United States v. Mraz, 5696

• Decision Date: 18 April 1958
• Docket Number: No. 5696,5755.,5696
• Citation: 255 F.2d 115
• Parties: UNITED STATES of America, Appellant, v. Gregory J. MRAZ and Winifred Mraz, Appellees (two cases).
• Court: U.S. Court of Appeals — Tenth Circuit

255 F.2d 115 (1958)

UNITED STATES of America, Appellant, v. Gregory J. MRAZ and Winifred Mraz, Appellees (two cases).

Nos. 5696, 5755.

United States Court of Appeals Tenth Circuit.

April 18, 1958.

John Laughlin, Washington, D. C. (Joseph D. Guilfoyle, Washington, D. C., James A. Borland, Albuquerque, N. M., Paul A. Sweeney and Donald L. Young, Washington, D. C., were with him on the brief), for appellant.

Charles C. Spann (of Grantham, Spann & Sanchez), Albuquerque, N. M., for appellees.

Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

In this proceedings against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 and 2674, the question for decision is whether an officer of the armed forces, proceeding from one permanent duty station to another, in his own automobile, was "within the scope of his office or employment" at the time of an accident in which plaintiff-appellees were injured. No question of negligence is presented on appeal, and the parties agree that the law of New Mexico, as the place of the accident, is controlling. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761; Rayonier, Inc., v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed. 2d 354.

The undisputed facts are that Vanden-Huevel, an Air Force lieutenant stationed in California, received orders changing his permanent duty assignment to an air base in New Mexico. The special order authorized transportation either by commercial carrier or by privately owned conveyance, but in any event to arrive by March 5, 1954. If private transportation was used, four days travel time was allowed and mileage reimbursement authorized. The said travel as directed was deemed "necessary in the military service".

Vanden-Huevel and his wife departed their California base on February 27, 1954, and after intervening stops at Las Vegas, Nevada; Grand Canyon, Arizona; and Holbrook, Arizona, they arrived at Gallup, New Mexico on March 4, the date of the accident. They departed Gallup on Route 66, admittedly the most direct route for the ordered transfer, and the accident occurred some distance west of Albuquerque, where the officer planned to spend the night, and to proceed to his Clovis, New Mexico base the following day.

On these facts, the trial court concluded that the accident occurred in the scope of the officer's employment by the United States, and accordingly held it liable for injuries to appellees.

Questions of liability under the doctrine of respondeat superior for negligent or wrongful acts done in the scope of employment have arisen under an infinite variety of facts and circumstances, with almost equally diverse results. Sometimes the answer seems to turn on how the question is put. New Mexico has not had occasion to consider liability under the precise facts involved here, but it has long since adopted, and continues to adhere to, the general rule of agency, which holds the master liable for the acts of his servant if "* * * it be done while the servant was engaged upon the master's business * * * with a view to further the master's interest * * * and did not arise wholly from some external, independent, and personal motive on the part of the servant * * *." See Childers v. Southern Pac. Co., 20 N.M. 366, 149 P. 307, 308, citing Mechem on Agency, 2d Ed., Sec. 1960; see also Archuleta v. Floersheim Mercantile Co., 25 N.M. 632, 187 P. 272, 40 A.L.R. 199; Miera v. George, 55 N.M. 535, 237 P.2d 102. We took this view of the New Mexico law in White Auto Stores v. Reyes, 10 Cir., 223 F.2d 298; and it was confirmed in the kindred case of Lucero v. White Auto Stores, 60 N.M. 266, 291 P.2d 308, arising under the New Mexico Workmen Compensation Law, 1953 Comp. § 59-10-1 et seq. Making application of this liability concept, courts have generally held a master liable for the wrongful acts of his servant committed while driving his own automobile, when such acts were done or committed in furtherance of the master's business, and while such self-owned automobile was being driven with the express or implied consent of the master. See cases collected Annotation, 52 A.L.R. 287.

Specifically, it has been held, following North Carolina law, that an army officer traveling from one permanent base to another, in his privately owned automobile under orders authorizing the use of such automobile, with reimbursement for nearest route mileage, and also authorizing delay en route for leave purposes, was not acting within the scope of his employment when he was involved in an accident. United...