Williams v. United States

• Decision Date: 05 October 1965
• Docket Number: No. 21825.,21825.
• Citation: 352 F.2d 477
• Parties: Allen WILLIAMS b/n/f Louise J. Smyre, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

352 F.2d 477 (1965)

Allen WILLIAMS b/n/f Louise J. Smyre, Appellant, v. UNITED STATES of America, Appellee.

No. 21825.

United States Court of Appeals Fifth Circuit.

October 5, 1965.

Vincent P. McCauley, Columbus, Ga., for appellant.

Sampson M. Culpepper, Asst. U. S. Atty., Floyd M. Buford, U. S. Atty., Macon, Ga., for appellee.

Before TUTTLE, Chief Judge, and PHILLIPS^* and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

Allen Williams, a thirteen year old boy, thinking that he was lighting an ordinary firecracker, lit a United States Army "M-80 Firecracker". The M-80 Firecracker is an explosive device the Army uses in field exercises. Williams severely injured both hands. In this action he seeks damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. The district court, sitting without a jury, denied recovery. We reverse and remand. We hold, under the doctrine of respondeat superior, that the injuries were caused by the negligence of an Army sergeant acting in line of duty.

I.

The essential facts are not in dispute. "M-80 Firecracker" is a highly explosive device (compared with ordinary firecrackers) simulating the sound of hand and rifle grenades, mortar shells, land mines, and other exploding weapons. This "simulator", so-called, consists of a small paper cylinder filled with powder, and a fuse. Its appearance suggests an ordinary type of firecracker: the cylinder is colored red, and bears the designation "M-80 Firecracker". Three to seven seconds after the fuse is lit, the simulator explodes.

Company B of the Ninth Infantry, Second Division, used such simulators in exercises carried on at Fort Benning, Georgia, in late 1962 and early 1963. In accordance with standard company procedure the supply sergeant of Company B issued a certain number of simulators to the platoon leaders, who distributed the M-80s to the men who were to use them. No count was kept of the number of simulators issued to, or used by, each soldier, but standard instructions were that after every exercise each man should turn back any unused simulators to the squad leader for return to the supply sergeant. Any simulator or ammunition overlooked by the end of the day was to be returned on discovery. After each exercise, the squad leader reminded the men to turn in all unused simulators and ammunition, but no soldier was searched without cause.

Sergeant James Smith was a section leader in Company B. After a field exercise held sometime in late 1962 or early 1963, Smith inadvertently kept one or more simulators in the pocket of his field jacket, and did not find out that he had done so until he got to his house, off the military base. Upon discovering the simulators, Smith put them in a cigar box in a bedroom dresser drawer, intending to take them back to the post the next day. Unfortunately for Allen Williams, Smith forgot all about the M-80s. In April 1963 Smith went overseas.

The simulators stayed in the cigar box until July 2, 1963. That day Allen Williams, while baby-sitting in Smith's house, saw the box in the dresser drawer and asked Mrs. Smith what was in it. She took the box out of the dresser, opened it, and gave Williams a simulator. He took it home, lit the fuse, and, holding it in both hands, walked toward the kitchen door, meaning to throw it outside. The simulator went off, severely injuring both his hands.

Louise J. Smyre, mother of Allen Williams, on behalf of her son, sued the United States in the District Court for the Middle District of Georgia. The court found that the Government had not been negligent in its use of simulators or in its supervision of Sergeant Smith, and that, in any event, the act of Mrs. Smith in giving the simulator to Williams was "the proximate cause" of the injury. On the basis of these findings, the court denied recovery.

II.

Section 1346(b) of Title 28, U.S.C., gives the district court exclusive jurisdiction over claims against the United States for injuries caused by the negligence "of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred". Section 2671 recites that "`Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty". The reference to members of the military forces "acting in line of duty" could suggest an intention to incorporate federal law.¹ The Supreme Court has held, however, that the determination whether a soldier was "acting in the line of duty" is to be determined by the applicable state rules of respondeat superior. Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761. Accordingly, although the present action is a creature of federal statute, its substantive character is controlled by Georgia law.²

We do not cavil at the district court's holding that the army was not negligent in its use of M-80 firecrackers or in the supervision of Sergeant Smith. This holding is supported by proper findings that simulators are a useful aid to military training; that the army's handling and distribution of simulators at Fort Benning was reasonable in the circumstances; that Sergeant Smith's superiors had no reason to suspect he would take explosive materials off the post, had given adequate instructions regarding the return of unexploded simulators, and had no duty to search every man in the outfit at the end of every exercise.

The Government's exposure, however, does not end with the holding that Sergeant Smith's superiors acted reasonably. The Government must also answer for the negligence of Smith himself. If, as a matter of Georgia law, Smith was (a) acting within the scope of his employment, and (b) negligent with regard to Williams, then Williams, absent any affirmative defense, is entitled to recover.

First, we conclude that Smith was acting in line of duty when he inadvertently carried off and failed to return the injury-causing simulator. In Georgia, as in most jurisdictions, the mere fact that a servant's negligent act is expressly forbidden by the master does not absolve the master of vicarious liability. The test is whether the servant's negligent act is within the class of acts that the servant is authorized to perform. "If the act is within the class, the master is bound, although the servant is forbidden to perform the particular act." Evans v. Caldwell, 1936, 52 Ga.App. 475, 184 S.E. 440, aff'd. 184 Ga. 203, 204, 190 S.E. 582.³ Another formulation of the test applied by Georgia courts is that a master will be liable for injury to third persons caused by a servant's negligent act done in furtherance of the master's business — that is, while the servant is engaged in serving the master. Georgia Power Company v. Shipp, 1943, 195 Ga. 446, 24 S.E.2d 764, 766-769.⁴

In our view, Smith's failure to return the injury-causing simulator constituted negligent performance of an authorized act done in furtherance of Government business. The Government's position — that because the specific acts of taking the simulators home and leaving them in a dresser drawer were unauthorized, indeed forbidden, Smith "stepped aside from his employment", and the United States is therefore not liable — is a misapplication of the Georgia test. Smith was not on a frolic of his own, prohibited or allowed, when he performed the allegedly negligent acts; his departure from the prescribed course was itself negligence. If Smith's superior officers had authorized his negligent act, the doctrine of respondeat superior would have been irrelevant. In short, since the Government authorized Smith to handle simulators in line of duty, the Government must answer for his careless mishandling of them.

The defendant, in its brief, quotes from several federal court decisions holding misconduct by military personnel to be out of the line of duty. In Voytas v. United States, 7 Cir. 1958, 256 F.2d 786, a soldier stole explosives from a military base in Virginia and, while on leave in Chicago, gave them to a civilian who detonated them, causing injury. In Gordon v. United States, Ct.Cl. 1960, 180 F.Supp. 591, a soldier stole grenades from a base in North Carolina, and exploded them in a New York bar while on leave. In King v. United States, 5 Cir. 1959, 178 F.2d 320, an army air force cadet who became drunk while off his post returned, took off in an airplane without permission, and crashed into the plaintiff's house. In each of these cases, (a) there was a willful or wanton, rather than a merely negligent, deviation from the authorized course of employment; and (b) importantly, the employee performed the injurious act while on a frolic of his own, and not while engaged in serving his master. Each of these factors dilutes a master's responsibility for his servant's wrongful acts. In the one Georgia case cited by the Government, Parry v. Davison-Paxon Co., 1952, 87 Ga.App. 51, 73 S.E.2d 59, two truck drivers, on an errand for the defendant employer, stopped en route and broke into the plaintiff's house, apparently intending to commit a robbery. Again, the elements of willful misconduct and, especially, detour from the course of employment distinguish that case from the case before the Court.

III.

Did Smith, in taking the simulators off the post and leaving them in a drawer, breach a duty of care owed Williams? The Georgia rule is that a person dealing with a dangerous instrumentality is bound to exercise only ordinary care. But what constitutes ordinary care "varies with the instrumentality dealt with; where it is inherently dangerous, more care is necessary in regard to it than where it is, according to common experience, a thing relatively harmless even when * * * negligently used". Hand v. Harrison, 1959, 99 Ga.App. 429, 108 S.E.2d 814, 816.⁵ In Georgia...