United States v. Eleazer

• Citation: 177 F.2d 914
• Decision Date: 07 November 1949
• Docket Number: No. 5938.,5938.
• Parties: UNITED STATES v. ELEAZER.
• Court: U.S. Court of Appeals — Fourth Circuit

177 F.2d 914 (1949)

UNITED STATES v. ELEAZER.

No. 5938.

United States Court of Appeals Fourth Circuit.

Argued October 18, 1949.

Decided November 7, 1949.

Morton Hollander, Attorney, Department of Justice, Washington, D. C. (H. G. Morison, Assistant Attorney General; Ben Scott Whaley, U. S. Attorney; Charleston, S. C., Paul A. Sweeney and Massillon M. Heuser, Attorneys, Department of Justice, Washington, D. C., on brief), for appellant.

James F. Dreher, Columbia, S. C. (Blatt & Fales, Barnwell, S. C., and Robinson & Robinson, Columbia, S. C., on brief), for appellee.

Before PARKER, Chief Judge and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by the United States from a judgment under the Federal Tort Claims Act, 60 Stat. 842, 28 U.S.C.A. § 921 et seq. now §§ 1346, 2671 et seq.. The plaintiff was injured in the collision between an automobile which he was driving and one owned and driven by Lieutenant James B. Talley of the United States Marine Corps. The trial judge held the United States liable under the Tort Claims Act for plaintiff's injury and the correctness of that holding is the only question presented by the appeal.

The facts are that Lieutenant Talley, who had been stationed at the Cherry Point Marine Base in North Carolina, had received an order under date of August 15 directing him to report at Corpus Christi, Texas, but authorizing him to "delay in reporting until September 1, 1946, such delay to count as leave" and providing that "the travel herein enjoined is necessary in the public service". He left Cherry Point on August 20, driving his own automobile and accompanied by his sister, who had been visiting him. He intended to drive with his sister to Raleigh, N. C. and then go to his home in Atlanta, Georgia, whence after a brief stay he would proceed in his automobile to his post at Corpus Christi in time to report for duty on September 1, as required by his orders. Shortly after he left Cherry Point, his automobile suddenly swerved to the left and crashed into the car of plaintiff, inflicting the injuries for which judgment was rendered. There is no question but that, at the time of the collision, Talley was driving on the route he would have had to follow in driving by car from Cherry Point to Corpus Christi and that under his travel orders he was entitled to reimbursement from the government for mileage at a fixed rate by the nearest route, whatever means of transportation he may have chosen. There is likewise no question but that Talley was on his way home for the enjoyment of his deferred leave and that the government had nothing to do with the selection of his own automobile as his means of transportation and exercised no control over the manner of its operation.

Under these circumstances we think that judgment should have been entered for the government. The United States is liable under the Tort Claims Act only where the employee who causes injury is "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." Sec. 410(a) now 28 U.S. C.A. § 2674. It seems perfectly clear that, in driving his own automobile on this trip home on deferred leave, Lieutenant Talley was acting, not within the scope of his office or employment as a lieutenant in the Marine Corps, but for his own use and benefit and subject to the control of no one but himself. It is true that he had been ordered to report on September 1 at Corpus Christi and had been directed to travel there so that he could be reimbursed for the expense of travel at the regular mileage rate; but he and not the government selected the means of transportation and no officer of the government had any right to exercise control over his operation of the means chosen. All that the government was interested in was that he report for duty at Corpus Christi on Sept. 1, and he could travel there by rail, by bus, by car or by air as he saw fit. When he chose to drive his own car, instead of availing himself of commercial transportation, he was acting in furtherance of his own purposes, not those of the government; and his action in driving the car cannot reasonably be said to have been action taken within the scope of his employment or office.

The ground of liability of the master for the negligent act of the servant is that the servant is conducting the master's affairs and that the latter has the right of control with regard thereto and is bound to see that they are so conducted that others are not injured thereby. Philadelphia & R. Coal & Iron Co. v. Barrie, 8 Cir., 179 F. 50, 52, 53. As said by Chief Justice Shaw of Massachusetts in the leading case of Farwell v. Boston & Worcester R. Corp., 4 Metc., Mass., 49, 38 Am.Dec. 339, 340:

"It is laid down by Blackstone, that if a servant, by his negligence, does any damage to a stranger, the master shall be answerable for his neglect. But the damage must be done while he is actually employed in the master's service; otherwise, the servant shall answer for his own misbehavior. 1 B. Com. 431; McManus v. Crickett 1 East 106. This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it."

It is in application of this principle that the doctrine respondeat superior is held to apply "only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose." (Italics supplied.) Wyllie v. Palmer, 137 N.Y. 248, 33 N.E. 381, 383, 19 L. R.A. 285; Martin v. Greensboro-Fayetteville Bus Line, 197 N.C. 720, 150 S.E. 501; Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296.

In Standard Oil Co. v. Parkinson, 8 Cir., 152 F. 681, 682, the late Judge Walter H. Sanborn laid down a test for the application of the rule respondeat superior, which is an aid to clear thinking in a case such as this. He said:

"The test of one's liability for the act or omission of his alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect. There can be no recovery of a person for the act or omission of his alleged servant under the maxim, `respondeat superior,' in the absence of the right and power in the former to command or direct the latter in the performance of the act or omission charged, because in such a case there is no superior to respond."

Applying the rule as thus stated to the facts of the case before us, it is clear that Lieutenant Talley was not engaged in business of the government at the time of the collision which resulted in plaintiff's injuries. The relationship of master and servant did not exist with respect to the very transaction out of which the injury arose; i. e. with respect to driving the automobile. And to apply the test laid down by Judge Sanborn, it is clear that there was no right on the part of the government to direct his driving. He was riding in his own automobile because he chose to do so, and for no other reason; and the fact that the government was to pay him mileage to Corpus Christi is...