Williams v. United States, 28870.

• Decision Date: 13 June 1956
• Docket Number: No. 28870.,28870.
• Parties: Althea G. WILLIAMS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

141 F. Supp. 851

Althea G. WILLIAMS, Plaintiff, v. UNITED STATES of America, Defendant.

No. 28870.

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

June 13, 1956.

Henry C. Clausen, San Francisco, Cal., for plaintiff.

Lloyd H. Burke, U. S. Atty., Frederick J. Woelflen, Asst. U. S. Atty., San Francisco, Cal., for defendant.

ROCHE, Chief Judge.

Plaintiff brought this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., to recover damages for injuries sustained by her due to the negligent operation of an army vehicle by an intoxicated soldier. The negligence and plaintiff's injuries were not disputed by the defendant. The sole question presented for consideration by the trial court was whether the soldier was acting within the course and scope of his employment within the purview of the Tort Claims Act. On June 4, 1952, this court entered judgment in favor of defendant. Williams v. United States, D.C., 105 F.Supp. 208. This judgment was affirmed by the Court of Appeals on September 8, 1954. Williams v. United States, 9 Cir., 215 F.2d 800.

On October 17, 1955¹ the Supreme Court of the United States vacated judgment for defendant and remanded the case for further consideration stating the following:

"* * * the judgment of the said U. S. Court of Appeals * * is hereby vacated, the case being controlled by the California doctrine of respondeat superior, and * * this cause * * * is hereby remanded to the United States District Court for the Northern District of California, for consideration in the light of that governing principle."

For the sake of continuity of thought, it will be well to restate the pertinent facts to be considered in determining whether the California doctrine of respondeat superior renders the government liable herein. The evidence discloses that on the day of the collision, March 3, 1949, Seabourn had a day off. He and two other soldier friends (Schmidt and Vincent), all of whom had passes and were off duty, left the base at about 8:00 A.M. The testimony of Richard C. Schmidt reads as follows:

"We were together all day. We left camp, and we went out drinking. It was about eight o'clock in the morning when we left, and we went to a tavern about a mile from Harmon Field. We stayed there most of the morning. Later that afternoon we went into Agana and other nearby places to drink and came back at night about 6:30 or 7:00 o'clock and got dressed and changed. That is when Seabourn got the truck. Seabourn secured a so-called "trip ticket" for the truck mentioned by Schmidt from Sergeant Stiles, a member of Seabourn's company. The ticket was made out about 8:00 A. M. that morning to a driver named Cabera, a soldier who worked with Seabourn, and it discloses that the vehicle had been requested by a Lt. W. R. Werb, and use of the vehicle was therein authorized for "Official business". Neither Seabourn's nor Stiles' name appears on the ticket nor was Seabourn's use of the vehicle in any way indicated thereon. We left there about eight o'clock and went first to the NCO's Club at the 20th Air Force. We stayed there drinking until 8:30 or nine o'clock in the evening. After that we went in the truck to Agana. There Vincent and myself got off the truck about eleven o'clock and that is the last I know of Seabourn's whereabouts until the next morning."

That same night, a little after the time he dropped his companions off Seabourn negligently crashed his vehicle into the side of plaintiff's car, causing the physical injuries upon which this action is based. Plaintiff asserts that Seabourn was acting within the scope of his employment because he was seeking entertainment; that entertainment is essential to a soldier's morale; and that proper morale is necessary to the maintenance of efficiency in the Armed Forces. The only question now before the court is whether the facts of this case, when considered under applicable California law, will support plaintiff's contention that Seabourn was acting within the scope of his employment at the time of the collision.

Liability on the part of the United States, under the state law, cannot be found, being predicated as it is upon the fact of Seabourn's employment, if Seabourn was pursuing his own ends at the time of the collision. This is so, even if the injury complained of could not have been committed without the facilities afforded to Seabourn by his relationship to the army. Stephenson v. Southern Pacific Co., 93 Cal. 558, 29 P. 234, 15 L.R.A. 475; Brown v. Chevrolet Motor Co., 39 Cal.App. 738, 179 P. 697. Whether or not the employer is responsible for the act of an employee which injures a third party depends, therefore, upon whether the employee was engaged at the time of injury in the transaction of his employer's business or whether he was engaged in an act which was done for his own personal convenience or accommodation and related to an end or purpose exclusively and individually his own. In other words, if an employee uses his employer's vehicle, not in furtherance of his employer's business, but for his own individual use, he is merely a borrower and the relationship of employer and employee not existing during the course of such use, the employer is not liable for his acts. Kish v. California State Automobile Ass'n, 190 Cal. 246, 212 P. 27; Duff v. Schaefer Ambulance Service, 132 Cal.App.2d 655, 283 P.2d 91; Lee v. Nathan, 67 Cal.App. 111, 226 P. 970; Slater v. Friedman, 62 Cal.App. 668, 672, 217 P. 795; Gousse v. Lowe, 41 Cal.App. 715, 183 P. 295. Reduced to its simplest terms, the crux of the problem is whether Seabourn was acting on behalf of his master at the time of the collision.

Viewing the factual situation in this case, it would be stretching the standards set out by the California law beyond logical legal limits to hold that when an employee on his day off, as herein, goes from bar to bar imbibing beer and wines, without any evidence of furthering his employer's business enterprise, that he was prosecuting or occupying himself with his employer's activities, merely because he was driving his principal's vehicle. This conclusion is amply supported by the California cases dealing with the use of an employer's vehicle by an employee.

For example, in the case of Kish v. California State Automobile Ass'n, supra, the employer, an automobile association, hired two men to install road signs. They had no fixed place or hours of employment and were allowed their meals as part of their expense account. The employer permitted the employees to use the same truck employed on the job in going to and from their meals. The court held that the employees were not engaged at the time of collision between the truck and another vehicle, in the performance of an act either directly or indirectly connected with the business of their employer or incidental thereto, where the collision occurred after they had finished the job of putting up signs for the day and after they had gone home and were on the way downtown for supper. The court stated in its opinion 196 Cal. 246, 212 P. 29:

"We cannot assent to the reasoning of plaintiff that because it was necessary for employees to eat and sleep in order to perform the labor for which they are employed, that these acts are incidental to their employment." Further, in the opinion, the court stated: "If, for instance, the employees had decided to defer dinner until after the theater, could it be said that during the interim they were engaged in their employer's business? Or if the employees had concluded that they would go to an adjoining town, twenty or thirty miles away, to get a meal, surely it could not be said that the trip was within the scope of their employment."

The applicability of the above decision is readily apparent; the employees had gone home, and the employer was no longer responsible for their activities after that time. In the instant case, Seabourn was on his day off, and as the evidence shows, was completely free to exercise his own judgment as to what recreation he would partake of during his time off from his duties. Seabourn might have had two days off, or a week off, and yet if plaintiff's theory in this case were accepted by this court, any self-selected act of "recreation" by Seabourn during such protracted period would nevertheless spell out liability on the part of the government.

In the case of Lee v. Nathan, supra 69 Cal.App. 111, 226 P. 971, appears the following language in accord with the aforesaid principle:

"When Apperson reached the garage with the car, there then remained nothing further for him to do in the master's business. He was thereafter his own master and was free to go home or elsewhere according to his own peculiar pleasure or inclination, and, if he chose to go home, he was free to go by whatever means he elected. His use of his employer's automobile in going home did not spring from any duty that he owed to his employer. His employer could not be benefited directly or incidentally thereby."

The holding in the case of Slater v. Friedman, supra, also recognizes this principle. Plaintiff brought an action for damages for personal injuries sustained while plaintiff was riding as passenger in a taxicab. The evidence showed that the driver of the taxi was authorized to work from 10:00 o'clock in the morning until 10:00 o'clock at night. The accident occurred at 10:45 P.M. The court held that since the evidence showed that the driver was at liberty from his service and pursuing his own ends exclusively, defendant owner of the taxicab could not be held responsible even though he afforded the means without which the accident might not have occurred.

The court has considered the many California cases cited by plaintiff in support of...