United States v. Campbell, 12368.

• Decision Date: 06 April 1949
• Docket Number: No. 12368.,12368.
• Citation: 172 F.2d 500
• Parties: UNITED STATES v. CAMPBELL.
• Court: U.S. Court of Appeals — Fifth Circuit

172 F.2d 500 (1949)

UNITED STATES v. CAMPBELL.

No. 12368.

United States Court of Appeals Fifth Circuit.

February 11, 1949.

Rehearing Denied April 6, 1949.

J. Skelly Wright, U. S. Atty., and N. E. Simoneaux and Amos L. Ponder, Asst. U. S. Attys., all of New Orleans, La., for appellant.

Benjamin B. Taylor, C. V. Porter, L. W. Brooks, and James R. Fuller, all of Baton Rouge, La., for appellee.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

HUTCHESON, Circuit Judge.

Brought under the Federal Tort Claims Act,¹ the suit was for damages for personal injuries received by plaintiff, a civilian, at the hands of a member of the Naval Forces of the United States.

The claim was that while she was standing on the sidewalk near the railroad station, she was negligently and wrongfully collided with and knocked down by a sailor who, "in line of duty",² was running to board a troop train then slowly moving out of the station.

The defenses were a general denial, a plea of contributory negligence, and a plea that the negligent act complained of was not, as provided in the act "an act or omission of an employee of the Government while acting in 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."

At the conclusion of plaintiff's evidence,³ which showed merely that she had been knocked down by a sailor running to catch a troop train, plaintiff rested. Whereupon defendant also rested, and the case was closed without any evidence having been offered as to the reason why, or the circumstances under which the sailor was where he was when he struck her, or that he and the group with him were acting under command or orders at the time.

The district judge was of the opinion that proof that the offending sailor was a member of a group being transported on the troop train, and that at the time of striking plaintiff he was running to board it, without more, showed that the sailor was acting in line of duty within the meaning of the Tort Claims Act, and, therefore, within the scope of his office and employment under circumstances where the United States if a private person would be liable to the claimant in accordance with the law of Louisiana. He, therefore, rejected defendant's contention that the case failed for want of proof, and, finding for plaintiff, assessed her damages at $21,018.80.

The United States is here insisting: (1) That the finding as to liability is wholly erroneous and may not stand; and (2) that the quantum of damages is greatly excessive. Pointing to the uniform course of decision in Louisiana holding an employer not liable under the doctrine of respondeat superior where employees are engaged not in carrying out the business of the employer but in excursions or enterprises of their own and to 28 U.S.C.A. § 931(a), note 1, supra, making the government liable only under circumstances where it would, if it were a private person, be liable, it insists that the judgment may not stand.

Appellee, on her part, invoking the definitional section 941(c), "`acting within the scope of his office or employment,' in the case of a member of the military or naval forces of the United States, means acting in line of duty," cites opinions of the Attorney General and rulings of the Judge Advocate General given in connection with claims of military personnel against the Government, construing the phrase "line of duty" most liberally. Relying upon these opinions, she insists that the words "line of duty" as used in the Tort Claims Act, must be held to have been deliberately selected and used to carry the latitudinous meaning accorded them in these official interpretations and to make the United States liable, in damages for practically everything⁴ a sailor or soldier does.

In addition to these government rulings, appellee cites two court cases involving members of the National Guard in which "line of duty" was given a broad meaning. One of these cases, Globe Indemnity Co. v. Forrest, 165 Va. 267, 182 S.E. 215, involving an enlisted member of the Virginia National Guard, was brought under the Virginia workmen's compensation law. The other, Doke v. United Pac. Ins. Co., 15 Wash.2d 536, 131 P.2d 436, 135 P.2d 71, involved the construction of an insurance policy insuring all members of the National Guard of the State of Washington.

The decision of the first cited case turned on the peculiar relationship of employer and employee existing between the National Guard and its members. It was claimed in defense that, when the claimant was given a pass to leave the military reservation and proceeded to avail himself of the privilege, there was a cessation of the relation of master and servant between himself and the State of Virginia. The court rejected the view as applied to the relations between the guardsman and the state, saying 165 Va. 267, 182 S.E. 216, however, "if this case involved ordinary civil employment, this position might or might not be sound, depending upon the circumstances of the particular case."

Here, no question of severance from employment, none of relationship between employer and employee as between each other, none of the law of workmen's compensation, is presented.

In the second case cited, the soldier when injured was on his way to the armory to attend drill, and it was properly held in suit by him on the policy that under its terms, which covered injury incurred in the line of duty, plaintiff was entitled to recover.

We agree with appellant that the United States was not liable and that the judgment for plaintiff must be reversed and here rendered for defendant.

The whole structure and content of the Federal Tort Claims Act makes it crystal clear that in enacting it and thus subjecting the Government to...