Wibye v. United States

• Decision Date: 22 December 1949
• Docket Number: 27694.,No. 27732,27732
• Court: U.S. District Court — Northern District of California
• Parties: WIBYE v. UNITED STATES (two cases).

87 F. Supp. 830

WIBYE v. UNITED STATES (two cases).

Nos. 27732, 27694.

United States District Court N. D. California, S. D.

December 22, 1949.

Nichols, Richard, Allard & Williams, Oakland, Cal., for plaintiffs.

Frank J. Hennessy, United States Attorney, San Francisco, Cal., for defendant.

GOODMAN, District Judge.

In these two consolidated actions for damages for personal injuries brought under the Federal Tort Claims Act, 60 Stat. 843, 28 U.S.C.A. 931 et seq. now 1346, 2671 et seq., the liability of the United States depends upon whether John E. Hadley, a civilian employee of the Stock Control Division of the United States Quartermaster Corps, was acting "within the scope of his office or employment," at the time the government automobile he was driving struck that of the plaintiffs.

The Facts

The evidence at the trial was substantially as follows:

Hadley's duties required him to travel up and down the west coast of the United States, visiting various Quartermaster Depots and performing certain work there. His traveling was done in a government automobile. His work schedule for November 1946 was introduced in evidence, from which it appeared that it was his duty to proceed from Seattle, Washington, to the Stockton Quartermaster Depot, located at Lathrop, near Stockton, in the San Joaquin Valley, California. The schedule also called for certain days to be spent by him at Lathrop. It also provided for a travel period, upon completion of his assignment at Lathrop, en route back to Fort Lewis, Washington, near Seattle, at which place he was scheduled to arrive on November 11th.

On the night of Thursday November 7, Hadley telephoned from Lathrop to his mother, Mrs. Edna Fipps, who lived in San Francisco, and informed her that he would leave Lathrop on Friday and drive to San Francisco for the purpose of having dinner with her Friday evening, on his way back to Fort Lewis, and also for the purpose, incidentally, of cashing some checks. On Friday afternoon, while en route from Lathrop to San Francisco over highway #50, at a point near Dublin, in the County of Alameda, Hadley's car careened over onto the wrong side of the road and crashed into the automobile in which the plaintiffs were riding at the time. Hadley was instantly killed and plaintiffs each suffered severe and permanent injuries. That plaintiffs' injuries were caused by the negligence of Hadley is undisputed.

The distance from Lathrop, California, to Fort Lewis, Washington, is approximately 900 miles. At the time of the accident, Hadley had only proceeded a short distance on the long trip ahead of him. The coast route through San Francisco, which he elected to take, is approximately 60 miles farther than the inland route from Lathrop through Sacramento, California to Seattle.

Discussion.

Under California law, proof of car ownership gives rise to the inference that an employee of the owner, in possession of the owner's car, is on the business of the owner. Plaintiffs contend that this inference amounts to prima facie proof that Hadley was acting within the scope of his employment by the United States at the time of the accident.¹ We may pass this question inasmuch as other admissible evidence establishes liability.

Hadley's mother was called as a government witness and her hearsay testimony as to the telephone conversation with her son was elicited during her examination. Both plaintiffs and the government have advantaged themselves of the testimony, hearsay though it was, each interpreting it favorably to their or its cause and neither side raised any question as to its admissibility. Because of the importance of this testimony in determining whether Hadley's trip to San Francisco was the first leg of his journey back to Seattle or a distinctly personal side trip, we have conducted independent research and are satisfied that the telephone conversation is admissible. This is so because it falls within a well-recognized exception to the hearsay rule, namely, the so-called "state of mind exception." The rationale of this exception is that a person's own statement of a presently existing state of mind, made in a natural and unsuspicious manner, is proper evidence with respect to a design or intent to perform a specific act. It is clear that Hadley's statement to his mother was a completely unrehearsed and spontaneous announcement of his plan, intent and purpose of returning to Fort Lewis, Washington, via San Francisco. His mother's testimony as to such statement was therefore admissible. Mutual Life Insurance Company v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706. See, also, note 113 A.L. R. 268; 3 Wigmore on Evidence, 2nd Ed. Section 1725, page 696.

The prime legal issue which the Court is required to resolve is whether, in proceeding from Lathrop to Fort Lewis, Washington, there was such a deviation from the route of return to Fort Lewis as would take Hadley outside the scope of his employment and put him on his own business rather than that of the government. As to this, it is sufficient to say that no specific travel route was prescribed by the government for Hadley to follow. It is evident from the nature of the itinerary that the choice of routes was his own. It was only required that after finishing his labors at Lathrop, Hadley was to report to Fort Lewis...