Petition for a Writ of Certiorari — United States v. McConville

ee ee Le, eee Se ae ‘ on . Se tle 2 ON and etn ef aan Al te Ola tea a

INDEX

Page

Opinions below 1

Jurisdiction 2

Question presented 2

Statute involved 2

Statement .. 3

Specification of errors to be urged 7

Reasons for granting the writ 8

Conclusion ...... 16

CITATIONS

Cases:

Balinovie v. Evening Star Newspaper Co., 113 F. 2d 505,

certiorari denied, 311 U.S. = Crone 10

Berryhill v. Ellett, 64 F. 2d 2: ; 14

Campbell v. Warner, 234 N cy. "a8, reversing 200 App.

Div. 888 13

Cannon v. Goodyear Tire & Rubber Co. 60 Utah 346 13,14

Chaika v. Vandenberg, 252 N.Y. 101.. : 11

Clemens v. United States, 88 F. Supp. 971. . 9

Cohen v. City of New York, 215 App. Div. 382, affirmed,

243 N.Y. 561 13

Cropper v. United States, 81 F. ‘Supp. ‘81 ; 11

Del Vecchio v. Bowers, 296 U.S. 280 Saree 13

Department of Water & Power v. Anderson, 95 F. 2d

577, certiorari denied, 305 U.S. 607. 13

Federal Crop Insurance Corp, v. Merrill, 332 U.S. 380 14

Feres v. United States, 340 U.S. 135... . 9

Fluegel v. Coudert, 244 N.Y. 393... . 14

Gosney v. Metropolitan Life Ins, Co., 114 F. 2d 649 14

Graves vy. Utica Candy Co., 209 App. Div. 193 13

Greenwood v. United States, 97 F. Supp. 996 9

Guy v. Donald, 203 U.S. 399 ; 16

Hanchett v. Wiselev, 107 Cal. App. 230 13

Henrietta v. Evans, 10 Cal. 2d 526 11

Hubsch vy. United States, 174 F. 2d 7, remanded for

settlement, 338 U.S. 440... 9,11

Irwin v. Klein, 271 N.Y. 477 10

King v. United States, 178 F. 2d 330, certiorari denied,

339 U.S. 964 14,15

Long v. United States, 78 F. Supp. 35 9,11

(1)

lI

Cases—Continued

Page

Murphey v. United States, 179 F.2d 743, reversing 79

F. Supp. 925 9

Pariso v. Towse, 45 F. 2d 962 . 13

Peabody v. Marlboro Implement C., 72 F. 2d 81, certi-

orari denied, 293 U.S. 601 14

Pennsylvania Indemnity Fire Corp... —_——- 117 F. 2d

774 eg 14

Potts v. Pardee, 220 N.Y. 431 ee - 12,16

Reilly v. Connable, 214 N.Y. 586 seh hao: ee

Ricketts v. Pennsylvania R. Co., 152 F.2d 757 | «ss. 14

Rose v. Balfe, 223 N.Y. 481 a eye 13

St. Andrassy v. Mooney, 262 N.Y. 68 ee ee 13

Sanchez vy. United States, 177 F. 2d452 9

Simon v. City Cab Co., 78 F. 2d 06, certiorari denied,

296 U.S. 640 ; 12

Standard Oil Co. v. Anderson, 212 '.S. 215 12

Standard Surety & Cas. Co. vy. Fantsville Nat. Bank,

158 F. 2d 422 . ‘st 14

Stekovich v. United States, 102 F. ‘upp. 9 . 9

United States v. Campbell, 172 F. a 500 | 13

United States v. Eleazer, 177 F. 2d)14, certiorari denied,

339 U.S. 903 4 9

United States v. Hull, 195 F. 2d 64. - i

United States v. Johnson, 181 F. 20577 9

United States v. Ross, 92 U.S. 281 13

United States v. Sharpe, 189 F. 24239 9

United States v. Standard Oil Co..332 U.S. 301 9, 16

Van Blaricom v. Bodgoon, 250 F211 ae 16

Walsh v. Rosenberg, 81 F. 2d 59, certiorari denied,

298 U.S. 663 12

Watson v. United States, 0 F. Sup. 900 12

Whiteside v. United States, 93 U.S247 14

Williams v. United States, Py F. Spp. 208 9,11

Young v. Masci, 289 U.S 15

Statutes:

Act of June 25, 1948, 62 Stat. 683362 »

Federal Tort Claims Act, 60 Stat _— 28 U.S.C. 921,

et seq. ; ; - a 2

59 Stat. 131 11

5 U.S.C. 78(e) 1l

Title 28 U.S.C.:

Section 1291

Section 1346

Section 1346(b)

Section 1402

Section 1504

Section 2110

to

eee ee

tt

Statutes—Continued

Page

Section 2401 »

Section 2402 2

Seetion 2411 =

Section 2412 2

Section 2671 ri

Sections 2671-2680 2

D.C. Code (1951 ed.) § 40-403 10

N.Y. Vehicle & Traftie Law, § 59 (McKinney) 6,10

Miscellaneous :

ALLL. Restatement of Agency:

Section 216, comment a 14

Section 219 9

Seetion 255 a

Section 238, comment a 14

Section 238, comment b 10

Section 265 14

A.L.1. Restatement of Torts:

Seetion 221(b) 14

Annual Motor Vehiele Report for the Fiscal Year ended

June 30, 1951, General Services Administration, Fed-

eral Supply Service, February, 1952 10

Army Regulation No. 700-105, Par. 26e (30) June

1948) 11

Annual Report of the Direetor of the Administrative

Oftice of the United States Courts, 1951, p. 130 10

Fegan, Presumption Versus Proof in Automobile High-

way Accidents, 22 Geo, Ld. 750 (May 1934) 12

Grad, Recent Developments in Automobile Accident Com-

pensation, 50 Colum L. Rev. 300, 305 (Mareh 1950) 16

James, Accident Liability: Some Wartime Developments,

+9 Yale Ld. 365, 399 (February 146) 16

Respondeat: Superior in’ Automobile Negligence An

Anomaly in the Federal Tort Claims Act, 61 Yale La.

435 (Mareh 1952):

Page 442 (n. 25) 10

Page 443 15

Page 444 15

Smith, Frolic and Detour, 23° Colum. Law Rev. 444

(1923) :

Page 461 12

Page 463 12

9 Wigmore, Evidence (3rd Ed.) :

Section 2510a 12

eT aoe ene nae ‘ ee ee eee ee

.

Guthe Supreme Gourt of the Guited States

OctToBER TERM, 1952

No. 369

THE UNITED STATES, PETITIONER

v.

GuaDys E. McConvi__te, ADMINISTRATRIX OF THF

Goons, Erc. oF FRANK J. MCCONVILLE, DECEASED,

FOR AND IN BEHALF OF HERSELF as WiboW AND

JAMES McConviLLE, NEXxT-OF-K1IN AND HEIR AT

LAW OF THE DECEDENT, AND GLAbys E. McCon-

VILLE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

The Acting Solicitor General, on behalf of the

United States, prays that a writ of certiorari issue

to review the judgment of the Court of Appeals for

the Second Circuit, entered in the above cause on

July 2, 1952.

OPINIONS BELOW

The opinion of the district court (R. 139-148)

is not officially reported. The opinion of the court

of appeals (R. 163-168) is reported at 197 F. 2d

680.

(1)

1 a Se EP ROA oC BARE ROTT NA OA TE

JURISDICTION

The judgment of the court of appeals was en-

tered on July 2, 1952 (R. 168). The jurisdiction of

this Court is invoked under 28 U. 8S. C. 1254 (1).

4

QUESTION PRESENTED

Whether the Government is liable under the Tort

Claims Act for injuries caused by an employee

driving a government vehicle solely for his own

private purposes, having obtained permission of

his superiors to use the vehicle through fraud.

STATUTE INVOLVED

Sections 1346(b) and 2671 of Title 28 U.S. C.

(reenacting similar provisions of the Federal Tort

Claims Act)’ provide in pertinent part:

Section 1346. United States as defendant.

Ddheoen eee IR On Oe ES ey sire es eStats

REE B RTT Tas? OTE alae ee aw Dina pte RNR SS

* * * * *

(b) Subject to the provisions of chapter 171

g of this title, the district courts * * * shall

; have exclusive jurisdiction of civil actions on

‘s claims against the United States, for money

§ damages, accruing on and after January 1,

1945, for injury or loss of progerty, or per-

sonal injury or death _caused_by the negligent

or wrongful act or omission of any employee

of the Government while acting within the

scope of his office or employ . under cir-

cumstances where the United States, if a

1The Federal Tort Claims Act (60 Stat. 842, 28 U.S. C.

921 et seq.) was repealed when its provisions were revised

and reenacted into law as 28 U. 8. C. 1291, 1346, 1402, 1504,

2110, 2401, 2402, 2411, 2412, 2671-2680 by the Act of June

25, 1948, effective September 1, 1948 (62 Stat. 683, 862).

HEEB e

ise meaiets Saaceics tie eR aa cao 2

- AP BE AAP BURN PARI ARNE TAN ONLI EE ha Ml Oe RIE IE

3

private person, would be liable to the claimant

in accordance with the law of the place where

the act or omission occurred.

* * * * -

Section 2671. Definitions.

As used in this chapter and sections 1346(b)

and 2401(b) of this title, the term—

* * * * *

‘*Emplovee of the government”’ includes offi-

cers or employees of any federal agency, mem-

bers of the military or naval forces of the

United States, and persons acting on behalf of

a federal agency in an official capacity, tem-

porarily or permanently in the service of the

United States, whether with or without com-

pensation.

** Acting within the scope of his office or em-

ployment’*’, in the case of a member of the mili-

tary or naval forces of the United States,

means acting in line of duty.

STATEMENT

Respondent, suing the United States under the

Federal Tort Claims Act, was injured and her hus-

band was killed in a collision with a United States

Air Force *4-ton truck at 2:00 a. m. on October

12, 1948, at the intersection of Sunrise Highway

and Bayview Avenue in Freeport, Long Island.

At the time of the collision, Sgt. John R. Ander-

son, the Government driver, was returning from a

personal frolic at various bars where he had been

drinking beer with companions (R. 66-68, 166).

An autopsy of respondent's husband disclosed that

Biietrncn a RENE Se a a4

;

E:

;

4

bs x

;

2

he had been driving while intoxicated (R. 77, 143).

Respondent, his only passenger, suing as adminis-

tratrix of his estate and in her own behalf, alleged

in her complaint that the collision was caused by

Anderson’s negligence while acting within the

scope of his employment as a soldier in the United

States Army (R. 3). The answer denied these al-

legations, alleged contributory negligence, and as-

serted affirmatively that Anderson was outside the

scope of employment because he had procured and

operated the Government vehicle ‘‘without proper

and legal authority and by fraud and misrepresen-

tation’? (R.8). The Government’s position at trial

was that Anderson had used a subterfuge to get the

truck for a personal junket; hence, that his entire

trip—not merely the deviation to the bars—was

personal, not on Government business, and not

within the scope of his employment (R. 9, 93, 96).

Anderson, called as respondent’s witness on the

issue of scope of employment, testified that he was

stationed at the Air Force Base at Mitchel Field.

Long Island, where he was in charge of the shoe

repair shop (R. 57); that on the evening of the

accident he was also in charge of the quartermaster

warehouse with the duty of issuing and receiving

supplies (R. 60); that he had spent part of the

evening drinking beer at the WAC Recreation Hall

with other enlisted men, including Sgt. Robert F.

Goodwin, Cpl. Frank W. Brenner and Cpl. C. 8.

Warndel (R. 91); that shortly after eleven, after

the Recreation Hall stopped selling beer and

closed, he and his companions went to a latrine in

a barrack building where they drank some more

beer (R. 93, 98, 100); that he later went to the

Quartermaster Building and that there a lieutenant

whom he could not identify came in and requested

a bed and mattress (R. 60, 61, 90, 98-99), which

were stored at the Santini Warehouse, a quarter-

master depot located about two miles away, just

off Mitchel Field (R. 61-62, 101). He said he told

the officer he would be back within 15 to 30 minutes

(R. 62, 67,90). Since he needed transportation to

get to Santini, Anderson telephoned the Officer of

the Day, told him the circumstances, and received

permission to have the motor pool issue him a truck

for this purpose (R. 60-64). Having obtained the

truck, Anderson testified that he returned to the

latrine and picked up Goodwin, Brenner and

Warndel, and together the four drove off (IR. 64,

65, 91-92, 102.)

The route to Santini required Anderson to drive

one mile south and then one mile east on the roads

bordering the western and southern sides of the

Field (R. 101, 106-108). Instead, he drove south

for a short distance, then turned southwest to a

bar where he and his companions had some beer.

Thereafter, continuing in a southwesterly direc-

tion, they drove to the town of Oceanside, seven

miles from the Field and from the Santini Ware- F

house, where they visited two other bars (R. 66, %

67, 109-110).° Afterward, Anderson testified, he 5

5)

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2? On the basis of maps submitted on argument and in evi-

dence, the appellate court took judicial notice that Ocean-

side is seven miles from the Field and Santini, not five miles

as stated in the district court opinion (R. 142).

6

left his companions and started alone in the direc-

tion of the warehouse (R. 68, 109-110). The acci-

dent occurred at 2:00 a. m. when he had completed

two miles of the seven-mile return trip (R. 111,

142).

At the trial, the Government offered to prove

through the testimony of Brenner and Goodwin

(R. 129-132), two of Anderson’s drinking com-

panions, that Anderson had obtained the truck

through deception and that the story about an offi-

cer’s request for a bed and mattress was concocted

by Anderson as part of a scheme to enable him to

drive off the base with his companions so that they

could continue their beer-drinking elsewhere after

the Recreation Hall closed (R. 9, 93, 96). The dis-

trict judge excluded the testimony (R. 130, 132).

He found that the accident had been caused by An-

derson’s negligence and that the decedent was not

contributorily negligent. Relying upon New

York’s ‘‘permissive use’? statute (R. 10, 144),

which imposes liability upon the owner of a vehicle

who permits another to drive it (without regard

to scope of employment), he held that Anderson

was operating the truck with the permission of the

Government and within the scope of his employ-

ment (R. 147). Accordingly, he held that the

Cnited States was liable, awarding damages in the

total amount of $60,800 and costs.

On appeal, the Court of Appeals for the Second

Cireuit modified the judgment by striking an item

3N. Y. Vehicle and Traffic Law, § 59 (McKinney).

—)

—_ Pry “ we Pe ao oe sek 6D he APN eee a

7

of costs, but affirmed on the merits. The court held

that since Anderson’s trip was authorized for a

claimed proper purpose, ‘* whether or not the claim

was fraudulently made’’, he was ‘‘engaged in per-

missible activity for the army’’ when he began his

trip (R. 166). The court apparently assumed that

the junket to Oceanside was a temporary abandon-

ment of his scope of employment, but held that it

could not be said that as a matter of law Anderson

had not reentered the scope of employment when

he completed two miles of the seven-mile trip re-

turning from his frolic; that, consequently, there

was no need to consider the applicability of New

York’s permissive use statute. On the primary

issue presented by this petition, the court held that

the exclusion of the evidence relating to Anderson’s

having obtained the truck by fraudulent repre-

sentations was not prejudicial because such evi-

dence ‘*‘could have no bearing on the scope of

Anderson's employment under the Tort Claims

Act. * * * [P]roper authorization for a trip

whose claimed purpose was permitted by regula-

tions was all that needed to be established’? (R.

167).

SPECIFIC .TION OF ERRORS TO BE URGED

The Court of Appeals erred:

1. In holding that the Government was liable

under the Tort Claims Act even if the employee

had fraudulently obtained the vehicle for his pri-

rate purposes, having misrepresented to his su-

periors that there was government business requir-

ing his use of the vehicle.

et. LO es seam ile igs

Pe niia Sire sano. oy

EO Si 1 EEE OO LE AEE AO

8

2. In holding that, after an admitted deviation,

the employee returned to the scope of his employ-

ment when he had travelled, part of the way back

to his claimed destination.

3. In affirming the judgment of the District

Court.

REASONS FOR GRANTING THE WRIT

The court below has held it to be immaterial

whether the employee in this case obtained the gov-

ernment vehicle by fraud—by fabricating a need

for official business to elicit permission of his su-

periors to use the vehicle when his actual purpose

was a purely personal, wholly unauthorized, pleas-

ure expedition. It is sufficient, the court has held,

if the soldier had ** proper authorization for a trip

whose claimed purpose was permitted by regula-

tions * * * (RR. 167; emphasis added), so that evi-

dence showing that the formally ** proper author-

ization’? was secured by fraud was correctly ex-

cluded. This holding, we submit, reads out of the

Tort Claims Act the basie provision that the Gov-

ernment is liable only where the employee whose

conduct is complained of was *‘acting within the

scope of his office or employment * * *.’? 28

U.S. C. 1346(b), supra, p. 2. It imposes liability

upon the United States for the private, even un-

lawful, conduct of an employee on the sole ground

that the emplovee was using a government-owned

instrument with the permission of his superiors,

despite the fact that this permission was wrong-

fully obtained.

The decision thus lays down a general rule of

.

9

federal law construing the Tort Claims Act * that

is in conflict (1) with the principles applied by

other courts of appeals, which have held the Act

to limit liability to cases where the employee was

engaged in the Government's business as distin-

guished from his personal affairs,’ and (2) with

the authorities at common law, which likewise re-

quire that the employee’s activity be connected

with his employer's work. A. L. 1, Restatement of

Ageney, §§ 219, 235. A decision by this Court as

to the correctness of this rule is of great importance

to the Government. The unfortunately recurring

problem presented by servicemen who avail them-

selves of government vehicles for private pleasure

trips and escapades is already reflected in a num-

her of reported decisions.® The existence of almost

*“We look to the federal law and decisions to determine

whether or not the person who inflicted the injury was an

‘employee of the Government * * * acting within the scope

of his offiee or employment’.” United States v. Sharpe, 189 F.

2d 239, 241 1C. A. 4); Williams v. United States, 105 F. Supp.

208 (N. D. Cali: ef. Feres vo Cuted States, 340 U.S. 135,

142-144; United States v. Standard Oil Co., 332 U.S. 301, 305-

307, 311. The district court erreneously applied New York

law on the seope of employment (2. 147).

*U'nited States v. Eleazer, 177 F. 2d 914 (C. A. 4), cer-

tiorari denied, 339 U. 8. 903; United States v. Sharpe, supra,

note 4; Hubsch v. United States, 174 F. 2d 7,9 (C. A. 5),

remanded for settlement, 338 U. s. 440; cf. Sanchez v. United

States, 177 F. 2d 452 «C. A. 10). see United States v. Hull,

195 F. 2d 64, 67 (C. A. 1); Willams v. United States supra,

note 4.

® See, e. g.. Hubsch v. United States, supra, note 5; Wil-

liams v. United States, supra, note 4; Long v. United States,

78 F. Supp. 35 (8. D. Cal.); Greenwood v. United States,

97 F. Supp. 996 (W. D. Ky.); Clemens v. United States, 88

F. Supp. 971 (D. Minn.); Stekov'ch v. United States, 102 F.

Supp. 925 «M.D. Pai; ef. Murpien v. United States, 179 F.

2d 743 (C. A. 9), reversing 79 F. Supp. 925 (N. D. Cal.);

United States v. Johnson, 181 F. 24 577 (C. A. 9).

ee I ae ORI OPTI MONTE AL DH

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IPS $50"

Baoan Leber ta®

NEEL ER PEEP TIA OR oT) BLU OSH CPE Fae

10

100,000 military vehicles and as many civilian fed-

eral agency vehicles operating within the United

States’ assures a considerable burden of liability

if the ‘‘scope of employment”’ is held to be auto-

matically and conclusively established once formal

approval is shown.

The court below did not elaborate its reasons for

approving the exclusion of evidence as to the real

purpose for the trip. However, the apparent bases

and necessary implications of this ruling serve to

demonstrate its error.

1. Under the ‘‘permissive use’’ statutes of New

York (Vehicle and Traffic Law, § 59, quoted at R.

144) and some other jurisdictions,* an owner is lia-

ble for the negligence of a person he permits to use

his vehicle, regardless of whether the use is for the

owner’s business or benefit.” Pointing out that the

district court had held this statute applicable to

the United States, the court below declared that it

had no occasion to consider the correctness of this

holding (R. 167, n. 2). Despite this declaration,

7See Annual Motor Vehicle Report for the Fiscal Year

ended June 30, 1951, General Services Administration, Federal

Supply Service, February, 1952, p. viii; 61 Yale L. J. 435, 442,

n. 25. For the fiscal year 1951, 331 of the 736 cases filed

under the Tort Claims Act were for personal injuries arising

out of motor vehicle accidents. Annual Report of the Director

of the Administrative Office of the United States Courts, 1951,

p. 130.

SE. g., D. C. Code (1951 ed.) § 40-403.

®In the absence of statute, an employer is not liable for a

permissive use not in furtherance of his business. Balinovie v.

Evening Star Newspaper Co., 113 F. 2d 505 (C. A. D. C.), cer-

tiorari denied, 311 U. 8.675; Reilly v. Connable, 214 \. Y. 586:

Irwin v. Klein, 271 N. Y. 477, 483; A. L. I., Restatement of

Agency, § 238, Comment b.

a ae OE ONS LORE TUS OF PODER OPTED He FS

11

the decision below amounts to an application—and,

indeed, an extension—of the permissive use doe-

trine under the Tort. Claims Act. For in holding

it to be irrelevant that the driver in this case had

fabricated an official mission and was actually driv-

ing ona frolic of his own, the court has made mere

**permission’’ of a superior to use the vehicle sufti-

cient to establish the Government’s liability. And

even under the permissive use statutes, the extent

and nature of consent is material and open to in-

vestigation '—a factor which would make it highly

relevant that the superiors of the soldier had nei-

ther the power nor the intention to authorize a

drinking expedition."

What is primarily significant here is the fact

that the permissive use doctrine, whether or not

it could extend to non-government cases of consent

fraudulently obtained, has no place under the Tort

Claims Act, and has been repeatedly rejected in

decisions under the Act." These decisions—observ-

ing the Act’s specifie limitation of the Govern-

ment’s liability to cases where injuries are caused

by an employee acting within the scope of his em-

” Chaika v. Vandenberg, 252 N. Y. 101; Henrietta v. Evans

10 Cal. 2d 526.

™ As federal law prohibits use of a government vehicle

except for government business (5 U.S.C. 78(e)(2); 59 Stat.

131; Army Regulations No. 700-105, par. 26c, 30 June 1948),

proper consent to use by service personnel could only be based

on a judgment that the purpose was substantially govern-

mental.

12 Hubsch v. United States, supra, note 5; Williams v. United

States, supra, note 4; Long v. United States, supra, note 6;

Cropper v. United States, 81 F. Supp. 81 (N. D. Fla.); see

United States v. Hull, 165 F. 2d 64, 67 (C. A. 1).

SSDNA taaade aa rai ee

MCE

12

ployment, and recognizing that this limitation

requires adherence to settleq principles of re-

spondeat superior—are fung amentally irrecon-

cilable with the decision belo... ppey illustrate

what the plain statutory te... would seem to

make amply clear—that Coporess has deemed

only acts within the scope of: employment to be

fairly chargeable to the cos; o¢ operating the

military and civilian establis}, nents." In hold-

ing that a proper ‘‘claimed Purpose” of the em-

ployee meets this test, prechuding injuiry into

the actual purpose and nature, of the activity, the

decision below drastically exte},qs the limits of the

liability to which Congress ¢0},conted.

The Act as written imposes, yon plaintiffs the

burden of proving that the O} eration of the con-

veyance was within the scope of the driver’s em-

ployment. For reasons of CO venience it may be

fair as well as consistent with the statutory scheme

to require the Government, as the owner presum-

ably in possession of the facts, to negative the pre-

sumption that the vehicle was operated on its be-

half and within the scope of the employee’s employ-

ment.’ But a doctrine relieyjng plaintiffs from

13.Cf. Standard Oil Co. v. Anders.on, 212 U. S. 215. 221;

Reilly v. Connable, 214 N. Y. 586. 599- cee Smith. Frolic and

Detour, 23 Col. L. Rev. 444, 461, 463, (1993).

* Wigmore, Evidence (3d ed.) §2510a; Fegan, Presumption

versus Proof in Automobile Highway Accidents, 22 Geo. L. J.

750 (1934); Potts v. Pardee, 220 N. y. 43).

It is universally agreed that the inference that the car

was driven in the exercise of authority may be rebutted and

overcome. Watson v. United States 99 F. Supp. 900 (D.

Alaska) ; Simon v. City Cab Co., 78 F. 2d 506 (C. A. D. C.).

certiorari denied, 296 U. S. 640; Walsh y. Rosenberg, 81 F. 2d

13

proving, or preventing the Government from dis-

proving, that the conduct was within the scope of

employment, dispenses with proof of a material

fact’ and, in the guise of a mere ruling on evidence,

nullifies a policy implanted in the heart of the

Act.” The court below apparently recognized (R.

166-167) that, where an agent who has embarked

on the principal’s business deviates for purposes

of his own, the principal is not liable for tortious

conduct during the period of the deviation. It

should follow, a fortiori, that the employe in this

ease, if his whole trip was for a trumped-up official

purpose, was never on government business.”

2. To the extent that its decision is grounded in

the belief that formal, apparent authority to be on

the road conclusively established that the employee

was acting within the scope of his employment, the

court below misapplied and overextended rules

from the law of agency designed for situations

where third persons rely on appearances in dealing

559 (C. A. D. C.), certiorari denied, 298 U. 8. 663; Parico v.

Towse, 45 F. 2d 962 (C. A. 2); Department of Water & Power

v. Anderson, 95 F. 2d 577, 583 (C. A. 9), certiorari denied,

305 U. S 607; St. Andrassy v. Mooney, 262 N. Y. 368 (New

York permissive use statute); Rose v. Balfe, 223 N. Y. 481,

486; ef. Del Vecchio v. Bowers, 296 U. S. 280; see Fegan,

supra, at 770.

15 Cf. United States v. Ross, 92 U. 8. 281, 285.

16 See United States v. Campbell, 172 F. 2d 500, 503 (C. A.

5), certiorari denied, 337 U. 8. 957.

17 Cohen v. City of New York, 215 App. Div. 382, affirmed,

243 N. Y. 561; Graves v. Utica Candy Co., 209 App. Div.

193; Campbell v. Warner, 234 N. Y. 645, reversing 200 App.

Div. 888; Cf. Hanchett v. Wiseley, 107 Cal. App. 230; Cannon

v. Goodyear Tire & Rubber Co., 60 Utah 346.

EASE OLN EM ALL AOR SS sh iit ao She Soci tn sada

Oe a

ae

14

With the agent on a business basis."* Apart from

the fact that doctrines of estoppel and apparent

authority are inapplicable to government opera-

tions,” they cannot serve to preclude proof that

the employee was engaged in purely personal pur-

suits in the kind of tort situation this case presents.

For there is no basis for suggesting here, or in any

other collision case, that injured parties have

changed their position or submitted to injuries in

reliance upon the apparent authority of the driver.

See A. L. L., Restatement of Agency, § 216, Com-

ment a, § 238, Comment a, § 265.

3. The court below undertakes (R. 166) to dis-

tinguish King v. United States, 178 F. 2d 320, 322

(C. A. 5), certiorari denied, 339 U. 8. 964, which

rejected a claim under the Tort Claims Act for

damages caused by a crashing airplane, holding

that, since the airman involved had taken the air-

plane without the knowledge or consent of his su-

periors, he was not acting within the scope of his

employment. But the vehicle obtained by fraud

resembles in this respect the stolen vehicle? The

8 Cf. Ricketts v. Pennsylvania R. Co., 153 F. 2d 757 (C. A.

2); Standard Surety & Cas. Co. v. Plantsville Nat. Bank, 158 F.

2d 422, 424 (C. A. 2). The imposition of liability for acts

within an agent’s apparent authority is grounded on estop-

pel. Gosney v. Metropolitan Life Ins. Co., 114 F. 2d 649, 652

(C. A. 8); Berryhill v. Ellett, 64 F. 2d 253, 255 (C. A. 10).

Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380;

Whiteside v. United States, 93 U. S. 247.

20 Fluegel v. Coudert, 244 N. Y. 393; Cannon v. Goodyear

Tire & Rubber Co., 60 Utah 346; cf. Pennsylvania Indemnity

Fire Corp. v. Aldridge, 117 F. 2d 774 (C. A. D. C.); Peabody

v. Marlboro Implement Co., 72 F. 2d 81, 84 (C. A. D. C.), cer-

tiorari denied, 293 U. S. 601; A. L. I., Restatement of Torts,

§ 221(b).

15

decisive fact against liability in either case is that

the employee is ‘‘on a frolic of his own, and * * *

not in any manner serving the interests of the

United States.” King vy. United States, supra, at

322. Unless the formality of official ‘‘ permission,”’

regardless of the manner in which that permission

is obtained and misused, does duty as a substitute

for actual service in the Government’s behalf, the

decision below conflicts with King as it conflicts

with the other decisions we have cited (supra, p. 9,

n. 5) holding that an employee engaged in his own

pursuits is not acting within the scope of his em-

ployment for purposes of the Tort Claims Act.

4. The decision below, in its unprecedented ex-

pansion of the scope-of-employment concept,

judicially repairs what has frequently been re-

garded as one of the shortcomings of the respondeat

superior rule.” It substitutes a test of ‘initial

permission’’ that has been recommended as an

amendment to the Tort Claims Act to approxi-

mate the protection of modern automobile liability

insurance.” But it has been conceded by those

recommending this change that legislation is neces-

sary to achieve it and that, despite the agitation for

21Cf. Young v. Masci, 289 U. S. 253, 259.

*2 Respondeat Superior in Automobile Nealiaence—An An-

omaly in the Federal Tort Claims Act, 61 Yale L. J. 435, 442-

444 (March, 1952). “Under this ‘initial permission’ test,

once the Government checked out a vehicle to a driver, liabil-

ity for his negligence on unauthorized departures from official

business would automatically follow. In effect, the Govern-

ment would assume accident responsibility for the negligent

use of its vehicles in virtually any case short of conversion.”

Td. at 443.

Besccces en © Cee

3

*

'%

;

G

Fy

16

a broader owner liability, Congress selected the

traditional scope-of-employment test.” Policy

considerations favoring a rule which would ‘‘pro-

vide plaintiff with a financially responsible de-

fendant’’™* cannot force the line of development

which is for the legislature, but must bow to the

restrictions Congress has up to now attached to the

assumption of governmental liability. These re-

strictions have been ignored in this case, and there

is need for their sharp definition and reaffirmation

by this Court until such time as the Congress, on

due deliberation, may choose to ease them by dis-

carding or modifying the rules of respondeat

superior.”®

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this petition for a writ of certiorari

should be granted.

Rosert L. STERN,

Acting Solicitor General.

SEPTEMBER, 1952

*37d., at 442-444.

“" James, Acerdent Liability: Some Wartime Developments,

55 Yale L. J. 365, 399 (1946); cf. Guy v. Donald, 203 U. S.

399, 406.

3 Cf. United States v. Standard Oil Co., 332 U. S. 301. 315-

317; Potts v. Pardee, 220 N Y. 431, 433; Van Blaricom v.

Dodgson, 220 N. Y. 111, 116-117. “A full and complete

remedy * * * must come from appropriate legislative ac-

tion.” Grad, Recent Developments in Automobile Accident

Compensation, 50 Col. L. Rev. 300, 305 (1950). If there is

a real problem, judicial tinkering with the bases of liability

may obscure the need and delay legislative correction on a

comprehensive scale.

Wu. s GOVERNMENT PRINTING OFFICE 1I952 224862 aas

a OCT

'

i

‘

IN THE

Supreme Court of the United States on

Octoser TERM, 1952

No. 369

THE UNITED STATES,

Petitioner,

vz

GLADYS E. McCONVILLE, Administratrix of the Goods, etc.,

of FRANK J. McCONVILLE, Deceased, for and in behalf of

herself as Widow and JAMES McCONVILLE, Next-of-kin

and Heir at Law of the Decedent, and GLADYS E. Mc-

CONVILLE.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CopaL MINTz,

Georce A. GRABOW,

MEYER DvorKIN,

Counsel for Respondent.

.

INDEX

—_——_ PAGE

The question propounded in the petition (at p. 2)

is not presented by the record, and it is without

a SF rer tr Ma oe Bat rarer te page 2

The alleged errors specified in the petition do not

weers, Foveew OF ls COO oi ies cs cccscies 14

The decisions below are eminently just ............ 17

EES cack pencinenlar head so esnebysea Nenad 18

TABLE OF CASES

Brennan vy. National Equitable Investment Co., 247

x ei OO A eeates an cneae enamels s 11

Conrow v. Little, 115 N. Y. 387 (1889) ............. 11

Hubsch v. U. S., 174 F. 2d 7 (5 C.), e.g. 3388 U.S. 814,

remanded for settlement, 338 U. S. 440 ........ 15

King v. U.S., 178 F. 2d 320 (5 C.) ¢.d. 339 U.S. 964... 15

RG UE, Big Be PO BO TDD on vic kn ewes cunesst 15

Lowendahl v. Baltimore & Ohio Ry. Co., 247 App.

See ee Cs Bp OU EOE, BE ah ncn uwensaens 10

Lynch v. Gibson, 254 App. Div. 47, aff’d 279 N. Y.

OR. AE Nae axe dvnan uens Camekes Rekcmee ke 10

Marr v. Tumulty, 256 N. Y. 15 (1931) .............. 11

Murphey v. United States, 179 Fed. 2nd 748 (9 C.

a ee ee RR arene Pe PE Po Pee 15

New York Telephone Co. v. Jamestown Telephone

Comer, S50. FT. BUD CID) anc vn vescnccccessns 11

Paddon v. Taylor, 44 N. Y. 371 (1871) .............. 11

Siciliano v. U. S., 85 Fed. Supp. 726 (D. C.N. J.) ... 15

Walther v. News Syndicate Co., Inc., 276 App. Div.

ROD: 1K... Sak: Dk, DI) as ee kviseccnscses 5

Watson v. U. S., 90 Fed. Supp. 900 (Alaska, 1950) .. 15

U.S. v. Johnson, 181 Fed. 2d 577, 580 (9 C. 1950) .... = 18

U. S. v. Wibye, 191 Fed. 2d 181 (9 C. 1951) ........ 15

Sn eee Tas

PEARL be IN

iaiihttinetisctiriewstomins ici:

ii INDEX

U. S. Statutes

Judicial Code, 28 U.S. C., 1346b .....

Judicial Code, 28 U.S. C., 2674 ......

MIscELLANEOUS

Restatement, Contracts, Sec. 477 ....

Williston, Contracts, vol. 5, See. 1518

“ee ee ee ee ee eee

e

No. 369

IN THE

Supreme Court of the United States

Ocrosper Term, 1952

7X

v

Tue Unirep States,

Petitioner,

v.

Guapys E. McConvitie, Administratrix of the Goods, ete.,

of Frank J. McConvitie, Deceased, for and in behalf

of herself as Widow and James McConvii.e, Next-of-kin

and Heir at Law of the Decedent, and Guapys E. Mc-

ConvILLE,

’™

v

BRIEF IN OPPOSITION

To the petition of the United States for writ of cer-

tiorari to the United States Court of Appeals for the See-

ond Cireuit to review that court’s judgment, entered July

2, 1952, affirming (with the elimination of a $20 item of

costs) a judgment for $60,800 plus costs in favor of the

respondent rendered by the District Court of the United

States for the Eastern District of New York, on August

13, 1951.

The question propounded in the petition (at p. 2) is

not presented by the record, and it is without merit.

(1). The trial court found (R. p. 150), and the Court

of Appeals unanimously affirmed (R. pp. 165-167), that

the United States Army truck, the negligent operation of

which caused the damage, at the time of such damage,

‘*was operated by then Sergeant John R. Anderson,

with the permission and in behalf and in the business of

the defendant, in the line of his duty and within the

scope of his employment. Said truck had been duly

issued to him by the defendant, in due and regular

course, at its Army base at Mitchel Field, within the

State of New York, for the purpose of proceeding to

a specific warehouse to procure and convey therefrom

property of the defendant. At the time of the said

occurrence the said John R. Anderson was driving

the said truck to the said warehouse’’ (Finding of

fact #4 6; emphasis supplied).

The facts thus found were established conclusively not

only by the uncontradicted testimony of Sergeant Anderson

but also by the officially issued ‘‘Driver’s Trip Ticket’’

introduced in evidence by the defendant (Defendant’s Fx-

hibit G, R. p. 99) and other evidence introduced by the

defendant as mentioned below. That the dispatch of army

vehicles to the Santini warehouse and other places in the

early hours of the morning was a regular procedure is

indicated by the “Gate Sheet’’, included in Defendant’s

Exhibit H (see 54th p. thereof), which showed the dispatch

of eight other army vehicles, on the same morning, be-

tween midnight and 5:10 A. M., two of which were also to

Santini’s—one at 0.05 and the other at 2.05—and the other

six were to ‘‘Post’’ ‘‘Hempstead’’ ‘‘Freeport’’ ‘‘ Bayside

Avenue’”’.

EA ANAEROBIC OR ERE GED CENTRO RG TEMES —

3

Immediately after the accident the army officials inade

a thorough investigation which included the interrogation

of all of Sergeant Anderson's companions. After the army

authorities were apprised of the institution of this action

and the demand therein of $375,000, court-martial charges

against Anderson were ordered on December 1, 1948 (De-

fendant’s Exhibit H, 19th p.). The charges which fol-

lowed, on December 7th (id. 2nd p.), on the basis of the

thorough investigation which had been conducted, were

that Anderson had misused a military vehicle which had

been duly dispatched to him **by deviating from the route

authorized’’—the converse of awrongful inducement of the

authorization or order. Anderson was subsequently tried

and convicted of that charge.

Anderson nerer was charged with having obtained the

motor vehicle by fraud or misrepresentation or other illegal

means (see the charges at p. 2 of Defendant’s Exhibit H,

the Judge Advocate’s ‘‘review’’ of the ‘record of the

trial’? and his approval of the findings on the 9th and

10th pages thereof; also the outline of evidence for sub-

mission at the court-martial trial on the 60th p. of Ex-

hibit H).

It was the petitioner who introduced in evidence the

entire court-martial record and the dossier pertaining

thereto, including the entire investigation (R. p. 106).

(2). Manifestly, the found facts, quoted above, based

upon the uncontradicted evidence in the record, do not

give rise to the question formulated on page 2 of the peti-

tion. The facts present neither the question of liability

for the negligence of ‘‘an employee driving a government

vehicle solely for his own private purposes’”, nor of an

employee who ‘‘obtained permission of his superiors to

use the vehicle through fraud.”

* We discuss this phase more fully at pages 14-16 infra.

Se es a ee eee ae SOLED ARE GT TRIN EO Be 4

—y

4

(3). It follows therefore, that the ‘‘primary issue’’, if

there is any, is something else. In truth, petitioner’s

‘*primary issue’’ is nothing more than the correctness of

the trial court’s exclusion of certain questions on the direct

examination of two of the driver’s (Sergeant Anderson’s)

companions called as witnesses for the defendant.

What questions of law are necessarily presented for

consideration by the exclusion of the proffered testimony?

If, as seems to us abundantly clear, the rulings were cor-

rect for reasons other than the one challenged in the peti-

tion, the question raised by the petition is not necessarily

presented—indeed, is immaterial.

Hence, the setting and context of the questions must be

looked into.

The first important fact is that the excluded questions

came after Sergeant Anderson testified and was cross-

examined and the defendant had introduced the court-

martial record and all papers pertaining thereto, De-

fendant’s Exhibit H.

Sergeant Anderson was cross-examined as to the genu-

ineness of the oflicer’s request for a bed and mattress and

(over objection) as to whether that was not a ‘‘fabricated

story’’ to procure a vehicle for the sole purpose of going

to town with companions (R. pp. 88-93; 97-102). When

Anderson reaffirmed the bed and mattress testimony, de-

fendant introduced the record of and pertaining to An-

derson’s trial by court-martial, with the implied represen-

tation that Anderson had been ‘‘charged by the Army’’

with obtaining the motor vehicle in question ‘‘illegally and

by fraudulent means’’ and had been found guilty thereof

(R. p. 104)—which is not at all what the court-martial

record showed. The court received that record over plain-

tiff’s objection (R. pp. 104-5)—apparently, on the theory

that it constitutes prima facie evidence of the facts therein

4)

found (see Walther v. News Syndicate Co., Inc., 276 App.

Div. 169 (1949) and cases therein discussed).

That court-martial record (Defendant's Exhibit H),

however, confirmed Anderson’s testimony, for, after full

investigation, as already noted (at p. 3 supra), Ander-

son was charged with, tried for, and convicted of not

‘‘obtaining the motor vehicle in question illegally and hy

fraudulent means’’, but misusing a military vehicle which

had been diuly dispatched to him ‘‘by deviating from the

route authorized’’.

Thus, by the record as well as by the cross examination

of Anderson, the defendant had affirmatively negatived the

allegation in its answer that Anderson *‘had procured the

vehicle without proper and legal authority and by fraud

and misrepresentation’’.

After having done that, defendant called Sergeant Frank

W. Brenner. After testifying that he had seen Sergeant

Anderson on the night of October 11, 1948 at the recrea-

tion hall between 10:30 and 11:00 P. M. and again twenty

or thirty minutes later in the barracks (R. ff. 252-3), Bren-

ner said that Anderson said nothing in the barracks and

that he couldn’t remember at whose suggestion he went

with Anderson into the motor vehicle (R. f. 253). There-

upon he was shown his statement of October 12, 1948

which was part of the court-martial record (Defendant’s

Exhibit H); but it did not serve to refresh his recollection

(ff. 253-4). Then came the following questions to which

the court sustained objections (ff. 254-256) :

“Q. Now, did you hear any conversation about tak-

ing a ride in the motor vehicle?”’

‘*Q. Did you hear Anderson say anything about

going on a ride?’’

‘*Q. Did Anderson ask you to come along with

him?’’

en _ Ae OR

6

**Q. Did you at any time know that you were going

to Oceanside t”’

*“Q. Did you know that you Were going to Santini’s

warehouse ?"’

**Q. Did you hear anyone say anything about a mat-

tress or cot—"*

As its next witness, the defendant called another of the

soldiers who had accompanied Arderson on the truek on

its way out from the base, Robeit F. Goodman, In the

course of his direct examination, oJections were sustained

to the following questions (ff. 257-8):

“*Q. Now before you went into the motor vehicle,

was there any talk about the use of the motor

vehicle ?’’

“Q. Did you have any conversation with Anderson

before the motor vehicle was brought to the bar-

racks ?’’

“Q. When you got into the motor vehicle, did you

get into it for the purpose of going any particular

place?t”’

“Q. Did you intend to go to Santini’s warehouse?’’

No rulings other than the exelio" of those questions

are involved here.

(4). It must be remembered thet there already was in

evidence the statements which the® Witnesses had made

to the army authorities immediatel’ ®fter the accident and

also the testimony which they hid Siven at the court-

martial. All of that was included ™ Defendant's Exhibit

H whieh had been received in evic®™¢e (CR. p. 106).

Assuming, arguendo, that the excluded questions were

competent, as they were not (see y oe eayra), ond ven

sonably calculated to elicit the reitiT™@t0" by Brenner that

SEIT ART ED eae yh Rtn cts

7

before Anderson had left to get the truck **it was under-

stood * * * that we would go to Hempstead. Anderson

suggested it’’ and by Goodwin that there had been talk

‘about going into town to get something to eat’’ and ‘the

question was brought up about getting a vehicle to go to

town” but he **didn’t remember too mueh of what hap-

pened *’—would such vague and nebulous reiteration have

affected the decision?

Even if competent, could such restatement have served

to establish that there had been no request for a bed and

mattress and that the Officer of the Day who directed the

issuance of the vehicle, and the army intelligence officers

who investigated immediately after the accident had heen

hoaxed and that Anderson had been mischarged, mistried

and misconvicted?

The answer to the contrary is found in the decision of

the trial court, for, as already noted, he had before him

the statements which the two soldiers had made. More-

over, the utter improbability that any reasonable trier of

the facts could give such testimony any outweighing force,

probably is what the Court of Appeals had in mind in

concluding that (R. p. 167):

**Refusal of the testimony, therefore, could have been

of no prejudice to the Government in this case tried

by the court without a jury.”’

In our brief to the Court of Appeals, we stated on this

point (at pp. 46-47 of the Appellee’s Brief):

**Even if the proffered testimony be viewed as

legally relevant and competent and not insufficient, it

is apparent that it is of so unsubstantial a nature and

content that its receipt would not, and properly could

not, have affected the result. Sinee, upon full con-

sideration thereof, the command at Mitchel Field did

es ae as, ot eee RI ee Mee Py

8

not deem itself duped and the Judge Advocate’s De-

partment perceived therein no basis for a charge that

the command had been duped, how could that very

same evidence lead a court to override the determina-

tion of the responsible officers and conclude that, in

fact, they had been duped and were obtuse or careless

in failing to so appraise and evaluate the referred to

soldiers’ statements? On the contrary, the prima facie

presumption that the officers properly discharged

their duty must lead to the conclusion that they had

inquired into the genuineness of Anderson’s statement

that an officer had asked him for a bed and mattress,

and had found that to be true. That inference is

strengthened by the fact that nowhere in Defendant’s

Exhibit H is there a suggestion that there was any

doubt of the veracity of Anderson’s statement in that

regard.

Therefore, even if * * * it be held that technical

error Was committed in excluding the proffered testi-

mony, the error manifestly was insubstantial and

harmless. "*

It is manifest from the above quotation from the opinion

of the Court of Appeals that that Court agreed with the

foregoing appraisal.

Therefore, it is submitted that the substantive question

which the petition seeks to have this Court consider, is not

necessarily presented by this record since the probative

force, if any, of the exeluded testimony is so negligible

and so overwhelmed by the other evidence that, in any

event, no material error was committed.

(5). Moreover, the excluded questions were incom-

petent, as a matter of law, irrespective of the abstract

substantive question raised by the petition. They were

incompetent on at least four grounds:

ae

3

9

(a). Before embarking on the referred to line of

testimony, the defendant itself, as already noted, in

its Exhibit H, had established that after gathering all

of the referred to testimony and in the face of it, the

Army authorities—six weeks after completion of the

investigation and with knowledge of this MeConville

action—reaffirmed the propriety and regularity of the

issuance of the truck and the Army mission on which

it had been dispatched. The sole wrongdoing, it was

held, was in ‘‘deviating from the route authorized

and going to Oceanside" instead of directly to San-

tini’s warehouse and back.

Thus, defendant itself had offered conclusive proof

that after full inquiry and with knowledge of the

statements of the participants and with no less infor-

mation or knowledge than that possessed by defend-

ant’s counsel at the trial of this case—the military

authorities did not repudiate the issuance of the truck,

and, on the contrary, had affirmed it.

(bh). The proffered testimony net only was in con-

tradiction of that deliberate reaffirmation of the com-

mand; it was in contradiction also of the judgment

which defendant itself had introduced as evidence in

its favor. The judgment and evidence in contradic-

tion thereof (or at variance therewith) could not both

be credited. Defendant had to make a choice whether

to seek the benefit of the judgment and of the evidence

on which it was based, on the one hand, and, on the

other, evidence in conflict therewith. When defendant

introduced the court-martial judgment and the pro-

ceedings which resulted therein, it made the choice and

thereafter, we submit, could not offer evidence to dis-

credit it—at least not without withdrawing (with leave

of the Court) the previous evidence.

10

(c). The proffered testimony was incompetent for

the further reason that it was not of contemporaneous

declarations by Anderson in illumination of his then

purpose. The defendant’s offer consisted only of dec-

larations by others than Anderson. Those, we submit

were not competent as evidence of Anderson’s state

of mind and motivation nor as evidence that, in fact,

there had been no officer’s request for a bed and

mattress.

(d). Finally nothing in the October, 1948 state-

ments of Goodwin and Brenner or of any one else,

if repeated on the witness stand and _ believed,

would have contradicted Anderson’s testimony that

he had been asked by an officer to procure a bed and

mattress and that it was to procure that bed and

mattress that he applied for and was issued the truck.

Expression of a desire for a vehicle to go to town is

not inconsistent with—and, therefore, does not dis-

prove—a request by an officer for a bed and mattress.

Proof of such talk would prove only that the officer’s

request came at a very welcome time. Fraud, calcu-

lated trickery, are not presumed or to be lightly

found. Such grave misconduct must be established by

convincing proof. Therefore where evidence relied on

to establish it is reconcilable with innocence and with

the testimony of the alleged wrongdoer and there is

no inconsistency, the evidence is insufficient for a

finding of fraud (Lynch v. Gibson, 254 App. Div. 47,

51, aff’d 279 N. Y. 634; Lowendahl v. Baltimore &

Ohio Ry. Co., 247 App. Div. 144, 158).

For all of the above reasons, we believe that the sub-

stantive question raised by the petition is not reached and

is not presented here.

(6). Beyond that, we submit that there is no reasonable

basis for the position urged by the petitioner that an

11

owner of a motor vehicle who sends it out on the public

highways under a mandate to go to a specific place for a

specific purpose is not responsible for the ensuing opera-

tion of that vehicle if he had been misled or tricked ito

authorizing or directing the errand.

It is noteworthy that the petitioner cites no authority

in support of its contention. If there were validity in it,

that proposition of law would have been laid down long

ago.

The only conceivable basis for the contention is analogy

to the right in contract law to rescind for fraud. But the

well settled limitations upon that right preclude its in-

vocation as a defense against an injured innocent third

party.

A contract may be rescinded for fraud only when such

fraud is practiced by and chargeable to the other party to

the contract; the fraud of a third party can not serve to

impair the binding effect of the contract (Restatement,

Contracts, See. 477; 5 Williston Contracts See. 1518; Con-

row v. Little, 115 N. Y. 387 (1889)).

Even when defrauded by the other party to the con-

tract, a right to rescind is lost unless exercised promptly

after discovery of the facts and restoration of the status

quo ante is possible and offered (Brennan v. National

Equitable Investment Co., 247 N. Y. 486 (1928); Marr v.

Tumulty, 256 N. Y. 15 (1931); N. ¥. Telephone Co. v.

Jamestown Telephone Corp., 282 N. Y. 365, 372-3 (1940)).

In no event may there be disaffirmance or rescission to

the prejudice of third parties (Paddon v. Taylor, 44 N. Y.

371 (1871); Conrow v. Little, supra; Marr v. Tumulty,

supra).

Hence, ex post facto disaffirmance or rescission cannot

serve to, and does not, free a party of obligation or lia-

bility already incurred to innocent third parties.

12

The plaintiff is such an injured innocent third party.

It is not possible to permit the defendant to disaffirm or

rescind and at the same time restore the plaintiff to her

status quo ante. If the order had not been issued, the

truck would not have been out and the accident would not

have occurred. At best, the defendant could have rescis-

sion only on condition of indemnification of the innocent

plaintiff whose injuries flowed from the issuance of the

order; and indemnification is all that the judgment pro-

vides for.

The assimilation glibly suggested in the petition (at p.

14) of fraud to theft, disregards the basic difference be-

tween them in respect to liability to third parties that is

emphasized in every branch of the law. One whose car is

stolen, like one from whom negotiable instruments are

stolen or one from whom an undelivered locked-up exe-

cuted document is burglarized, does nothing from which

liability can flow—he is not an actor in any sense. On the

other hand, one who does act, voluntarily and deliberately,

however mistakenly or misled, is an actor who can not

shake off responsibility for the consequences of his act

(however induced) to innocent others; indeed, as we have

seen, even as to those who defrauded him—as distinguished

from thieves—he can be relieved only if he repudiates

promptly after discovery and offers restoration of the

status quo ante.

If not already fully evident, the falaciousness of the

petitioner’s contention perhaps is exposed more clearly

by a consideration of several concrete examples.

Suppose a construction contract is entered into through

fraud practiced on the contractor, the latter orders mate-

rial and employs workmen, and thereafter discovers the

fraud and cancels the contract. Thereby does he shake off

liability to the workmen and suppliers or for torts com-

mitted by the contractor’s employees during the prosecu-

tion of the work?

13

Suppose an innocent person is injured while fire appara-

tus is rushing to respond to an alarm. Does it make any

difference whether the alarm was genuine or was unlaw-

fully set off by someone for insidious personal reasons,

even if that be at the instance of the driver?

Suppose a commanding general sends trucks to a dock

to pick up supplies which he had been told are there for

his post, and, on the way, some one negligently is run

down, is there no liability if it develops that the message

to the general was a hoax?

9

The answer to the above questions obviously is ‘*no

So here, as far as concerns third persons on the highway,

it is wholly immaterial how the authorization and diree-

tion of the issuance of the vehicle came about, so long as

its issuance was authorized and directed by due authority.

Whether or not the constituted authorities acted mistakenly

or had been duped is immaterial.

Hence, it seems to us clear beyond reasonable challenge

that the Court of Appeals was eminently correct in holding

that evidence on whether or not the issuance of the order

to Anderson had been induced by falsity on his part had

“‘no bearing on the scope of Anderson’s employment”’, as

against third parties on the highway who were injured by

the negligence in the execution of that order. A contrary

holding that an employer is not liable for the negligence

of his employees in the execution of assigned tasks where

he had been duped into ordering those tasks, even though

the deception be not chargeable to the injured persons,

would have been an indefensible innovation at war with

settled principles.

(7). The only basis for the petition to this court to con-

sider this contention seems to be the novelty thereof. It is

respectfully submitted that novelty alone does not suffice

to invoke this court's consideration; at the very least there

ROE Ct LER WAVE ERROR

Bow. Ne ee

14

should also be merit, even if not, as is usually required, a

conflict in the authorities.

In this connection it is noteworthy that the petition seems

to assume that if liability here were grounded on permis-

sion to use rather than on respondeat superior, the claimed

fraud would be immaterial. But if fraud by the employee

Vitiates the instructions of his employer, why would it not

equally vitiate permission secured from an owner? The

petition, therefore, argues not for an observance of the

distinction between the respondeat superior rule and the

**permission’’ rule—a point not at all involved in this case

as decided by the Court of Appeals—but for elimination,

under either test, of liability to injured third parties where

the owner’s direction or authorization to use the vehicle

results from imposition on him. We respectfully repeat

that such a doctrine is completely at war with settled law.

The alleged errors specified in the petition do not

merit review by this Court.

1. What is said above, we feel, adequately demonstrates

that, in the cireumstances of this case, the claim of **fraud’’

—specified as the basis of the first claim of error (p. 7)—

is not necessarily presented by the record and, in any

event, is too wanting in merit to earn this Court’s consid-

eration.

2. The secondary contention that at the time of the

accident Sergeant Anderson was not acting within the

scope of his employment or ‘‘in the line of duty’’ because

of the anterior deviation, likewise, we respectfully submit,

does not merit review.

The petition points to no conflict between the decision

herein and the decisions in other circuits, nor to other con-

15

flict of authority. On the contrary, the decision herein is

directly in accord with that of the Ninth Circuit Court of

Appeals in Murphey v. United States, 179 Fed. 2d 743

(1950), United States v. Johnson, 181 Fed. 2d 577 (1950),

and United States v. Wibye, 191 Fed. 2d 181 (1951)—all in-

volving the use of army vehicles. It is noteworthy that in

each of those cases the government accepted the adverse

judgments without applying for certiorari. The decision

herein is in accord also with the District Court decisions in

the army vehicle cases of Lowe v. United States, 83 F.

Sup. 128, Siciliano v. United States, 85 F. Sup. 726 and

Watson v. United States, 90 F. Sup. 900. In each of

those the government accepted adverse judgments without

seeking review even by a Court of Appeals.

The decision of the Court of Appeals for the Fifth Cir-

cuit is Hubsch v. United States, 174 Fed. 2d 7, is not contra

to anything held in this case. The Hubsch case is not at all

in point, for there the accident occurred while the soldier

was driving to a restaurant for breakfast in the course of

a week-end holiday for his own private enjoyment totally

divorced from any official mission. Yet even there the

decision against liability was deemed by this court worthy

of review, for certiorari was granted in 338 U. S. 814.

There the government had the opportunity to have settled

by this court the impact upon liability under the Federal

Tort Claims Act of state statutes broadening the liability

of owners of motor vehicles. The government, however,

deliberately elected not to risk, and to avoid, such an

authoritative settling decision by making an out-of-court

settlement of the case (338 U. S. 440).

The antecedent deviation from the authorization or order

in this case was substantially less than in any of the cases

referred to above. Therefore, in the light of the Govern-

ment’s election not to seek review in any of those cases,

16

it is not easy to perceive why the Government should seek

review in this case.

Perhaps it is not amiss to emphasize that the accident

here occurred while Anderson was driving to the ware-

house to accomplish the mission on which he had been dis-

patched. However wayward he had been previously, at

that time he was attending to duty, and doing so exclu-

sively. Never, after he started from the base, was he free

of the double duty of going to Santini’s and of returning

the truck to the base. Until accomplishment, he was under

a continuing duty to address himself to those tasks; having

strayed therefrom, he was under a continuing duty to cease

his deviation and return to duty. When he did so and

while he was driving the truck to Santini’s and thence to

the base, he certainly was serving the United States and

performing his line of duty, however remiss he had been

prior thereto. Otherwise, it would have to be said that

having strayed from the authorized mission, it was his

duty to abandon the truck wherever he had taken it. That,

of course, is contrary to common sense.

In deciding the case as they did, the courts below fol-

lowed precedent to such an extent that petitioner does not

cite any conflicting authority. The factual situations in

King v. United States, 178 Fed. 2d 320 (C. A. 5), e.d. 339

U. S. 964, and in the other cases relied on by the petitioner,

place those cases in a category entirely different from this

case, as the Court of Appeals noted in its opinion

(R. p. 166).

3. The third specifieation of error that the Court of

Appeals ‘‘erred in affirming the judgment of the District

Court”’ (p. 8) is a generalization which presents no specific

point for consideration.

17

Ii!

The decisions below atre eminently just.

It is eminently fair that when ‘the United States uses the

highways of a state, it should déo so on the same terms of

liability towards the others on ‘the roads as are imposed

by the state generally. Equalitsy of liability is so plainly

fair and, under modern conditicons, so socially desirable,

that Congress provided for the diischarge of that moral and

economic obligation by not only ;providing for liability but

| stipulating that (with exceptioms not material here) the

United States shall have the samme liability as ‘‘a private

‘person . . . in accordance with tthe law of the place where

the act or omission occurred’’ (£28 U. S. C. 1346(b)) and

| ‘tin the same manner and to the: same extent as a private

| individual under like circumstamees’’ (id. 2674).

The dispatch of the truck, im the early hours of the

morning, with companions who hézad been drinking and who,

in accordance with regulations;, were permitted to go

along ‘‘for the ride’’ (R. pp. 64-6, 91-3, 101-2), exposed

the public to extra hazards, for which it is but fair that

the citizenry, in whose behalf it: was done by its respon-

sible officers, should bear collective responsibility. No

doubt, the established procedure of allowing companions

‘for the ride’? was in further:ance of the army’s con-

cern and necessity to promote the morale of its men.

That promotion of morale wais in the service of the

| United States and affords addedi reason for collective lia-

bility and against imposing the consequent damage upon

the hurt innocent individuals.

That the accident here was caused solely and exclusively

by the negligence of the driver off the army truck was dem-

onstrated to a mathematical certainty. Defendant no

longer contends otherwise. The evidence showed conclu-

sively that the driver disregarded a four-second amber

; * =, = as oh gent Pe ie Six

Tey , 7 oe SSI8y

18

light warning and then ran through a red light at a high

speed; even with those transgressions, he would have

avoided the accident if he had, as he should have, travelled

to the extreme right of a four-lane road instead of toward

the center. The place where the collision occurred and

the presence of the traffic light ‘‘tripper’’ objectively

proved all of that beyond controversy.

It is equally certain that the deceased was free of any

negligence, as is made abundantly clear in the opinion of

the Court of Appeals (R. p. 165). Totally unwarranted is

the slur in the petition (at p. 4) that the decedent ‘‘had

been driving while intoxicated’’. That was disproved not

only by the uncontradicted testimony of Mrs. McConville

(R. pp. 31-5, 42, 45, 47, 52-3), referred to in the opinion of

the Court of Appeals (R. p. 165), but also the concessions

of the toxicologist called as a witness by the defendant (R.

pp. 77, 85) and by the defendant’s failure to call a single

one of the numerous persons who would have been able to

testify to the decedent’s intoxication if that were the fact,

for he had just been in the company of numerous persons

at a yacht club party (R. pp. 32, 42).

In fairness, then, why should not the decedent’s widow

and son be paid their economic loss? The human loss, of

course, is beyond reparation.

IV

It is respectfully submitted that the petition should

be denied.

Respectfully submitted,

CopaL MinTz,

Grorce A. GraBow,

Meyer Dvorkin,

Counsel for Respondent.

October 28, 1952.