Whittle v. United States

• Decision Date: 21 July 1971
• Docket Number: Civ. A. No. 1113-S,1114-S.
• Parties: Mary Jo WHITTLE, as Administratrix of the Estate of Peggy Diana Whittle, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Shirley H. DAVIS, as Administratrix of the Estate of Don M. Davis, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Alabama

328 F. Supp. 1361

Mary Jo WHITTLE, as Administratrix of the Estate of Peggy Diana Whittle, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Shirley H. DAVIS, as Administratrix of the Estate of Don M. Davis, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 1113-S, 1114-S.

United States District Court, M. D. Alabama, S. D.

July 21, 1971.

Francis H. Hare, Jr., Hare, Wynn, Newell & Newton, Birmingham, Ala., for plaintiffs.

Gerard R. Lear, Dept. of Justice, Washington, D. C., Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., for defendant.

MEMORANDUM OPINION

VARNER, District Judge.

Plaintiffs sue the government for wrongful deaths of their respective intestates who were killed in a helicopter crash. Plaintiffs' intestates were passengers on a military aircraft piloted by one Goss, an Army Reserve pilot who had no authority to take aboard civilian passengers, at the time of the accident resulting in the death of all three. A log entry was introduced in evidence by Plaintiffs indicating that Goss had rented a helicopter and that the rentals had been charged to the United States for reserve pilot training. Goss was a reserve pilot with authority to rent such an aircraft for six hours during the month in question "to sustain his rotor wing proficiency". The plane was available to rentals both to the government and to private individuals, and Goss was qualified to rent the plane either as a reserve pilot or as a private individual. There was no evidence regarding the source of the abbreviation "charge reserve" appearing on the log as "c reserve", though it may be inferred that this was done either on the authority of Goss himself, or by implication by the lady who entered the log entry based on the fact that Goss had authority to so charge the rentals for the flight because he did have orders authorizing him to rent an aircraft for sustaining his proficiency in rotor-wing flight.

As evidence that Goss was not acting within the scope of his authority, the government introduced evidence that, immediately prior to and during the flight in question, Goss dressed as a civilian while customarily such pilots wore traditional flight uniform; that, in violation of regulations, Goss filed no flight plan and, apparently, got no weather briefing; that he took on unauthorized passengers in violation of regulations; and that he did not fly at the required altitude.

Evidence indicated, and the parties seemed to agree, that the accident was caused by the pilot's having flown at prohibited altitudes, striking an electrical wire at an altitude of between 36 and 50 feet and resulting in the crash fatal to all three occupants. The evidence showed that the aircraft had departed from Napier Airfield at Dothan, Alabama, without a flight plan, proceeded directly to the airport at Headland, Alabama, some ten miles distance, landed at Headland where two passengers, the Plaintiffs' intestates, boarded and immediately departed from Headland for an unknown destination, still without flight plan; that some three or four miles from the Headland airport, witnesses saw the aircraft in question at altitudes varying between 100 and 36 feet, that one of the witnesses noticed the aircraft for about a mile prior to the crash and noticed that the plane was rocking in an unusual manner for some distance before it crashed. There was evidence tending to show that the government investigators found that the accident was caused by pilot error and that the government had paid the Alabama Power Company for damages to the wire struck by the plane.

The Plaintiffs argued that the pilot attempted to fly under the wires and the accident was caused by his last-minute change of plans in attempting to clear them. There was evidence from which the Court might infer that the pilot struck the wires because he failed to see them.

CONTROLLING LAW

Under the Federal Tort Claims Act, the courts are in accord and the parties seem to agree that questions of agency and questions of what acts may be considered wanton, depend upon state law. 28 U.S.C.A. § 2674; Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761; Underwood v. United States, 356 F.2d 92 (5th Cir., 1966); Mider v. United States, 6th Cir., 322 F.2d 193.

The fact that an agent is combining personal pleasure with his employer's business does not necessarily mean that he is acting outside of the scope of his authority as agent so as to release his employer of liability. Nelson v. Johnson, 264 Ala. 422, 88 So.2d 358 (1956). A servant or agent may be within the scope of his authority though he is doing his work by improper or unlawful means or in a way not authorized by the employer or even contrary to the employer's expressed directions. Hardeman v. Williams, 169 Ala. 50, 53 So. 794 (1910); Lerner Shops of Alabama v. Riddle, 231 Ala. 270, 164 So. 385 (1936); Luquire Ins. Co. v. McCalla, 244 Ala. 479, 13 So.2d 865 (1943); United States Steel Co. v. Butler, 260 Ala. 190, 69 So.2d 685; King, Inc. v. Thomas, 37 Ala.App. 244, 66 So.2d 602. A master, under Alabama law, is responsible for his servant's acts within the scope of his authority, even though the acts were done willfully or maliciously, City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, and even though the servant's acts may constitute homicide, Mt. Vernon-Woodberry Mills v. Little, 222 Ala. 605, 133 So. 710. Alabama has not adopted the rule, Restatement of Agency § 242, exempting from liability of the master any responsibility for acts done to unauthorized passengers. Hottovy v. United States, D.C., 250 F.Supp. 315.

In Alabama the legal effect of an agent's giving an invitation to ride to a third party in violation of the rule of his principal is that, as to the master, the invitee of the agent is no more than a trespasser and, as such, is legally entitled not to be willfully or wantonly injured by the master or the agent of the master acting in the scope of his authority. Jewel Tea Co. v. Sklivis, 231 Ala. 590, 165 So. 824; Perry Supply Co. v. Brown, 221 Ala. 290, 128 So. 227; Harper v. Griffin Lumber Co., 250 Ala. 339, 34 So.2d 148. Inherent in wanton negligence is the idea of moral fault arising from the doing or failing to do an act with consciousness that the act or omission would probably cause serious injury and with reckless indifference to consequences. Alabama Great So. R. Co. v. Louisville & Nashville R. Co., 5th Cir., 224 F.2d 1, 50 A.L.R.2d 1302.

Obviously, the burden of proof in these cases is on the Plaintiffs to establish wanton misconduct on the part of the government's agent, acting in the line and scope of his authority as such.

An act of an agent, to be performed within the scope of his authority must be performed in the promotion of business of his employment, and it must not be the result of, or be impelled by, wholly personal motives if the master is to be liable for the act of the servant. Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 So. 727; Birmingham News Co. v. Browne, 228 Ala. 395, 153 So. 773; Koonce v. Craft, 234 Ala. 278, 174 So. 478; Railway Express Agency v. Burns, 255 Ala. 557, 52 So.2d 177; Jessup v. Shaddix, 275 Ala. 281, 154 So.2d 39. It should be noted that liability for injuries caused by the wanton conduct of a servant must be determined by the duty...