Williams v. United States, 15338.

• Decision Date: 26 September 1957
• Docket Number: No. 15338.,15338.
• Citation: 248 F.2d 492
• Parties: Althea G. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

248 F.2d 492 (1957)

Althea G. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 15338.

United States Court of Appeals Ninth Circuit.

September 26, 1957.

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

George C. Doub, Asst. Atty. Gen., Morton Hollander, Paul A. Sweeney, Attorneys, Department of Justice, Washington, D. C., Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for appellee.

Before STEPHENS, Chief Judge, and BONE and CHAMBERS, Circuit Judges.

BONE, Circuit Judge.

The instant appeal brings this Tort Claims Act suit here for the second time. See decision of this Court in Williams v. United States, 9 Cir., 215 F.2d 800. On certiorari to the Supreme Court, that Court vacated the judgment of this Court and in a brief order (350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761) remanded the case "for consideration" in the light of the controlling California doctrine of respondeat superior. Upon this remand the case was further "considered" by the District Court on the original trial record upon which that court based its first decision reported in 105 F.Supp. 208. The District Court rendered a second opinion and decision which is reported in 141 F.Supp. 851. The present appeal is from the judgment entered on this second decision.

The Basic Facts

From the record certain facts appear to be clearly established. Appellant, an employee of a private construction firm on the Island of Guam, sustained personal injuries when a parked car in which she was sitting was struck by a military vehicle driven by Corporal Seabourn. The accident occurred near a "breakwater" parking spot in Agana, Guam at or about 10:30 p. m. on March 3, 1949. Seabourn had obtained an official pass to leave the Guam army base where he was stationed, this pass covering (so far as all of the evidence reveals) the entire day and night of March 3, 1949. During the afternoon of that day and while authorized to be away from his army post, Seabourn in the company of two other soldiers (Schmidt and Vincent) engaged in drinking intoxicating beverages.

The three men returned to their army base "unit" about 7 p. m. on that day and while there, Sergeant Stiles, a member of Seabourn's company, handed Seabourn a so-called "trip ticket" for a ¾ ton vehicle known as a "weapons carrier." This ticket had been made out about 8 a. m. of that morning to a driver named Cabera, a soldier who also worked with Seabourn. The "ticket" indicates that on the day in question the vehicle had been requested by a Lt. W. R. Werb, and the use of the vehicle was therein authorized for "Official Business." Listed on the ticket are the various points to which the weapons carrier was driven that day. Neither Seabourn's nor Stiles' name appears on the ticket, nor was Seabourn's use of the vehicle in any way indicated thereon.

In the army company "unit" or "section" in which Seabourn was serving, a loose practice had prevailed for several months under which servicemen in this unit were able to secure possession of army vehicles to drive for their own pleasure, this being accomplished by these men by informally "passing around" among themselves "trip tickets" which might have been issued to another driver for official army use, in this case the vehicle involved having been assigned to a man named Cabera for the use of Lieutenant Werb on the day of the accident.

Having secured the vehicle that evening by such informal means, Seabourn (in company with Schmidt and Vincent) drove the army vehicle to the Enlisted Men's Club on the Island where they drank beer and champagne after which they decided to "go for a ride." Thereafter, and prior to the accident here involved, and at a rather late hour, Seabourn let his companions out of the army vehicle and "took off" alone. It was during this night drive that the accident occurred at a time when, according to Seabourn's sworn statement, he was driving the vehicle "only for recreation." His two companions made official statements under oath for official army records, these statements setting forth many of the above mentioned facts. In the course of this litigation, the recitals in these records, and their later depositions, contained the averment that at the time Seabourn left them to make his night drive he was "definitely drunk" and "very drunk." Seabourn swore that he remembered nothing that occurred after he left Schmidt and Vincent except that the next morning he awoke alongside the road when the sun was shining.

None of these three men claimed that they were required to execute military orders of any kind, or to perform military duties of any kind while away from their post on March 3, 1949, nor do they attempt to claim that army regulations then in force sanctioned the informal use of army vehicles for the purpose, and under the conditions of use shown by Seabourn's activities on that day and night.

Furthermore, there is absolutely nothing in the record to show that Seabourn's superior military officers had personal knowledge of, or control or supervision over, the use of the vehicle while it was in Seabourn's possession on all of the day and night of March 3, 1949, nor any control over Seabourn's activities after he got the trip ticket from Stiles on that evening and thus used the Cabera ticket which had been issued that morning for the use of Lt. Werb. Nor had any military order been issued by a superior officer directing, authorizing or permitting Seabourn to drive or use the vehicle during that day or night for any purpose, military or otherwise (including "recreation"), or for the discharge of any kind of a military order or duty.

Based upon the general facts we outline above, appellant's complaint against the United States under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., asserted, inter alia, that Seabourn's negligent operation of the vehicle during his night drive was in the line of his duty for the Government. The Government's answer, inter alia, denied this assertion.

Preliminarily, it should be made plain that, relying on application of the doctrine of respondeat superior as applied in California (from which Guam law on the subject derives), appellant has at all time strenuously contended (as her basic premise), that "Seabourn was not acting outside the scope of his employment" when he crashed his army vehicle into the parked car in which appellant was sitting; that at the time of the crash "the soldier was acting within the course and scope of (his) employment by seeking entertainment that night"; that "entertainment" (including driving merely for pleasure) on Guam is essential to a soldier's morale; that morale "is necessary to the maintenance of efficiency in the armed forces there," hence Seabourn's night drive came within the scope of an "official duty" to himself and the army.

Before reaching appellant's theory of government liability as amplified in her briefs, we emphasize that nothing presented in the record suggests or supports a conclusion of fact or law that on his night drive Seabourn was then in any way combining this venture with any sort of "official business" of the army, unless the circumstances (a so-called "common practice" in his army company unit) under which he secured the use of the army vehicle for recreation can be said to make this night drive an activity which (as a matter of law) must be held to represent a combining of his drive for personal recreation with the discharge of some "official business" for the army. As we have noted above, Seabourn frankly avowed under oath that he was then "driving for recreation"; nowhere in either his affidavit or deposition does he (or any other witness in the case) assert that a superior officer had directed (or given permission to) Seabourn to use the army vehicle for any purpose on March 3, 1949, or that he drove it that night to execute any military orders in connection with his army duties. In this very material and highly significant respect the facts of this case abruptly part company with the facts of our later noted Murphey case Murphey v. U. S., 9 Cir., 179 F.2d 743, where the driver of the army vehicle was acting under specific direction of a superior officer when he made his night drive. Yet appellant strenuously argues that this case is on all fours with the facts of the Murphey case; that its facts make it fit the facts of the Murphey case "to a T."

We outlined above the basic facts of this case in order to relate them to the specific arguments here advanced by appellant in her briefs since they serve to clearly delineate the legal basis of her claim of government liability under the Tort Claims Act, that is to say, a claim resting squarely on the "recreation-morale" theory as buttressed by the claimed "practice" and/or "policy" in vogue in Seabourn's company unit. These arguments are set out in considerable detail just below.

Appellant's Position

Appellant urges that: Vehicles were necessary for recreational purposes on Guam due to "distances" on the Island; all officers and enlisted men in Seabourn's unit followed the practice of circulating trip tickets; this unit practice had prevailed for at least fifteen months prior to the accident; this unit practice was a long-established "army custom" and a standard operating procedure; Seabourn was "engaged in a series of authorized acts, namely, driving the vehicle for recreation to and from recreational facilities provided by the Government at the time of the accident"; "under the peculiar circumstances of Seabourn's overseas service, his night drive was "for a governmental purpose" to wit, "the improvement of (his) morale"; the "improvement of morale," as such, is announced in Murphey v. United States, supra, 179 F.2d 743 which was approved by the Supreme Court; Seabourn was authorized to use the vehicle for recreation because of the "custom, practice and standard operating procedure" in vogue in Seabourn's unit; under the "practice" of Seabourn's unit, the...