United States v. Becker

• Decision Date: 16 May 1967
• Docket Number: No. 21110.,21110.
• Citation: 378 F.2d 319
• Parties: UNITED STATES of America, Appellant, v. Edward C. BECKER, Administrator of the Estate of Ernest J. Becker, Deceased, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 319 (1967)

UNITED STATES of America, Appellant, v. Edward C. BECKER, Administrator of the Estate of Ernest J. Becker, Deceased, Appellee.

No. 21110.

United States Court of Appeals Ninth Circuit.

May 16, 1967.

Barefoot Sanders, Asst. Atty. Gen., David L. Rose, Atty., Harvey L. Zuckman, Atty., Civil Div. Dept. of Justice, Washington, D. C., Richard C. Gormley, present U. S. Atty., William P. Copple, former U. S. Atty., John Eldridge, Asst. U. S. Atty., Phoenix, Ariz., for appellant.

Robert C. Kelso, James Moeller, D. W. Grainger, Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, Ariz., for appellee.

Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge:

The personal representative of Ernest J. Becker, deceased, brought this action against the United States under the Federal Tort Claims Act (Act), 28 U.S.C. §§ 1346(b) and 2671 et seq. (1964), to recover damages for the wrongful death of Becker. Becker was killed while riding as a passenger in an airplane being used on a forest fire reconnaissance flight for the Forest Service of the United States Department of Agriculture. The airplane crashed while making low-altitude passes over a small fire in the Apache National Forest near Springerville, Arizona.

Plaintiff sought damages in the sum of $750,000. After a non-jury trial, the district court entered judgment for plaintiff in the sum of $322,995, plus costs. The United States appeals.

On or about June 5, 1962, the Forest Service entered into an agreement entitled "Survey of Aircraft Availability," with an airplane pilot named Robert McIlrath. Pursuant to that agreement, McIlrath made available to the Forest Service his Cessna 180 aircraft at the Springer-ville airport, and his services as pilot of that aircraft. During the succeeding twenty days, McIlrath made a number of flights at the request of the Forest Service for which he was paid $762, computed at the rate of $30.00 an hour.

At about 10:45 a. m. on June 25, 1962, a small forest fire was reported in the Apache National Forest. Fire fighters, under the supervision of the Springer-ville District Ranger Station, were dispatched on the ground to the fire for the purpose of suppressing it. At approximately 4:00 p. m. on that day, the Cessna 180 aircraft referred to above, piloted by McIlrath, with Kenneth Sahlin, the Fire Control Officer of the Apache National Forest, and Becker, also on board, began a reconnaissance flight of the fire area. The crash occurred during this flight, killing all three occupants.

On the issue of liability the United States does not question the trial court's finding and conclusion that Becker's status as a passenger in the airplane was such that the pilot owed him the duty of exercising reasonable care in the operation of the airplane.¹ Nor does it question the trial court's finding and conclusion that the airplane crash which resulted in the death of Becker was caused by the negligence of the pilot.

The United States does question, however, the finding and conclusion that at the time of the accident, the pilot, McIlrath, was an employee of the United States Government within the meaning of 28 U.S.C. §§ 1346(b) and 2671. Instead, the Government urges that McIlrath was rendering service for the United States as an independent contractor and the United States is therefore not liable under the Act.

Section 2671 defines "employee of the government" as including, among others, "* * * officers or employees of any federal agency * * *." Whether the pilot, McIlrath, was an employee of the Forest Service of the United States Department of Agriculture, is a question of federal law. Under federal law, the word "employee," as used in the Act, is to be read as having the same general meaning as the term "servant" has in the body of law relating to the doctrine of respondeat superior. Brucker v. United States, 9 Cir., 338 F.2d 427, 428, n. 2.

In the body of law relating to the doctrine of respondeat superior, certain criteria have been formulated for determining whether, under the circumstances of a particular case, an individual is a servant or an independent contractor. A list of the criteria most often applied is set out in Restatement (Second) Agency, § 220(2) (1958), quoted in the margin.² This section of Restatement (Second), was called to the trial court's attention in the Government's pre-trial brief.

In weighing the evidence to determine whether McIlrath was an "employee" of the United States at the time of the accident, the trial court exercised a fact-finding function. See Brucker v. United States, 9 Cir., 338 F.2d 427, 428, n. 3. There being no indication that the trial court applied irrelevant criteria in the instant case, it follows that its determination that McIlrath was an employee of the United States at the time of the accident, represents a finding of fact as to which we must apply the clearly erroneous test of Rule 52(a), Federal Rules of Civil Procedure. See El Paso Natural Gas Co. v. United States, 9 Cir., 343 F. 2d 145, 146.

There are a number of items of evidence in this case which, evaluated in the light of the criteria set forth in the Restatement (Second), tend to indicate that McIlrath was an independent contractor engaged by the Forest Service to provide a manned airplane for flight reconnaissance of fires in the Apache National Forest.

McIlrath was not in the Civil Service of the Federal Government and did not receive a fixed salary on a regular basis from the Forest Service. He was not subject to deductions from his compensation for retirement, health insurance, taxes and the like. He could refuse a call for his services without assigning substantial reasons therefor. He was not required to be available for service at any time, but only after being notified to assume a stand-by role.³

McIlrath was paid by the local Forest Service administrative officer under a voucher system, rather than by the Forest Service payroll section. His work for the Government was performed pursuant to a standard form written contract known as the "Survey of Aircraft Availability," which he entered into with the Forest Service. Under this contract, the rate of compensation covered not only his own services but the use of his private airplane. He was apparently required to maintain the airplane and provide the gasoline.

On the other hand, there are other items of evidence which, evaluated in light of the same criteria, tend to indicate that McIlrath performed his services as an employee of the Forest Service, leasing to the Government his own airplane to the extent that it was needed to perform his employment duties.

McIlrath did not enter into his contract with the Forest Service pursuant to competitive bidding, but after elaborate testing procedures, was selected by Forest Service personnel on the basis of his availability, technical competence and the suitability of his aircraft. This contract required McIlrath to meet Forest Service requirements in all respects.⁴ It also specified the pilot's home base.

McIlrath was not paid a lump sum for achieving a particular result, but was paid at the rate of $30 an hour for himself and his airplane, when called upon to fly reconnaissance missions. He was required to maintain his qualifications as a pilot according to Forest Service standards, including submission to annual inspections and checks, and participation in training courses.⁵ McIlrath could not designate others to fly his aircraft on reconnaissance flights.

McIlrath operated under the detailed control and direction of the Forest Service, as manifested by Forest Service regulations which were binding upon him, and through specific directions given to him by the Fire Control Officer. These regulations and directions specifically included the matter of minimum altitude for reconnaissance flights. While McIlrath could, for safety reasons, refuse to fly when requested or, for the same reasons, make his own decisions as to altitude or other aspects of flight, he was otherwise subject to close supervision and control in flight. The Fire Control Officer was in charge of each flight and told the pilot "when and where to go and what to do." If the Forest Service did not like McIlrath's flying techniques or the way he maintained his airplane, it could terminate his services.

Considering these contrasting items of evidence, we are not left with the definite and firm conviction that a mistake was committed by the trial court in making the ultimate finding that McIlrath was serving as an employee of the United States at the time of the accident. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Rederi A/B Soya v. SS GRAND GRACE, 9 Cir., 369 F.2d 159, 165.

In so concluding we have not overlooked the court decisions cited by the parties in which, under the varying circumstances of those cases, it was held that the individual in question was, or was not an employee of the United States. We regard the facts of ...