United States v. McRoberts

• Decision Date: 29 May 1969
• Docket Number: No. 22078.,22078.
• Parties: UNITED STATES of America, Appellant, v. Noel Hunt McROBERTS et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

409 F.2d 195 (1969)

UNITED STATES of America, Appellant, v. Noel Hunt McROBERTS et al., Appellees.

No. 22078.

United States Court of Appeals Ninth Circuit.

March 11, 1969.

Rehearing Denied May 29, 1969.

Robert Zener (argued), Washington, D. C., Wm. M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., Carl Eardley, Acting Asst. Atty. Gen., Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Patricia S. Baptiste, Attys., Dept. of Justice, Washington, D. C., for appellant.

Daniel C. Cathcart (argued), of Magana, Olney, Levy & Cathcart, Los Angeles, Cal., for appellees.

Before MERRILL, ELY and CARTER, Circuit Judges.

PER CURIAM:

The appellees instituted suit in the District Court against the Government under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674. The complaint alleged negligent operation of an automobile by a military serviceman named Bryant. The Government did not contest the allegation of negligence but contended that Bryant was not acting within the scope of his employment at the time of the accident out of which the suit arose. The District Court found that the serviceman was within the scope of his employment and entered judgment in favor of the appellees. The Government appeals. Our jurisdiction rests on 28 U.S.C. § 1291.

Bryant had been stationed at Travis Air Force Base, California, prior to the accident. In November, 1963, he received orders permanently transferring him from that station to the 315th Troop Carrier Group, Pacific Air Force, APO San Francisco, where he was to report on March 14th, 1964. In the interim, Bryant was authorized 45 days' leave following which he was to report for temporary duty, commencing January 20, 1964, at Pope Air Force Base in North Carolina. After a thirty-seven day training course there, he was to have spent an additional three days of temporary duty with the 405th Fighter Wing, Pacific Air Force, APO San Francisco, before his scheduled report to the 315th Troop Carrier Group on March 14th. The Government authorized Bryant to travel, if he so desired, by common carrier, in which event he was to ship his military gear. He elected, however, to drive his own automobile. Accordingly, he took his military gear with him in the car. The Government authorized advance travel pay and appropriate travel time for the distance between the military bases.

Bryant departed from Travis Air Force Base on November 19, 1963. He intended to spend the subsequent Thanksgiving and Christmas holidays with members of his family at their home in New Jersey. The next day, November 20th, he was driving east along cross-continental Route 66 in California when his negligent passing maneuver caused the accident for which the appellees contend that the Government is responsible. On November 23rd, Bryant returned to Travis Air Force Base, and his previous orders were cancelled shortly thereafter. He was charged with leave time for his days away from his military base and was required to refund his entire travel allowance. A few months later, Bryant was discharged from the Air Force.

In resolving the sole issue before us, we must apply the respondeat superior principles of California, the state wherein the alleged tort was committed. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); United States v. Romitti, 363 F.2d 662 (9th Cir. 1966); Witt v. United States, 319 F.2d 704 (9th Cir. 1963); Chapin v. United States, 258 F.2d 465 (9th Cir. 1958), cert. denied, 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed.2d 627 (1959). In our view, the facts of the present case are the same in all relevant aspects as those which were presented in our case of Chapin. We based the Chapin decision on a California case involving analogous facts. See McVicar v. Union Oil Co., 138 Cal.App.2d 370, 292 P.2d 48 (Dist.Ct.App.1956). In the light of these authorities, we must conclude that Bryant was not acting within the scope of his employment when the accident occurred.

The appellees argue that we should reach a different result on the basis of our decision in United States v. Romitti, supra. The Romitti court employed certain broad language, but we read the opinion as basing the ultimate conclusion upon the peculiar facts, significantly different from those before us now. The Government had ordered its...