Petition for Writ of Certiorari — Storer Broadcasting Co. v. United States (No. 888)

——

LIBRARY, . 4

SUPREME COURT. u. U.

IN THE

are dum i nn n

OCTOBER Tem, 1957.

No. 888

STORER BROADCASTING COMPANY, DETROIT FIRE &

MARINE INSURANCE COMPANY, and ASSOCIATED

AVIATION UNDERWRITERS,

Petitioners,

v3.

_THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

tor the Fifth Circuit.

GEORGE W. YANCEY,

lith Floor, Comer Building,

_ Birmingham 3, Alabama,

8 Counsel for Petitioners.

JAMES E. CLARK and

LONDON, YANCEY, CLARK and ALLEN, —

Of Counsel.

erm Mi, A SR OLD IT LEILA AS ISITE INE TATE I LT AIT TE LET TTD —

Br. Louis Law Rm eco, Inc, 416 N. Eighth Street. CEatral 1-4477.

\:

5 Page

The opinion sought to be revie wen 1

Grounds on which the jurisdiction of this court is

eo i os nas nek kak a coe ces ceses esc 2

The question presented for revieennn. 3

. ¶—A—WAA((˙Üi r 3

UNE OE q ß 4

Reasons relied on for the allowance of a writ........ 23

Appendix A—The opinion sought to be reviewed. 37

Appendix B—Resumé of statutes involved, but not set

1 Ro ac, tcc bnessioccctcese 40

Cases Cited.

Hall v. Smith, 2 Bing. 150, 130 English Reprints 265. 30

Martin v. Republic Steel Company, 226 Ala. 209, 146

„ ee ee ORE Crack Sec eueweetese 29

Massachusetts Bonding & Insurance Company v.

United States, 352 U. S. 128, 1 L. Ed. (2) 189, 77

„ ao FEN 65 i AGA Skee Cece ccushpineedes 27

Moore-Handiey Hardware Company v. Williams, 238

. FE a i 5s CRG ü 0s caccdveiccewe 27, 28

O’Toole et al. v. United States et al., 206 Fed. (2) 912 2

Rayonier, Inc., v. United States, 352 U. S. 315, 1 L. Ed.

(2d) 354, 77 Sup. Ct. 374...... J 27

The Indian Towing Company v. United States, 350

U. S. 61, 100 L. Ed. 48, 76 Sup. Ct. 122............. 27

U. S. Steel Corporation v. Mathews, 261 Ala. 120, 73

eg ͤ½—n ̃ ̃ĩé—v , ETT ee 27

1 ii

United mates e. Prager, as yet unreported, but also

decided by the Court of Appeals for the Fifth Circuit

„„ 23

76 Sup. Ct. 1919 . 26

United States v. Yellow Cab, 340 U. S. 543, 95 L.

— nnn 24, 25, 26, 34

Williams v. United States, 350 U. S. 857, 76 Ct.

r 7.28, 27, 34

Statutes Cited.

Chapter 171, Title 28, U. S. C. A. 2671............... 3

Section 2674, Title 28, U. S. Code. 3, 4

. 0» 0 rn a

„„ ME i'vs o's od ag ia voccavoteassenaeau’ 31, 32

| 1 m

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1957.

STORER BROADCASTING COMPANY, DETROIT FIRE &

MARINE INSURANCE COMPANY, and ASSOCIATED

AVIATION UNDERWRITERS,

Petitioners,

v8.

THE UNITED STATES OF AMERICA, .-

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Omen

A.

THE OPINION SOUGHT TO BE REVIEWED.

This is a Petition for a Writ of Certiorari to review the

decision of the United States Court of Appeals for the

Fifth Circuit affirming the judgment of the United States

.

\

13

Distriet Court for the Northern District of Alabama in

favor of the United States of America. The opinion of the

United States Court of Appeals as of this date has not been

published in the Federal Reporter; however, a copy of the

opinion is attached to this Petition as Appendix I. The

opinion of the District Court is to be found in the record on

pages 306 to 310.

A Petition for Writ of Certiorari involving the same

question presented herein is understood to be before the

Supreme Court in Mabel Prager, etc., et als., Petitioners;

v. United States of America, also up from the Fifth Cir-

cuit.

B.

GROUNDS ON WHICH THE JURISDICTION OF THIS

COURT IS INVOKED.

The judgment of the United States Court-of Appeals

sought to be reviewed was rendered on January 9, 1958,

and entry of the same was made the same date.

The jurisdiction of this Court is invoked because the

United States Court of Appeals for the Fifth Circuit has

decided an important question of Federal Law which has

not been, but should be, settled by this Court, and in doing

so has rendered a decision in conflict with the reasoning

of the United States Court of Appeals for the Third Cir-

cuit expressed by dicta in the case of O' Toole et al. v.

United States et al., 206 Fed. (2) 912, involving the same

matter as the instant case.

9

C.

THE QUESTION PRESENTED FOR REVIEW.

The sole question presented herein is whether a member

of the National Guard of a State who has not been called

to the active service of the United States is foreclosed from

being considered an employee of the Government”’ within

the meaning of the Federal Tort Claims Act without re-

gard to the doctrine of respondeat superior of the forum

in which he negligently damages another. If a third party

is negligently injured by a member of the State National

Guard while operating a conveyance which is the property

of the United States, and under circumstances whereby the

guardsman is directed, controlled and paid by the Federal

Government, is the third person to ,be denied a right of re-

covery under the Statute merely because the tort-feasor

at the time of the accident has not been called into the

active service of the United States? Stated another way,

we seek herein to determine from this Court if a liberal

construction of § 2674 of Titie 28 of the U. S. Code does

not permit recovery by a claimant under the Act for the

negligence of a State Guardsman who has not been called

into the active service of the Federal Government: when by

a preponderance of the evidence the United States in the

status of a private individual’’ would be liable under the

law of Agency of the State in which the accident occurred.

D.

STATUTES INVOLVED.

Chapter 171 of Title 28 of the United States Code An-

notated deals with tort claims procedure. Under § 2671

relating to definitions it is stated:

“ Federal Agency’ includes the executive depart-

ments and independent establishment of the United

e

States, and corporations primarily acting as, instru-

mentalities or ageucies of the United States, but does

not include any contract with the United Stege.

Employee of the Government’ includes officers or

employees of any federal agency, members of the mili-

tary or naval forces of the United States, and persons

acting on behalf of a federal agency in an official on-

pacity, temnorarily or permanently in the service of

the United States, whether with or without somper..

sation.”

§ 2674 of Title 28 provides:

“The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the

same manner and to the same extent as @ private in-

dividual under like circumstances, but shall not be

liable for interest prior to judgment or for punitive

damages.”

Title 32 of the United States Code Annotated entitled

“National Guard” contains numerous sections relating to

the composition, organization and control generally of the

State National Guards by the Federal Government. A re-

sume of the pertinent provisions indicative of the i-

sion of the United States over a guardsman whether in

the active service or not is appended to this petition as

Appendix 2.

E.

STATEMENT OF THE CASE.

This case came to the United States Court of Appeals

for the Fifth Circuit on an appeal by the petitioners from

an adverse judgment rendered by the District Court of the

United States for the Northern District of Alabama on

January 14, 1957, in a suitvoriginally filed by the petitioners

—

*

as plaintiffs in said District Court under the jurisdiction

conferred by the Statute commonly cited as the Federal

Tort Claims Act. The original complaint filed on January

31, 1955, was never amended and asserted claim against

the United States of America by averring that on Feb-

ruary 5, 1954, a DeHavadand Dove aircraft owned by the

plaintiff Storer Broadcasting Company, and insured

against loss by the plaintiffs, Detroit Fire & Marine Insur-

ance Company and Associated Aviation Underwriters, was

damaged to the extent of $130,000.00 by reason of the neg-

ligent operation of an Alabama Air National Guard F-51

a reraft owned by the defendant, The United States of

America, and operated by a servant, agent or employee

of the said defendant who had been permitted the use of

said aircraft by the United States and who was operating

the same on a mission for its benefit (R. pp. 1 through 4).

Other averments in the complaint were to the effect that

the circumstances by which the said DeHaviland Dove

aircraft was damaged and destroyed. were such that the

persons responsible for the operation of the Air National

Guard F-51, if they were private persons, would be liable

to the plaintiffs for their damage and also that under the

laws of the State of Alabama where the said accident oc-

curred the United States of America as owners of the

Air National Guard F-51 aircraft would be liable to the

plaintiffs for their damages if the said United States of

America were a private person.

On trial date, October 8, 1956, a stipulation between the

parties was filed which, in effect, agreed that the plaintiffs’

damages amounted to $99,248.70, and that the plainiiff in-

surors, as subrogees of Storer Broadcasting Company, had

a right to maintain the action by virtue of subrogation

conditions in the policy issued to Storer Broadcasting

Company by them (R. pp. 28 through 32). The trial en-

sued and was concluded on the same day, with the court re-

serving its ruling upon the motion of the defendant for a

5

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judgment until its order of January 14, 1957 (R. pp. 306

through 310). ;

On February 13, 1957, the plaintiffs fila. heir notice

/of appeal, duly designated the contents of the record, pre-

pared and filed briefs and argued the case orally before the

Unitea States Court of Appeals for the Fifth Circuit on

October 9, 1957. Judgment of the Fifth Cireuit Court of

Appeals was rendered on January 9th, 1958, and as has

been stated a copy of th- opinion is attached to this

petition as Appendix 1.

The accident made the basis of the suit occurred on Feb-

ruary 5, 1954, when an F-51 type aircraft owned by the

United States and loaned to the Alabama Air National

Guard pollided with a DeHaviland Dove airplane which

was parked on the ramp of the Municipal Airport in Bir-

mingham, Alabama. The Army plane was being operated by

Major Stuart H. Daigneau in the course of his landing

after a thirty-minyfe flight from Montgomery to Birming-

ham on a training mission, which the evidence adduced at

the trial showed to be a part of the National Guard

program.

There was no conflict in the testimony concerning the

status of Major Daigneau or the arrangements between

him, the Alabama Air National Guard, the U. S. Air Force,

or the Federal Agency known as the National Guard

Bureau. All of the testimony relating to the question of

agency, with the exception of that given by Captain Henry

Fillingim and Major Stuart Daigneau himself, was either

by deposition or in the form of the defendant’s sworn an-

swers to plaintiffs’ interrogatories, or affidavits in support

of motion for summary judgment. In the latter connec-

tion, Winston P. Wilson, Brigadier General, United States

Air Force, submitted an affidavit that on the date of the

accident the Alabama Air National Guard was not in the

„

Federal Service, and he further contended that Major

Daigneau was not on active duty with the U. S. Air Force

at that time. Ile did admit that Major Daigneau was

flying the airplane in question on a training mission (R.

pp. 13-14).

In the defendant 's answers to plaintiffs’ interrogatories

it was admitted that the airplane was the property of the

United States of America on the ocvasion of the accident,

and that it had been issued to the State of Alabama for

field service and training use by the Alabama Air National

Guard. The flight on which Major Daigaeau was embarked

at the time of the collision was described as a ‘‘routine

training flight and it was stated that such training flights

could be considered proficiency flights. The answers also

stated that Major Daigneau was a member of a federally

’ recognized Air National Guard Unit, and that in order for

such units to be so recognized the members thereof must

remain on flying status so as to be eligible to receive flight

pay for their forty-eight training periods per year, and

that they were required by the Air Force to maintain cer-

tain standards of proficiency (R. pp. 15-16).

The testimony of Captain Harry M. Barnes, Jr., was

taken by deposition and introduced into evidence as Plain-

tiffs’ Exhibit 4 (R. pp. 172 through 204). This officer on

February 5, 1954, was the acting Bas Commander of the

Alabama Air National Guard at Dannelly Field, Mont-

gomery, Alabama, and was also acting Squadron Com-

mander with his duties being those of supervising training

personnel (R. p. 173). He stated he was acquainted with

Major Daigneau, who as an officer in the Alabama Air Na-

tional Guard, was assigned to the 106th Tactical Recon-

naissance Squadron (R. p. 174). The witness testified that

under Air National Guard regulations Major Daigneau was

required to get a certain amount of efficiency flying to keep

familiar with the airplane and in this specific case it

8

amounted to 100 hours a year (R. p. 175). He said he was

familiar with the fact that Major Daigneau was involved

in an accident while on a flight on February 5, 1954, which

had originated from Dannelly Field, and which he termed

to be a proficiency flight.

Captain Barnes stated that before Major Daigneau left

“Vannelly Field he was required to obtain a clearance from

Flight Service, which is a branch of the U. S. Air Force

that is charged with the movement or monitoring of air.

planes. He explained that Major Daigneau could not ob-

tain a clearance for cross-country flying from Dannelly

Field as the Alabama Air National Guard does not have

that authority delegated to them (R. pp. 176-177). This

clearance was obtained from the Air Force Flight Service

Center at Maxwell Field, and Captain Barnes stated that

in the case of the Air National Guard at Dannelly Field

the pilots had to have flight service approval prior to

taking off.

Upon being questioned concerning agreements or regula-

tions + xisting betwer the U. S. Air Force and the Alabama

Air National Guard, whereby a record of the proficiency

flights made by the Alabama guardsmen was transmitted

to the U. S. Air Force, the witness replied that certain re-

ports were made to the National Guard Bureau, and that

an individual report of each guardsman’s time is for-

warded to the National Guard Bureau in Washington, D. C.,

from which it goes to the Norton Air Force Base (R. pp.

179-180). He stated that according to his knowledge

Continental Air Command, a branch of the U. S. Air Force,

more or less supervises the Air National Guard training

program through their various and numbered air forces,

and mouitor the program of the Air National Guard to see

that the training parallels that of the Air Force (R. p.

182). He said that the Continental Air Command is

charged with supervising all reserve force training, in-

3 8

cluding Air National Guard, and that his unit received,

through the National Guard Bureau, certain memoranda

from Continental Air Command (R. p. 183). He stated that

Continental Air Command stationed one officer and four or

five airmen at Dannelly Field to help carry out the program

of training and described to some extent the control exer-

cised over the Air National — located there (R.

p. 188).

The witness also stated that on occasion of accidents in-

voiving airplanes, such as the F-51 flown by Major Daig-

neau, they were in some instances sent to Mobile to the

Air Materiel Command, a component of the U. S. Air

Force, for repair (R. pp. 189-190). He further stated that

there was an accident report completed which he was rea-

sonably sure ended up at the Norton Air Force Base where

the headquarters of the Safety Division of the U. S. Air

Force is located (R. p. 190).

Barnes was interrogated as to how Major Daigneau was

paid in the Air National Guard during the period around

February 5, 1954, when the accident made the basis of the

suit occurred, and answered that all National Guardsmen

in this area are paid from Dobbins Air Force Base in the

form of a United States Treasury check (R. pp. 191 to

193). Referring to Major Daigneau’s specific pay for the

5th of February, 1954, the witness stated that he could not

actually say there was any specific pay concerned there,

pointing out that they werdrequired, in order to qualify

for flying pay, to get two hours a month flying time, and

that the pay is the same whether the pilot flies the quali-

fied two hours or forty hours (R. p. 192).

Lt. Col. Joseph R. Waters testified by deposition, offered

as Plaintiffs’ Exhibit 3 (R. pp. 149 through 171). He

identified himself as being an Air Advisor assigned by the

U. S. Air Force to the Alabama Air National Guard Unit

at Dannelly Field, Montgomery, Alabama, on February 5,

e

1954, when the accident made the basis of the suit oc-

curred, and described his status with the U. S. Air Force

as being that of a regular officer (R. p. 150).

The witness was asked to describe what regulations, if

any, the U. S. Air Force had concerning the type of pro-

ficiency flight by a guardsman connected with his Air

National Guard unit, such as the one on which Major

Daigneau was embarked on the occasion of the accident,

and replied that there were certain Air Force regulations

and agencies utilized in order to complete such a flight.

He said that, for example, the National Guard Bureau has

an agreement with the Air Force that it would direct the

State Guard unit to conform to certain safety flight regu-

lations and agencies of the Air Force at any time they are

participating in cross-country type flights (R. p. 153). In

describing the procedure employed by an Air National

Guardsman before embarking on a cross-country flight,

the witness stated that before he takes off he must first get

a clearance on a DD Form 175, with said clearance ema-

nating from Flight Service, which is a unit of the United

States Air Force (R. p. 154). He further admitted that

it was against United States Air Force regulations for a

cross-country flight to originate from Dannelly Field with-

out Flight Service clearance having been obtained (R. p.

156).

Upon being interrogated as to how the planes used by

the Air National Guard at Montgomery, Alabama, were

obtained, Colonel Waters stated that to the best of his

knowledge they were all loaned to the Air National Guard

by the United States Air Force (R. p. 157), and that the

Continental Air Command was charged with the responsi-

bility of inspecting the National Guard annually (R p.

158). He admitted that he made progress reports to

superior officers concerning whether or not the Alabama

Air National Guard was obtaining a certain efficiency in

ae ES

its training (R. p. 159). Upon being asked as to what

penalties, if any, were imposed on the Air National Guard

by the United States Air Force if training specifications

were not being met, the witness replied that the National

Guard Bureau has the right to witharaw Federal recogni-

tion entirely from a State Unit, in which event the bene-

fits that are derived by Federal recognition to an Air

National Guard Unit would be withdrawn (R. pp. 160-161):

Upon being questionad concerning the remuneration re-

ceived by Air National Guardsmen of flying status for the

time they spend flying, Colonel Waters answered that in

certifying the payroll for a guardsman a check is made to

ascertain that the man has properly qualified for flying

pay. Upon being asked what determines the qualifications

the flyer has to meet, he replied that the National Guard

Burean sets up the requirements which are contained in

their regulations (R. p. 163). He admitted that he certi-

fied as to compliance with these regulations by individuals

involved, after which the Guardsman ultimately received a

pay check from the United States Air Force at Dobbins

Field, mailed directly to the individual (R. p. 164). He

identified the requirements laid down regarding profi-

ciency flights by the National Guard Bureau to State Air

National Guardsmen as being primarily the same as those

required by Air Force personnel or,the Air Force regula-

tion concerning minimum proficiency (R. p. 164).

The testimony of Lt. Colonel Wm. M. Blatt was taken

by deposition and offered into evidence as the Plaintiffs’

Exhibit 5 (R. pp. 205 through 255). The deposition was

taken at the National Guard Bureau, Pentagon Building,

Washington, D. C., at which time Colonel Blatt identified

himself as being the Chief Legal Officer connected with

the National Guard Bureau, which he described as being

the channel of communications between the Departments

of the Army and the Air Force in the several states and

wee Yee

dealing with the military authorities of the several states

(R. pp. 207-208). He further explained that the National

_ Guard Bureau is composed of officers of the Army or Air

Force on active duty, and that the Bureau is primarily

concerned with the administration of the federally recog.

nized National Guard Units not in the active federal serv.

ice (R. pp. 210 and 211). (Emphasis supplied.)

Upon being questioned as to the status of an Air Na-

tional Guardsman in a State unit, Colonel Blatt stated that

under regulations promulgated by the Chief of the Na-

tional Guard Bureau, and approved by the Secretary of the

Air Force, in order to become a member of the Air Na-

tional Guard of the United States, an individual must first

be appointed as an officer in the National Guard of a State

by the Governor or other proper military authority, in ac-

cordance with the State Law as provided in the Constitu-

tion, whereupon, the State orders that officer before what

is known as a Federal Recognition Board which examines

the officer as to his qualifications, which said qualifications

are prescribed in Air National Guard regulations. He

stated that if the Federal Recognition Board finds the in-

dividual to be qualified, then a recommendation is made

to the Chief of the National Guard Burean that the indi-

vidual be granted Federal recognition. The Chief of the

National Guard Bureau concurrently advises the Secretary

of the Air Force that Federal recognition has been granted.

The Secretary of the Air Force then, upon ascertaining

that the man is in all respects qualified, will tender him an

appointment as a reserve of the U. S. Air Force in the same

grade in which he has been federally recognized. The in-

dividual then accepts that appointment and as of that mo-

ment he becomes a member of the Air Nationa! Guard of

the United States. In order to be a member of the Air

National Guard of the United States, as is provided in

the Armed Forces Reserve Act, an individual must be a

member of the federally recognized National Guard and be

a reserve of the U. S. Air Force in the same grade.

ee

The witness described such an individual who has com-

pleted all of the aforementioned steps as concurrently oc-

cupying a dual status, one as a member of the federally

recognized, organized militia of the state, and, secondly,

being a reserve officer of the U. S. Air Force, and stated

that by virtue of being a reserve officer of the U. S. Air

Force and in the federally recognized National Guard,

such an individual is“ member of the Air National Guard

of the United States (R. pp. 212-213). Further explaining

the status of an Air National Guardsman, Colonel Blatt

stated that in order to draw pay allowances, and to re-

ceive other benefits under Federal Law, he must first be

federally recognized by the National Guard Bureau, by

the Secretary of the Army or the Secretary of the Air

Force, acting through the Bureau (R. pp. 215-216).

The witness checked the records of the National Guard

Bureau on file in the Pentagon Building in Washington,

D. C., and found that special order No. 66, dated April,

1953, read: ä

By direction of the Secretary Air Force, announce-

ment is made of the extension of Federal recognition

to the following Air National Guard Officer in ‘the

grade, State, and on the date incicated, such officer

having qualified under § 74 and § 75, National Defense

Act, as amended.“ .

and then indicated that Major Stuart H. Daigneau was in-

eluded in said order along with other officers, and that the

date of Fedcral recognition was established as of 6 March,

1953 (R. p. 216). Further concerning the status of Major

Daigneau as a federally recognized Air National Guards-

man, the wit. v a stated that if he were performing duty

with or without pay as provided in the National Defense

Act and was injured in the line of duty, he would be en-

titled to the benefits provided by Public Law 108, 81st. Con-

gress, which states that he shall be in all respects entitled

Pea em

to receive the same pensions, compensation, death gratuity,

retirement pay, hospital benefits, and pay, and allowances,

as are now or may hereafter be provided by law and regu-

lation for officers and enlisted men of corresponding grade

and length of service of the regular Army. He stated this

was also applicable to the Air National Guard, and that

they would receive the same benefits which an officer of the

Regular Air Force would receive (R. pp. 216-217).

Again checking the record, Colonel Blatt read from a De-

partment of the Air Force letter Order M-813, dated 19

April, 1953, to the effect that on April 29, 1953, Stuart

Daigneau was promoted as a reserve of the Air Force in

the grade of Major, and was, therefore, from and after

19 April, 1953, a federally recognized Major, Air National

Guard and Major Reserve of the Air Force. He further

admitted that in this status in his training with the Ala-

hama Air National Guard, Major Daigneau was earning

retirement voints (R. pp. 220-221).

Under further examination the Chief Legal Officer for

the National Guard Bureau stated that the Bureau has regu-

lations which are handed down to the National Guard of

the respective States wih reference to its operation, answer-

ing that the general body of such regulations are known as

Air National Guard Regulations, and describing them as

being promulgated by authority of the Secretary of the Air

Force, and setting forth the conditions upon which pay is

to be received, medical benefits are to be received, the

handling of Federal property issued, and as generally re-

lating to the training of the Air National Guard (R. p.

222). Plaintiffs’ Exhibit 1 to the deposition of Colonel

Blatt was then introduced as containing a list of applicable

administrative publications which applied to the Air Na-

tional Guard in the various States. He stated that from his

personal knowledge of the regulations he knew they were

in force and effect, more or less, back in February of 1954,

ow 95 —

explaining, however, that they were changed from time to

time (R. p. 225).

Colonel Blatt was asked whether or not the National

Guard Bureau exercised any regulation or supervision, or

if it had any requirements concerning the rights to ad-

vancement of an Air National Guardsman in a State Unit,

to which he replied: Promotion of members of the fed-

erally recognized National Guard, or, rather, Federal recog-

nition of officers depends upon such things as time and

grade, completion of different types of advance training

and similar conditions which are imposed by Air National

Guard regulations, and similarly promotion as reserves of

the Air Force is likewise dependent upon regulations and

law, Federal’? (R. p. 230).

In response to the specific question:

„. Can the National Guard Bureau have anything

to do with the discharge or firing of an Alabama Air

National Guard!“

Colonel Blatt, the legal adviser and chief legal officer’ of

the National Guard Bureau, answered:

„A. The National Guard Bureau could, for the

causes enumerated, withdraw the recognition of a

member of the Alabama Air National Guard which

would terminate his rights to receive any benefits

under Federal law.

He then further described the regulations as being pro-

mulgated in the name of the Secretary of the Air Force,

and admitted that even though an Air National Guardsman

obtains an appointment from the State of Alabama, the

National Guard Bureau does have within its regulatory

processes the right to prevent him from getting on a pay

basis by the expedient of refusing to grant Federal recog-

8

nition to the individual, or if he already has such recog-

nition, by withdrawing it (R. p. 231).

Further describing the control of the National Guard

Bureau over the State Guard Units, Colonel Blatt stated

that there were numerous field inspections made by the

Air National Guard representatives, reports of same being

forwarded to the National Guard Bureau (R. p. 232).

The witness admitted also that fuel which is consumed

in the operation of an aircraft as authorized or provided

by Federal Law is provided by the United States Govern-

ment (R. p. 234).

At the conclusion of his testimony, Colonel Blatt stated

that at the time of the accident Major Daigneau was

recognized as a State Militiaman and also as an Air Force

Reserve Officer (R. p. 254). Specifically, he made the fol-

lowing statement concerning Major Daigneau:

„Since the records of the National Guard Bureau

indicate that the man had been given both Federal

recognition and had been appointed as a reserve of the

Air Force in the identical grade, we, of course, not only

considered him, but he was both a member of the

federally recognized Air National Guard and a re-

serve of the Air Force, neither of the statutes having

been terminated’’ (R. p. 254).

Another witness offered by the plaintiffs was Colonel

Louis P. Turner, U. 8. A. F., whose deposition was taken

at the Pentagon Headquarters of the National Guard

Bureau in Washington, D. O., and introduced at the trial

as a portion of Plaintiff's Exhibit No. 5 (R. pp. 256

through 296).

The position of Colonel Turner at the time of the taking

of his testimony was Executive Officer in the Air Force

8

Division of the National Guard Bureau (R. p. 257). From

records within his custody concerning the accident sued

upon and the status of Major Daigneau with the United

States Air Force on February 5, 1954, the witness testified:

From the records I have been able to review,

Major Daigneau was a federally recognized Air

National Guard Officer in the grade of a Major’’ (R.

p. 259).

Concerning the flight on which Major Daigneau was in-

volved when the accident occurred on February 5, 1954, the

witness stated that the records indicated he was on an in-

active duty training status with the 106 Tactical Recon-

naissance Squadron, and on the occasion made the basis

of the suit he was engaged in a training activity, with

the purpose of the training flight on which he was em-

barked being to prepare or to train the individual to per-

form a mission as a reserve of the Air Force in time of

emergency (R. pp. 259-260). (Emphasis supplied.)

In response to the question as to whether or not the

United States Air Force had an interest, in February of

1954, in the flying proficiency of Major Stuart Daigneau,

Colonel Turner stated that it did as a reserve of the Air

Force activity.

The witness, upon being questioned concerning the regu-

lations imposed by the Air Force upon the State Air Na-

tional Guard Units, identified them as being rules with

which the individual must comply to maintain his flight

status with the Air Force Reserve (R. p. 265).

Upon being asked about the fueling requirement of the

pieces of aircraft for use on training flights, upon such as

Major Daigneau was engaged on the occasion of the acci-

dent made the basis of the suit, Colonel Turner stated

that the fuel was furnished on contract, with the said con-

—. | —

tract being promulgated by the United States Air Force,

and the money incidental to payment for the fuel being

programmed by the National Guard Bureau and being al-

located by Congress for this purpose (R. p. 267).

Colonel Turner testitied that ne was familiar with the

fact that numerous regulations are set out and handed

down to the State Air National Guard Units, with the regu-

lations in some instances being promulgated by the United

States Air Force and made applicable to the Air National

Guard by the National Guard Bureau. He described a DD

Form 175 as being a clearance form which Major Daigneau

had to get from someone connected with the Air Force

before he could take off from the field at Montgomery (R.

pp. 270-271).

Colonel Turner was specifically asked:

„L. At the time of Major Daigneau's accident was

there a provision or regulation of the Air National

Guard in force and effect concerning discharge of

officer personnel?’’,

to which he replied:

A. Yes, there was.“

He was then asked:

„L. Did this regulation apply to him on the occa-

sion of Major Daignean’ s accident?’’,

to which the witness answered:

„A. Yes, it did.“

The regulation in question, namely, ANGR 36-05, dat-

22 September, 1953, was then introduced into evidence as

Plaintiffs’ Exhibit No. 8 to the deposition of Colonel Tur-

ner (R. p. 279).

— | 5

8

Colonel Turner was questioned concerning regulations

involving the termination, withdrawal or revocation of

Federal recognition of office personnel in force and effect

Nat the time of the occurrence of the accident made the

kasis of the suit and these were made available as exhibits

for the court’s inspection. They are illustrative of the

vast amount of supervision, control, and regulation im-

posed on a State Air National Guardsman by the Federal

Government on a routine proficiency flight, such as that

upon which Major Daigneau was engaged at the time of

the accident involved in this litigation.

_ Captain Henry Fillingim was presented at the trial by

the defendant (R. pp. 60 through 82, and 106 through 121).

He identified himself as being Flight Training Supervisor

with the 160th Tactical Reconnaissance Squadron at Mont-

gomery, Alabama, and as having held the position on

February 5, 1954, of Assistant Operations Officer for his

squadron, which is a part of the Alabama Air National

Guard (R. pp. 60-61). He stated that at that time the

orders came from the 117th Tactical Group and their

orders came from the 117th Tactical Wing, whose orders

came from the State Military Department, and the military

orders came from the National Guard Bureau (R. p. 61).

(Emphasis supplied.) More specifically, he stated that the

orders received by the Alabama Air National Guard came

from the National Guard Bureau located in Washington,

D. C. (R. p. 62). He admitted that these orders had refer-

ence to the training of Guard personnel, such as Major

Daigneau (R. p. 63).

Captain Fillingim, upon being questioned as to what he

had to do, if anything, with Major Daigneau's proficiency

flight, answered that he was one of what was called

“instructor pilots’? with the squadron, and checked out

the people and the type of aircraft they had. He stated

that he had not himself checked out Major Daignean, but

ang HR sis

that this had been done by Major Hamby, who was with

Squadron Operations at that time (R. p. 64). He identified

both himself and Major Hamby as being United States Air

Force Officers in the Reserve, and admitted that the pay

received by both of them came from the Dobbins Air Force

Base in Georgia, and that they glso got a check from

Maxwell Field from the Air Force (R. p. 65). Upon being

asked what control or supervision, if any, Major Hamby

had over Major Daigneau on February 5, 1954, the witness

answered that he was the operations officer and was in

charge of flying training of the squadron, and that he,

Captain Fillingim, was Major Hamby’s assistant (R. p. 65).

Upon being asked to explain to the Court the procedure

employed by Major Daigneau in getting the plane in

Montgomery and flying to Birmingham on the occasion of

the accident, the witness replied that Major Daigneau re-

quested the airplane from Major Hamby, who was the

operations officer, and that he, in turn, approved the flight

(R. p. 66). He further described Major Daigneau as

having to obtain flight clearance through the Military

Flight Service, with the center for this area being located

at Maxwell Field, and admitted that this was not true

with respect to a civilian plane leaving Dannelly Field

(R. pp. 66-67). Further explaining flight clearance pro-

cedure for Major Daigneau, the witness stated that after

he landed he would return his flight clearance to Opera-

tions, and that they would close the flight plan with Mili-

tary Flight Service. He stated that the Base of Opera-

tions, in turn, notified Flight Service that he is landed and

on the ground at that installation. He further testified:

„In other words, we wash control of him then (R. pp.

67-68). (Emphasis supplied.)

The witness stated that Major Daigneau, on February 5,

1954, occupied a dual role as United States Air Force Re-

serve Officer, as well as an Alabama National Guardsman

2

os 99

(R. p. 68). In response to interrogation on the subject, the

witness admitted that in his training of officers in the

_ eategory of Major Daignean on the occasion of the acci-

dent on February 5, 1954, that he, as an Army Air Force

Reserve Officer, paid to train Major Daigneau, was fur-

nished with numerous regulations to which Major Daig-

neau was subjected, and that these regulations came down

through Military channels from the National Guard Bureau

and from.the United States Air Force (R. pp. 72-73).

In reply to a question from the Court:

From whom do the personne! in Alabama National

Guard get their orders as to where they must be or

what they must do or where they should go?“

the witness answered:

„They get them from the Guard Bureau and they

come down through channels“ (R. pp. 115-116).

He then explained that the Guard Bureau to which he

referred was the agency in Washington known as the

National Guard Bureau (R. p. 117).

Major Daigneau was called by the defendant during the

course of the trial and identified himself as the pilot in-

volved in the accident on February 5, 1954, which oc-

curred at the Birmingham Municipal Airport while he was

flying an F-51 airplane, and while he was attached to the

117th Tactical Wing of the Alabama Air National Guard.

He stated that his purpose in making the flight in which

he was engaged at the time of the accident was for profi-

ciency (R. p. 85).

On cross-examination the witness stated that before he

became a member of the Alabama Air National Guard he

was given a physical examination at the Maxwell Air Force

—2— —

Base in Montgomery by flight surgeons connected with the

U. S. Air Force (R. p. 90). He admitted that before he

got his clearance to take off from Dannelly Field it had to

be cleared through Flight Service at Maxwell Field (R. p.

91). He stated that bis pay checks for service in the Na-

tional Guard came from Dobbins Air Force Base in the

form of a Federal Government check (R. p. 92). Upon

being asked what connection, if any, the Continental Air

Command had with the proficiency training of pilots in his

status in 1954, he replied that they had an Air National

Guard regulation which lists the required minimums for

proficiency flying which he had to meet to maintain his

rating (R. p. 92).

The witness was asked about his experience in flying the

F.-51 prior to the accident on February 5, 1954, and indi-

cated he had flown this type of aircraft ten or fifteen hours

concentrated in four or five flights, and that his checkup

was under the supervision of training personnel at Dan-

nelly Field in the category of Captain Fillingim (K. pp. 93-

94). He further stated that he was required to study tech-

nical orders before he was checked out in the F-51 and

that these were contained in an Air Force Manual. He

also stated that all of the regulations issued to him as a

member of the Air National Guard came directly from the

Air National Guard or from the National Guard Bureau

(R. p. 95).

The remainder of the testimony adduced at the trial was

in the form of exhibits which are either included in the

record or covered by the order of the Court, dated April

24, 1956, transmitting the original exhibits to the Appel-

late Court (R. p. 313). These papers include numerous reg-

ulations of the Air National Guard Bureau and the Air

Force concerning National Guardsmen. In short, the evi-

dence shows without dispute that every movement of Major

Daigneau on the occasion of the accident made the basis

yar oe

of the suit was controlled and regulated either by the Na-

tional Guard Bureau or the U. 8. Air Force through the

medium of supervisery personnel and written regulations.

His pay came from the Federal Government, anu the right

to withdraw Federal recognition retained by the United

States was shown by the evidence as being tantamount to

the right to discharge the guardsman inasmuch as the

withdrawal of the Federal recognition would have the ef-

fect of taking him off of the pay status.

F. —

REASONS RELIED ON FOR THE ALLOWANCE

OF A WRIT.

The question as to whether or not under all the circum-

stances the United States can escape liability for the acts

of a National Guardsman by merely showing that on the

oceasion of the accident complained of he was not in the

“active service” of some branch of the Armed Forces has

never been passed upon by this Court. To our knowledge,

the instant case and that of United States v. Prager, as yet

unreported, but also decided by the Court of Appeals for

the Fifth Circuit on January 9, 1958, and presently before

this Court on petition for writ of certiorari, are the only

instances wherein the plaintiffs during the course of the

trial in the District Court introduced evidence showing

supervision and contro] over the National Guardsman, such

as would be sufficient to hold a private individual respon-

sible for his conduct under the rules of respondeat superior

obtaining in the particular State where the accident oc-

curred. All cases previously decided appear to be ones

wherein motions for summary judgment were granted to

the United States on a showing that at the time of the ac-

cident the guardsman involved was not “in the active serv-

ice” of the United States.

i Soe

There is, of course, no presumption of agency which

arises against the United States in such cases, and without

proof of the supervision and control over the guardsman,

as was shown in the instant case and in the Prager suit,

the tribunals which have tried such cases in the past were

entitled to make such rulings against the plaintiff who

sued. It is our thought, however, that this has caused a

misconception of the law to be engrafted upon the Federal

Tort Claims Act which now threatens to establish an ex-

ception to the rule of liberal construction approved by this

Court in United States v. Yellow Cab, 340 U. S. 543, 95

L. Ed. 523. It is submitted that a question of substantial

importance involving a Federal Statute remains unan-

swered and only this Court can put finally to rest the con-

jecture as to whether it is possible or not by a showing of

control and supervision to hold the United States liable

under the Federal Tort Claims Act for the wrongdoing of

its guardsman who on the oceasion complained of is not in

the active service.

Colonel Blatt, the legal officer for the National Guard

Burean, testified that under Public Law 179 of the 88rd

Congress there was appropriated for the Air National

Guard alone a total sum of $147,100,000.00 for the fiscal

vear ending June 50, 1954 (R. p. 256). We do not have

figures which indieate the scope of the entire National

inard program, inclading the ground forces but we are

sure this Court will take judicial recognition of the fact

that it is tremendous, and further that virtually all of the

cost of the same is borne by the Federal Government. It

is of impelling urgency that this Court more clearly desig-

nate the extent and manner in which liability under the

Federal Tort Claims Act can be imposed on the United

States for injury and damage caused to citizens of this

country by prosecution of the National Guard movement.

Chief Judge Biggs, speaking for the Third Circuit, in

the case of O’Tooi et al. v. United States, observed:

3

“We think that if a private individual or organiza-

tion in Delaware had possessed the degree of control

over Harrington in the M-4 tractor—as to employment

and discharge, discipline, direction and ownership—

which has been given by Statute to Federal authority,

there could be no question but that the individual or

organization would be held responsible for any tort

committed by Harrington in driving the tractor.”

In the O'Toole case it was ruled that Harrington was

an employee of the United States within the purview of

the Federal Tort Claims Act, with the Court pointing out

that the guard for the District of Columbia, of which Har-

rington was a member, has a little different setup from the

situation that obtains with reference to the National Guard

Units in the various States. The Court, in its opinion, how-

ever, stated:

“Our holding rests upon the degree of supervision

and control exercised over the District Guard in peace

time by Federal authorities.”

We submit that the rationale of the O’Toole case is of

such nature as to constitute a divergence of opinion and a

conflict with the decisions of the Court of Appeals for the

Fifth Circuit, and sufficient basis is thereby accorded for

review by this Court.

During the brief history of che Federal Tort Claims Act

there has heen, at least in the early years of its existence,

a tug of war between the various courts writing on the sub-

ject as to whether the Act should be liberally or strictly

construed. By its decision in United States v. Yellow Cab

Company, this court has now firmly established the propo-

sition that the Federal Tort Claims Act is to be interpreted

in such a manner as to give real effect to the. purposes

and intendments of the Act designed to relieve the harsh

rule of governmental immunity. The disposition to expand

31

the coverage of the Act and to cireumscribe its limiting

exceptions is further reflected in United States v. Union

Trust Company, 350 U. S. 907, 76 Sup. Ct. 192. It is sub-

mitted that if this Court allows the judgments of the

Circuit Court of Appeals for the Fifth Circuit in the in-

stant case and in United States v. Prager and the au-

thorities followed therein to stand up, a withdrawal of the

recognized purpose of the Federal Tort Claims Act will

have been accomplished and the general trend towards

increasing the scope of the waiver by the United States

of its sovereign immunity from suit will have been ter.

minated. As was said by the Court in United States v. Tel.

low Cab Company, supra:

It is inconsistent to whittle it (Federal Tort Claims

Act) by refinements.“

In determining liability under the Federal Tort Claims

Act the responsibility of the United States must be meas-

ured by the same rule of respondeat superior as would

apply to a private person in the State where the accident

sued upon occurred. Such appears to be the conclusion of

the Supreme Court in Williams v. United States, 350 U. S.

857, 76 Sup. Ct. 100, in which the reach and effect of the

Act was extended in keeping with the attitude of the

Court expressed in the Yellow Cab case. In Williams v.

United States, supra, this Court vacated the judgment of

the Court of Appeals for the Ninth Circuit, and remanded

the case with instructions to apply as controlling the Cali-

fornia doctrine of respondeat superior.

In United States v. Union Trust Company, supra, it was

pointed out that the Government has waived its immunity

with respect to the acts and omissions of members of the

Armed Forces while on or off active duty, so us to be

liable for their acts and omissions to the same extent that

private employers are held responsible under the State

law for the acts and omissions of their employees, and that

8

this immunity is not defeated merely because of the pres-

ence or absence of identical private activity as the broad

and just purpose of the Act is to compensate victims of

‘negligence in the conduct of governmental activities in cir-

cumstances like unto those in which private persons would

be liable. It was suggested that the substantive law of lia-

bility would be furnished primarily. by Texas decisions inas-

much as the accident sued upon occurred in Houston, Texas.

See, also, Massachusetts Bonding & Insurance Company v.

United States, 352 U. S. 128, 1 L. Ed. (2) 189, 77 Sup. Ct.

186; Rayonier, Inc., v. United States, 352 U. S. 315, 1 L.

Ed. (2d) 354, 77 Sup. Ct. 374; Williams v. United States,

350 U. S. 857, 100 L. Ed. 761, 76 Sup. Ct. 100; and The

Indian Towing Company v. United States, 350 U. S. 61

100 L. Ed. 48, 76 Sup. Ct. 122.

As it is obvious by the very terms of the Statute itself

and the controlling decisions of this Court hereinabove

enumerated that the liability of the United States ia to be

determined in the manner and to the same extent as a pri-

vate individual under like circumstances, we advert to the

law of agency in the State of Alabama where the accident -

made the basis of the instant suit occurred. The test for

the determination of Whose employee“ is outlined by

the Supreme Court of Alabama in U. 8. Steel Corporation

v. Mathews, 261 Ala. 120, 73 So. (2d) 239, by calling for

an answer to the question:

Whose work was the servant doing, and under

whose control was he doing it!?“ * * It is the reserved

right of control rather than its actual exercise that

furnished the true test of relationship. He is the

master who has the supreme choice, control and dirce-

tion of the servant, whose will the servant represents

in the ultimate result and in all its details.“

In Moore-Handley Hardware Company v. Williams, 238

Ala. 189, 189 So. 757, the Supreme Court of Alabama stated:

8

„We have recently approved the statement of the

general rule of common law that the relationship of

master and servant exists whenever the employer re-

tains the right to direct the manner in which the busi-

ness shall be done, as well as the result to be accom. |

plished, and that such relationship exists where the

master has ‘choice, control and direction’ over the

servant, who represents or acis for the master, not

only in the ultimate resuit of the work, but in all its

details. Ex parte Board of School Commissioners of

Mobile County, 235 Ala. 82, 178 So. 63. Like expres-

sions are found in Birmingham Post Company v.

Sturgeon, 227 Ala. 162, 149 So. 74, where is also ap-

proved the statement that ‘the essential test by which

to determine whether in doubtful cases the relation

between a workman and those for whom he was ren-

dering service was that of an employee or an inde-

pendent contractor, was not so much dependent upon

whether he received wages or whether he was to

devote all or a_portion-of his time to the performance

of his specified service, but was rather dependent upon

the extent of control or right of control which the so-

called employer was to exercise over its so-called

employee.’ (Emphasis supplied.)

And our Court is ec mmitted to the proposition that

it is the reserved right of control rather than its

actual exereise that furnishes the true test of whether

the relation between the parties is that of an indepen-

dent contractor or „f employer and employee—mas-

ter and servant.“

Examination of the facts in the Moore-Handley Hard-

ware Company v. Williams’ case, supra, discloses the fol-

lowing circumstances existed:

(1) The defendant conducted a school each morning

when the salesmen were given very definite instructions. as

to their work.

8

(2) The defendant had the right to discharge McClinton,

the alleged servant, at any time it saw fit. (A circumstance

to be considered = ~Martin v. Republic Steel Company, 226

Ala. 209, 146 So. 276.) And McClinton fully recognized

defendant’s right to make suggestions and requests which

he sought to carry out.

(3) Defendant knew he was using an automobile, and

McClinton says they preferred the salesmen use cars, as

they could get about better and produce more business.

(4) McClinton was also required to serve one day each

week as floor salesman at defendant’s place of business,

and it was while he was so serving he met Hotchkiss, a

customer of defendant, which meeting resulted in making

a sale of a radio, and to whose home McClinton was going

to close the trade when the accident occurred.

Let us paraphrase and consider in the instant case the

defendant United States as being Moore-Handley Hard-

ware Company and the Alabama Air National Guard pilot,

Major Stuart Daigneau, as being the salesman McClinton,

referred to in Moore-Handley Hardware Company v. Wil-

liams, supra.

(1) Major Daigneau, after becoming an Air National

Guardsman, was sent to a school conducted by the United

States Air Force for three and one-half months (R. p. 102).

(2) The National Guard Bureau had the right to with-

draw Daigneau’s Federal recognition at any time it saw

fit, thereby terminating his eligibility for any benefits

available to him either as a National Guardsman or as a

Reserve Air Force Officer, the said withdrawal of recogni-

tion being tantamount in its effect to his being discharged

from the National Guard.

(3) The United States Air Force and the National Guard

Bureau knew that Daigneau was using the airplane which

3

he was attempting to land when the aceident made the

basis of the suit occurred. Not only did these Federal

Agencies know of his use of the F-51, but a flight service

of the Air Force gave him the clearance, without which

he could not have removed the plane from Dannelly Field,

Montgomery, and both the National Guard Bureau and

the United States Air Force prescribed numerous regula-

tions concerning his use of the aircraft, as well as provid-

ing the fuel for same.

(4) Daigneau was required by the National Guard

Bureau to make routine training flights, such as the one

on which he was engaged at the time of the accident made

the basis of the suit, in order to maintain a proficiency

rating, in the absence of which his right to flying pay

would have been terminated and his status as a federally .

recognized guardsman withdrawn.

„The maxim of respondeat superior,“ said Lord Chief

Justice Best in Hall v. Smith, 2 Bing. 150, 130 English Re-

prints 265, ‘‘is bottomed on the principle that he who

expects to derive advantage from an act which is done by

another for him must answer for any injury a third per-

son may sustain from it.“ It is thus generally accepted

as law in Alabama that where a person does an act for

the benefit of another, and under circumstances where he

is subject to the control and direction of the person whose

mission is being accomplished then the beneficiary and the

person in whom the right of Supervision and control is

vested can be held legally responsible to third persons for

injuries caysed by the negligence of the actor carrying

out the pw nie of the person benefited, and in whom the

right of control is reserved. Colonel Turner, the executive

officer in the Air Force Division of the National Guard

Bureau, whose deposition was read at the trial, described

Major Daigneau on the occasion of the accident on Feb-

ruary 5, 1954, as being engaged in a training activity, with

ous 3 ans

the purpose of the training flight on which he was em-

barked being to prepare or train the individual to perform

a mission as a reserve of the Air Force in time of emer-

gency (R. pp. 259-260).

It cannot be disputed but that Major Daigneau, be he

Alabama National Guardsman or United States Air Force

Reserve at the time of the accident, was acting for the

benefit of the Federal Government and subject in large

measure to its direction, supervision and control.

In the trial of the case an avalanche of testimony was

offered concerning the numerous rules and regulations

imposed by the National Guard Bureau, a Federal Agency

located in the Pentagon Building, Washington, D. C., on

the Alabama Air National Guard Unit, to which Major

Daigneau belonged, and also upon Major Daigneau in-

dividually. Undisputed proof was made in abundance that

every move of the Alabama Air National Guard in the

handling of its equipment, in its training of personnel,

and the use of the equipment is spelled out in minute detail

in the regulations furnished by the United States to the

Guard Unit, to which Major Daigneau belonged, by the

National Guard Bureau. Everything done by Major Daig-

neau on the occasion of the flight in which the accident

giving rise to this litigation occurred had to be done

exactly ‘‘by the book“ not only as to what was done, but

as to the details and as to the manner and method of the

accomplishment of the details.

The Code sections under Title 32, U. S. C. A., appended

to this petition as Appendix 2 specify a control over the

Alabama Air National Guard and Major Daigneau in his

eapacity as a member of the same in a manner and degree

_ which cannot be denied. § 4 B (a) specifically includes all

federally recognized members of the National Guard,

even though inactive as coming within the purview of

=

Title 32, U. 8. C. A., and the controls imposed therein.

How then can it be argued that the United States should

not be responsible for the damage caused by the negligence

of Major Daigneau on the occasion complained of under

the rule of respondeat superior prevailing in the law of

Aiabama, when he was completely dominated in his every

movement by the National Guard Bureau, . Federal

Agency, and when his every act was subject to the provi-

sions of Title 32 of the United States Code Annotated?

It would unduly lengthen this petition and further

burden the Court again to recite the many instances of

supervision, direction and control over Major Daignean

by the United States through the National Guard Bureau

on the occasion of the accident made the basis of the suit.

- Suffice it to say that they are manifold in number and

appear frequently and continuously throughout the record

in the testimony of all of the witnesses which appears

therein, as well as in the form of the regulations of the

United States Air Force and the National Guard Bureau.

under which Major Daigneau had to operate. Coupled

with the Federal Statutes set out in Titis 32, U. 8. C. A.

which the District Court should have judicially recognized,

and the facts which were undisputed on the trial, it is

crystal clear that according to the Alabama interpretation

of the law of agency, Major Daignean, in the occasion

complained of, was obviously an employee of the United

States of America so as to impute and charge liability

to the defendant according to the spirit and tenor of the

Federal Tort Claims Act. From a practical standpoint,

no experienced and efficient trial lawyer would ever at-

tempt, in Alabama and under the law of that State, to

which are necessary to *

of his Servant under the Aisbama version of the dectri

of respondeat superior were present in the relationship

To summarize:

(1) The United States owned the aircraft piloted uy

Major Daigneau;

(2) The United States supplied the fuel for the

operation of said aircraft;

(3) Major Daignean had to pass a physica! exam-

ination given by an Air Force Surgeon before his en-

trance into the National Guard;

(4) His training as a pilot in the Alabama Air Na:

tional Guard, Major Daigneau was sent to United

States Air Force schools at the expense of the Federa

Government, and he was trained under the command

of Air Force Officers:

(5) On the oceasion of the accident Major Daigneau

was occupying the dual status of an Alabama Air Na-

tional Guardsman and an Air Force Reserve Officer,

subject to the chain of command above him in both

organizations;

(6) Major Daignean was subject to being “fired” by

the National Guard Bureau, by withdrawal of Fed-

eral recognition:

(7) On the occasion of the flight during which the

accident occurred, Major Daigneau was engaged in

proficiency training required by the United States

through the National Guard Bureau:

(8) The training of Major Daigneau which was

being accomplished on the occasion of the accident

was for the benefit of the United States, in making him

& more experienced and competent pilot for the Na-

tional defense of this rountry; ö

eh was:

(9) Before leaving Montgomery, Alabama, on the

occasion of the hecident, Major Daigneau was required

to obtain clearance from Flight Service at Maxwell

Field, an Air Force installation;

(10) In order to be eligible for flying pay, Major

Daigneau had to engage upon proficiency flights, such

as the one upon which he was embarked on the oc-

casion of the accident made the basis of the suit;

(11) The pay received by Major Daigneau as an

Alabama Air National Guardsman came to him from

the United States, in the form of vouchers from an

Air Force Installation at Dobbins Field, Georgia;

(12) On the occasion of the accident made the basis

of the suit Major Daigneau, in his capacity as a mem-

ber of the National Guard Bureau, was entitled to all

the retirement and disability benefits provided for

regular United States Air Force Officers of the same

grade.

The Supreme Court of the United States has in United

States v. Yellow Cab Company, supra, committed itself

that the Federal Tort Claims Act should receive a liberal

construction to enforce its benevolent purpose, and should

not be emasculated by rigid interpretation.

In Williams v. United States, su, ra, and the other cases

herein mentioned, the Court has held that in determining

liability under the Federal Tort Claims Act, the responsi-

bility of the United States must be measured by the same

rules of the doctrine of respondeat superior as would apply

to a private person in the State where the accident sued

upon oceurred.. We have asked simply that the sovereign

immunity of the Federal Government be waived in the

instant case an the framers of the Federal Tort Claims Act

intended, and that the law of Alabama as it applies t

private individuals be allowed to rule.

8

The Distriet Judge found that on the occasion of the acci-

dent giving rise to the case at bar that it might be inferred

from the evidence that the proximate cause of the accident

was the negligence of the pilot of the F-51 (R. p. 308).

Both the District Court and the Court of Appeals, there-

fore, base their holding of non-liability on the part of the

United States to the petitioners in this case solely on the

finding that at the time of the accident in question the

Alabama Air National Guard Unit, of which Major Daig-

neat was a member, had not been called into the active

Federal service. We sek here to determine if such a harsh

application of the Federal. Tort Claims Act is to be con-

doned in instances where the undisputed proof shows that

on the occasion of the accident sued for a National Guards-

man, although not in the active service of the United

States, is supervised and controlled by the Federal Govern-

ment to the extent that the United States; if a private citi-

zen, would he responsible for his acts.

Without meaning to he presumptuous, we feel that the

Court of Appeals for the Fifth Cireuit which so earnestly

considered the question on the appeal below has, in the

closing paragraph of its opinion, invited a review by this

Court.

5

Wherefore, vour petitioners pray that a Writ of Certio-

rari be issued out of and under the seal of this Honorable

Court, directed to the United States Court of Appeals for

‘the Fifth Cireuit, commanding that Court to certify and to

send to this Court for its review and determination a full

and complete transcript of the record and all proceedings

in case numbered and entitled on its docket, No. 16,679,

Storer Broadcasting Company, Detroit Fire & Marine In-

surance Company and Associated Aviation Underwriters,

Appellants, v. United States of America, Appellee, and that

the said judgment of the United States Court of Appeals

for the Fifth Circuit may be reversed by this Honorable

Court, and that your petitioners may have such other and

further relief as to this Honorable Court may seem meet

and just, and your petitioners will ever pray.

Respectfully submitted,

STORER BROADCASTING COMPANY,

DETROIT FIRE & MARINE INSUR. -

ANCE COMPANY and ASSOCIATED

AVIATION UNDERWRITERS,

JAMES E. CLARK and

LONDON, YANCEY, CLARK and ALLEN,

1103 Comer Building,

Birmingham 3, Alabama,

Of Counsel.

I hereby certify that a copy of the foregoing Petition for

Writ of Certiorari has been served upon Counsel for the

Respondent by mailing copies of the same, United States

postage prepaid, to Honorable George Cochran Doub,

Assistant Attorney General, Civil Division, United States

Department of Justice, Washington, D. C., and Honorable

W. I. Loagshore, United States Attorney, United States

Distriet Court for the Northern District of Alabama, Bir-

mingham, Alabama.

This the . day of March, 1958.

oR

APPENDIX 4.

The Opinion Sought to Be Reviewed.

In the |

United States Court of Appeals

For the Fifth Cireuit.

No. 16679.

Storer Broadcasting Company, Detroit Fire & Marine

Insurance Company and Ausuciated

Aviation Underwriters,

Appellants,

versus

United States of America,

Appellee.

Appeal from the United States District Court for the

Northern District of Alabama.

(January 9, 1958.)

Before Rives, Jones and Brown, Circuit Judges.

Per Curiam: The only question presented by this ap-

peal is whether a member of the National Guard of a

State, who is not a caretaker, and who has not been

called to active service of the United States is an em-

ployee of the government“ within the meaning of the

Federal Tort Claims Act.? This Court is firmly com-

mitted to answer that question in the negative.“ The

Dover vy. United States, Sth Cir. 1951, 192 F. 2d 431: McCraine

‘ Cir. 1952, 199 F. 2d S81; Slagle v. United

States, Sth Cir. 1957, 243 F. 2d 404.

all

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an excellant record and now ask this Court to re-ex-

amine the question, insisting especially that in view of

United States v. Yellow Cab Oo., 340 U. S. 543, a more

_fiberal construction of the Act is now required.“ If a

proposition so firmly established is to be changed, we

think that should be done only by the Supreme Court,

and that we should abide by our former decisions.

The judgment is therefore

Affirmed.

A like insistence, also on a well-developed record and excellent

* is presented in United States v. Prager, No. 16.478. decided

this day.

1

APPENDIX ‘‘B.’’

Resume of Statutes Involved, But Not Set Out

in the Petition.

Title 32, U. S. C. A., Chapter 1, relates to the composi-

tion, organization and control generally of the Guard by

the Federal Government, and, under §4-B, defines the

National Guard as meaning that portion of the Organized

Militia of the several States, Territories and the District of

Columbia, active and inactive, federally recognized as pro-

vided in the Act, and organized, armed, and equipped in

whole or in part at Federal expense and officered and

trained under paragraph 16, section 8, article 1 of the

Const.tution.

§ 5 of Chapter 1 provides for the organization of the in-

dividual tactical units of the National Guard, and sets

forth that the President may prescribe the particular unit

or units, as to branch or arm of service, to be maintained

in each State.

56 of Chapter 1 sets up the location of units and head.

quarters.

§7 of Chapter 1 provides the method by which the loca

tion and designation of units of the National Guard com-

prised entirely within the limits of any State shall be

determined by means of a Boatd of Commission.

{8 of Chapter 1 provides that the President of the

United States may assign the National Guard of the several

States and Territories to divisions, brigades, and other

tactical units, and may detail officers either from the Na-

tional Guard or the Regular Army to command such units.

$15 of Chapter 1 provides for an annual inspeetion by

inspector generals and officers of the Regular Army to

be made of the National Guard to determine whether the

amount and condition of the property in the hands of the

Naticnal Guard is satisfactory, whether the National

„ peek

Guard is organized as prescribed by the sections enume-

rated, whether the officers and men possess the physical and

other qualifications prescribed, and whether they are suffi-

ciently armed, uniformed, equipped, and being trained and

instructed for active duty in the field, and whether the

records are being kept in accordance with the require-

ments of the Federal Law. This section also provides that

the reports of the inspectors shall serve as a basis for de-

ciding the issue as to the retention by the National Guard

of the military property provided by law for their use,

and determining what organizations and individuals shall

he considered as constituting a part of the National Guard

within the meaning of the Federal Statute.

$16 of Chapter 1 provides that no organization of the

National Guard, members of which have received compen-

sation under the provisions of the Federal Law shall be

disbanded without the consent of the President, nor shall

the strength of such an organization be reduced beiow the

minimum that shall be prescribed by the President.

§17 of Chapter 1 provides that ‘‘The President shall

make all necessary rules and regulations and issue such

orders as may be necessary for the thorough organization,

discipline, and government of the militia provided for in

this title.“ (Emphasis supplied.)

3 Chapter 2 of Title 32, U. S. C. A., provides for the funds

for the support of the National Guard. ;

§ 24 of Chapter 2 provides that in the event any State

refuses to comply with or enforce any requirement of the

Federal Law, of any regulation promulgated thereunder

and in aid thereof by the President or the Secretary of

the Army, the National Guard of such State shall be de-

barred, wholly or in part, as the President may direct,

from receiving any pecuniary or other aid, benefit, or

privilege authorized or provided by the law. (Emphasis

supplied.)

083

Chapter 3, Title 32, U. C. C. A., covers armament, equip-

ment und supplies of the National Guard and prescribes

in detail just how the arms, equipment and Supplies shall

be handled, and how their use shall be reported upon.

§ 31 of Chapter 3 provides that the National Guard shall

as far as practicable, be uniformed, armed, and equipped

with the same type of uniforms, arms, and equipments as

are or shall be provided for the Regular Army.

Chapter 4, Title 32, U. S. C. A,, deals with instructions,

training and discipline of the National Guard. ö

§61 of Chapter 4 specifies that the discipline of the

National Guard (which includes training) shall conform

to the system which is or may be prescribed for the Regu-

lar Army, and the training shall be carried out by the sev-

eral States, Territories, and the District of Columbia so

as to conform to the provisions of the title.

§ 64 of Chapter 4 makes provision for assemblages for

instruction of officers and enlisted men. It is stipulated

that under such regulations as the President may pre-

scribe, the Secretary of the Army may provide for a-

semblages of officers, warrant officers, and enlisted men of

the National Guard for the purpose of attending schools

to be conducted by officers of the Regular Army detailed

by the Secretary of the Army for that purpose.“

§ 66 of Chapter 4 provides that for instruction of the

National Guard, the President shall assign such number of

officers of the Regular Army as he may deem necessary;

also such number of enlisted men of the Regular Army for

duty in the instruction of the National Guard as may be

deemed necessary.

Chapter 7, Title 32, U. S. C. A., deals with commissioned

officers of the National Gaard.

§ 111 of Chapter 7 specifies the qualifications for officers

of the National Guard and sets up that they shall not be

recognized as officers of the National Guard unless they are

sane A ses

selected from the classes designated and shall have taken

the oath prescribed in § 112.

§112 of Chapter 7 specifies the oath required ef com-

missioned officers, and states in part: I do solemnly swear

© * * that I will obey the orders of the President of the

- United States :

§113 of Chapter 7 provides for the examinations of offi-

cers desiring commissions and specifies that the provisions

of the Title shall not apnly to any person appointed an

officer of the National Guard unless he first shall have suc-

cessfully passed such tests as to his physical, moral, and

professional fitness_as the President shall prescribe. It fur-

ther provides that the examination for qualification shall be

conducted by a board of three commissioned officers ap-

pointed by the Secretary of the Army from the Kegular

Army or the National Guard of the United States, or both.

It also provides that the examination must be held prior

to the original appointment.

§ 114 of Chapter 7 provides for the elimination and dis-

position of officers of the National Guard of the United

States, and states that when Federal recognition is with-

drawn from any officer ax provided for in § 115, which fol-

lows, he shall then cease to be a member of the National

Guard of the United States, and shall be given a discharge

certificate.

§115 of Chapter, 7 provides for the withdrawal of Fed-

eral recognition and sets up the method by which it may be

accomplished.

Chapter 10, Title 32. U.S. C. A., provides for pay and

allowances for both officers and enlisted men in the Na-

tional Guard.

Chapter 11, Title 32. U. S. (C. A., provides for the estab-

lishment of the National Guard Burean, to which the Pres-

ident shall assign such officers of the Regular Army for

duty as he may deem necessary. ‘ é