beau, USAF, and Lt. Singleton, USAF had been assigned as liaison officer to the South Dakota Wing of the organization, which is one of the fifty-one wings set up in the continental United States and the Territories under the Regulations. As a liaison officer he was part of the headquarters squadron and was not subject to the orders of the CAP Wing Commander or his staff. His duties as liaison officer were to advise and assist the CAP Wing Commander and staff on military matters in the administration of CAP units in the state to which he was assigned. He was furnished with an Air Force plane which he was to utilize as much as possible on trips of not more than one day to visit CAP units. He was permitted to absent himself from his station for periods of twenty-four hours in the performance of his instructional duties. He was to devote full time to the execution of his duties, as above set out, but was cautioned that this should not be construed as limiting by any means his duties as liaison officer. The importance of "selling" the CAP to the public was emphasized.

While the golf tournament at Kansas City in which Alexander was engaged was going on in September 1950, officers of the CAP were negotiating with a committee of the Professional Golfers Association (P.G.A.) in regard to a plan to raise money for the official purposes of the CAP, which included the recruiting of new members and the training of CAP cadets. This plan had received the approval of General Beau. It was contemplated that members of the P.G.A. would participate from time to time in golf tournaments in various parts of the country under the auspices of CAP; and that the golfers would donate their services and the funds derived from the tournaments would go to CAP. This organization on its part would undertake to transport the tournament players to and from the golf courses in suitable aircraft. The negotiations had not been completed and the project had not been formally approved by the headquarters of CAP but the golfers who were expected to participate had indicated their willingness to do so. Alexander was one of the golfers whom the officers of the CAP hoped to induce to co-operate in carrying out the plan. It was under these circumstances that Alexander's difficulty in securing air transportation to his home came to the knowledge of Col. Myhra, a CAP officer, and Capt. McCoy, an Air Force Liaison Officer, who were conducting the negotiations with the golfers. Through their efforts transportation was arranged for the flight which turned out disastrously. The South Dakota Wing agreed to furnish an Air Force plane, which had been assigned to Singleton, and upon the request of the...