United States v. Romitti

• Decision Date: 18 July 1966
• Docket Number: No. 19853.,19853.
• Citation: 363 F.2d 662
• Parties: UNITED STATES of America, Appellant, v. Richard M. ROMITTI et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.2d 662 (1966)

UNITED STATES of America, Appellant, v. Richard M. ROMITTI et al., Appellees.

No. 19853.

United States Court of Appeals Ninth Circuit.

July 18, 1966.

John W. Douglas, Asst. Atty. Gen., Manuel L. Real, U. S. Atty., Morton Hollander, John C. Eldridge, Walter H. Fleischer, Attorneys, Dept. of Justice, Washington, D. C., for appellant.

E. Eugene Davis, Jr., Patrick Davis, of Hindman & Davis, Los Angeles, Cal., for appellee.

Before BARNES, MERRILL, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

This is an appeal from a judgment against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2674, for damages resulting from an automobile accident caused by the negligent driving of Mr. Moore, an employee of the United States.

All agree that the question presented is whether under the doctrine of respondeat superior as applied in California (where Mr. Moore's negligent act occurred) a private employer would be liable for plaintiff's injuries in the circumstances of this case. See, e. g., McCall v. United States, 338 F.2d 589, 592 (9th Cir. 1964); Witt v. United States, 319 F.2d 704, 707-708 (9th Cir. 1963). The United States contends the district Court erred in holding that Mr. Moore "was operating his automobile within the course and scope of his employment" when the accident occurred. Under California law this was a determination to be made by the trier of fact upon a weighing of all of the pertinent circumstances. Loper v. Morrison, 23 Cal.2d 600, 145 P. 2d 1 (Sup.Ct.Cal.1944). The issue is whether the district court's finding was clearly erroneous.

The evidence was as follows. Mr. Moore was employed by the United States as an electronics engineer assigned to Edwards Air Force Base, Kern County, California. Edwards Air Force Base maintained a secondary facility for parachute testing near El Centro, California, about 240 miles away. Mr. Moore and two other government employees (Mr. Brown, an electronics engineer and the project supervisor, and Mr. Rathbun, an electronics technician) were ordered to travel from the Kern County base to the El Centro base "to support physiological jump tests for Dyna Soar Program", and then to return to the base in Kern County. They were authorized to travel by government or commercial carrier, either air or surface, or by privately owned automobile. Travel by private automobile was "authorized between Edwards Air Force Base, California and El Centro, California, and return, only," and was to be reimbursed at the rate of ten cents per mile. Per diem was authorized in the amount of $16.00 per day, including travel time. The total cost attributable to travel was not to exceed what the cost would have been if first-class rail transportation were used.

After working at their regular duty stations during the morning of July 11, 1962, the three men left their office building about noon to drive to the El Centro facility in Mr. Moore's car. They took with them, for use in the scheduled parachute test, two electronic devices (valued at $6,600 each) and certain hand tools, all belonging to the government. They drove directly to El Centro, arrived about 5:00 p. m., and checked in at a local motel. There they met with the parachutist and with representatives of the manufacturer of the electronic equipment which was to be tested. The test could not be held the next day because of bad weather; on the second morning the men drove to the test site with the equipment and the test was conducted. Mr. Moore's car was used in carrying the men and their equipment about the base — a proper and compensable use of the vehicle under the employer's orders.

The men then returned to the motel, packed, and began the return trip to the Kern County base, transporting the electronic equipment, the hand tools, and the test data recorded on two rolls of magnetic tape and one roll of graph tape. They started the return journey between 10:30 and 11:00 a. m. The accident occurred at 1:30 p. m. on the direct route between the El Centro and the Kern County bases. There was testimony that if the men had arrived late in the afternoon they could have proceeded directly to their homes, but their vacation time would have been reduced by the number of hours remaining in the work day. Mr. Rathbun, the only one of the three men who survived the accident, testified that they intended to return directly to the Kern County base, as indeed their orders appeared to require, and that they expected to arrive during regular duty hours.¹

To summarize, the trier of fact had before it evidence that Mr. Moore was traveling on direct orders of his employer and for the sole purpose of serving his employer's business; that he was transporting property of the employer and fellow employees (including his supervisor), both necessary to the performance of that business; that he was traveling on the most direct route between two of his employer's work locations; that he was using an expressly authorized means of transportation; that he was driving during regular working hours; and that he was being paid his regular salary plus per diem, plus costs of transportation. This was enough to support a finding that Moore's negligence occurred "in the transaction of the business of the agency," and therefore to justify the conclusion that a private employer would be liable under California law. Calif. Civil Code § 2338.

The government's argument to the contrary is based on this court's decision in Chapin v. United States, 258 F.2d 465 (9th Cir. 1958), which sustained a trial court determination that a soldier was not acting within the scope of his employment when involved in an accident while driving between posts on a permanent change of station under orders authorizing use of his personal automobile. The government reads Chapin as deciding that under California law an employee driving his own automobile cannot, as a matter of law, be acting within the scope of his employment where use of the private automobile is permissive rather than required, the employer exercises no control over the details of the driving, and driving is not a part of the employee's normal duties.

It is clear from a reading of Chapin that the court deliberately avoided any announcement that the presence of these or any other specific circumstances provided an invariable test for determining whether negligent acts were within the scope of the actor's employment. The court noted, adding the emphasis, that under California authority, "In the last analysis, each case must be determined on its own peculiar facts and circumstances," and continued, "no single relevant factor is necessarily controlling." 258 F.2d at 467.

Even a brief review of the myriad of California cases in this area demonstrates that the possible permutations of relevant circumstances are so infinite that decision by classification or rule of thumb would invariably lead to arbitrary and unjust results.

In the present case the flat rule which the government suggests would preclude employer liability in circumstances in which the purpose of the rule requires its imposition. As Chief Justice Traynor said in Johnston v. Long, 30 Cal.2d 54, 61, 181 P.2d 645, 651, (Sup.Ct.Cal.1947), "The principal justification for the application of the doctrine of respondeat superior in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business." This purpose requires that the employer assume those risks which are attributable to the employer's business, rather than to purely personal pursuits of the employee. Since the trip involved in the present case was undertaken to serve the purposes of the United States, the United States should bear the risks incidental to it. This basic fact is not affected by the circumstance that Mr. Moore's normal duties were those of an...