Petition for Writ of Certiorari — Chapin v. United States

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§ ; e oo JAN 1 4 195%

IN THE

|: _Augreme Court of of the United tates vam Lass —

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Tiitopore’ J. Ciaran and ApamM Sypirk

Petitioners,

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ae Unirep STATES 01

> AMER “A,

Respondent.

Petition for Writ ‘of, Cerdareel ‘to he United States

Court of Appeals for ~ Ninth Circuit.’

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Louis R.- BAKER, ;

” 403. West Eighth Street,

Losxfiveles 14,. California

Counsel for Petitioners Fheodore J... |: ee:

‘Chapin and sldam Sydlik. ’ =

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BAKER & Ascii.

ix G. ANCEL,

| Te oMAS .D. Grierty,

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~~“ SUBJECT INDEX ‘\ ,

{ a . PAGE

Opinions below eee i csaccinnsbnnleintensainnitn sete - 2

" Matement of the —_—. _on_ which _the-. jurisdi@fon “ot das |

ie court Si lata dcdiain Gite toncick i iininicai 2

=(Juestions Presented for review,.........-.. Vee PL Oe RE

First: question ....... oT a aa sheila a Anne | - < 3

Second IE i ciectcaciniibs eadle Raee a Stes! Pee: i

Third question eS saad sibesbbanpcaties NESS Seen eee patie 3

Fourth question cheesiest hails aadagonsiticinnatenene

Sebdnent ‘it he I croicsistleiiaschsedetsdcasecstadecscvastapdsusabisdiana deasleplas ihacsisieiebicinil 4

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ee eee ee ee ee eee ee eee

’ The Court of Appeals has rendered a decision in conflict with

"the decisions of other circuits and with the decisions of the. .

» . Ninth Circuit itself in casés which are factually indistin-

guishable from those of petitioners’, by its faiture to con-)

sider the special relationship of a member of the Armied

F orges to his employer and by its failure to apply the appli-

cable law of California in such factual Situations, ‘which .

law is identical to that in other circuits... ccc 1$

i’

‘by

oie. : PAGE

See gee Oe II,

The Court of ‘Appeals has tlecided an important question ‘of -

local law in a way probably -in conflict, with all applicable _

——tocal decisions of California by holding that control of the

instrynientality during the journey is required ‘to hold an

employee to be acting within the course and scope of his

employment in travel situations. * In addition, the holding -

that United States v. Sharpe and United States v. Eleazer

are a part of the California law is in conflict with all appli-

cable California decisions and i in violation of California law

_respecting-the-application of < dicta to the law. of the case...

ITI.

The Court of Appeals, by stating that the relationship of a

member of the Armed Forces, to his superiors is not a part

. of his employment relationship, and that the relationship

cannot be considered as a factor in ‘determining scope of

‘employment under lifofnia law of respondeat superior

has decided a ci tas in direct conflict with the

‘ applicable decisions of this COUPt.....2:----.-----sces-ceeeeeeeceetees -

‘ ne IV. oh be

The Court of .Appeals by affirming the grant of the motion

for summary judgment where several genuine issues - of

fact exist and (if the findings of the District Court are

applicable) by ignoring findings XIII. and XIV [R. 28] |

has sc far departed from the accepted and aisual yourse of

judicial proceedings and has so far sanctioned such a de-

“parture by the district court as to call for an exercise of

this court's power of supervision......... Sistah bch qauecacdek 30

Ba end I a ee Gash etessctaeinusob eee ame

. *

;

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INDEX ‘TO APPENDIX —

. 2 - , . ; a

A. PAGE :

Order Directing Kiling of Opinion and Filing and Recording of res

Jere on senacgaacnnnnnnsucsensaggainsonnntianannenscns sa oe

_Opinion of ‘the United States Court of Appeals in the Matter we re

of Theodore J. Chapin and Adam Sydlik by United State-os- ~ : ye

America ......... asinine — EE EC 2 ,

Judgment of the Court of Appeals, in the. Matter of. Theodore

SY, Ciyin and Adam Sydlik v. United States of America......13 ®

Order Denying Petition for Rehearing in Circuit Court of Ap-

ANNU. scscslannenacitlaatensii siidesinicsecishceibitin 14

. See =

. Tf :

\ .

° \

we Ft

\ fae

‘ iv.

TABLE OF AUTHORITIE CITED .

: ois CasEs ae te oe Pace :

Allen’ v. Mutual. Bldg. &. Laon Assoc., 22 Cal. 2d 474, 139

. 2d MR ans "RE OO TO x. 24

Bee oa Co. v. Freeman, 63 S, Ct. 1146, 319 U. ‘Ss. 448,

87 L. Ed. 1509: one tdci Waal 3

Boynton v. McKales, 139 Cal. App. 2d 777, 292 P. 2d 952........ 31

Brown v. “Montgomery | Ward & Co., 104 Cal. App. 679, 286

Pac. 474. , P a ieciinices ame

Carr v. William C. Crowell o., 28 ops 652, 171 P. 2d

5 .. anand setbaanaditdlnatinusontia 22, 27

Cook y. Sanger, 110,Cal. App. 90, 293 Pac. 74.....0..-..23, 24, 31

_ Crooks v. Glenn Falls Indemnity Co:, 124 Cal. App. 2d 113,

BO I I ipsa besntestnasnsn ye

Curcic v. Nelson Diaplay Co., “19 Cal. App. 2d 46, 64 P. 2d

aa... ave : 16, 23,- a 7

" Dunfiington v. First Atlantic National Bank of. ies Beach,

195 F. 2d 1017......... Seca ecaicslts opus peanithsohtny Casbeamicsion 32 |

Gayton Engineering Co. v. ‘Indus. Acc. Comm., 95 Cal. App. 7

RP A Ee inate hiccinseciaii 10, 27, 30. es

~~ Graham v. United States, 57 Ct. jC. ee: a

Hinson v. United States, 156 Fed. Supp. 831. endeataiane 15, 16, 17

~ Hinson v. United States, 257 F. 2d 178.ccccseocccecee dS, 17, 29°

Industrial Indemnity Exchange v. Indus. Acc. Comm., iF Cal.

0 Da Re 5 ee incite itn entcancesttncieinblasintanctaten 22

Jozwiak v. United ae Fed. Supp. 65....... Rees asa 12, 26

‘Marquardt v. United. States, 115 Fed. Supp. 160........12,046,27, 3!

McVicar vy. Union‘ Oil Company, 138 Cal. App. 2d 370, rg

I wees . 6,7, 13, 21, 22, 24, 25, 26, 2

a Murphy v. United States, 179 F. 2d 743.........-...000+- sienlticett: ae

Noe v. United States, 136 Fed: Sapp. 699..2............................ li

Purcell v. United States, 130 Fed. Supp. 882...........16, 23, 27, 31

Vv.

5 PAGE

" Ridetin v. Indus, K& Comm., 23 Cal. 2d 248, 144- Pp. 2d 16. Risen 22

~-Rygn v. Farrell, 208.Cal. 200, 280 Pac. 948.0000. 21, 27,431

“Stephenson vy. Southern Pacific Co. » 93 Cal. 558, 29 Pac. 234... 23

Stockton Theatrese Inc. v. Palermo, 47 Cal. 2d 469, 304 P..

2d 7 cccabaddchae kneemuacexaaunes acuncieah dbdinadabbtan ai cede les fica 24

. United States v. Aetna 1 Cli & duit Co., 338 U. S “366,

70S. Ct. 207, 94 L. Ed afi... : na 29

United States v, Eleazery\77 F.2d 914 ree 6, Pe di, 14, 16, 23, 26.

United: States | v. Kennedy,

United States v. ee | | ee tke Oe 15.16, 19

United States v. Sharpe, 189 F. 2d 239......... oe

Sea neatis eibeibh peiesbeies igh ca adaconcimiain adi ee 6, 7, If, 13, 14, 16, 17, 23, 26

~ United States v. Wibye, 191 F. 2d 18%. iced tees

| Villanazul v. City of Los Angeles, 37 Cal. 2d 718, 235 P. 2d

Bees acne haailpiseap edd iieaianasiadaicabimiomniaaiio nsabailibsains saleadinbelinaides ~ ae

~ Wigginton v. Order. of’ United Commercial Travelers of Amer-

4, ica, 126 F. 2d 659... | soeebaaieuissutien

Williams ¥. United a) Ae 2 | ene | os 28,. 32

Williams v. United States, 350 a & 857, 76S. Ct. 100, 100

L. Ed. 761..... Cees oe ey ef 28, 29

OPINIONS OF Colitis GENERAL AND. JUDGE ADVOCATES’

| GENERAL

7 Digesty oi Opinions ‘oi the Judge Advocates General, p. “107. 26

37 Opinion of Con roller General, p. 3.. eaibenoclaaneaiebecesiibeaiestinals 25

RecuLatioN OF ARMED Forces’. eae

Army Tinvel Regulations, rg” . o . aae nn eee 18, 25, 26

Joint Travel Regulations, Part’ ; Sec. ........... nee S 12, a5

Joint: Travel Regtilations, Part Pe a: | | ce "SOO 26

al as Nile Ains le A han FS a Rit ile ew eahtersen

-— “RULES — s PAGE -

"Federal Rules of Civil Procedure, Rule 52(a) piss inaiiaaaccameent oe

Federal Rules of Civil Procedure, Rule 56(6) indibvinleeiaiiicedassstanindl -... 30

STATUTES

Act of June 251948, Chap. 646 (62 Stat. 928) ..-eccececcee on 3

Act of June 25, 1948, Chap.. 646 (62 Stat. me TS ee CeO aT |

California Labor Code, Sec. 3000.....-.sseosseesssesse Sieaccuics wey

United States Code, Title a a dod 26

United States Code, Title 28, Sec. 56() -2..--..-:c--0--- SoH Reet 4

. ‘United States ee . t ) eS Le

United, States Code, Title 28, Sec. 1291........ A Rcniaatie 3

United “States Code, Title 28, Sec. 1346(b).........2, 3, 4, 5, 23, 29.

. United States Code, Title 28, Sec. 2671 .ececcsee sooe-3, M1, 23,:29.

‘United States Code, Title 28, Sec. 2674 ccccscccesceslocsscesseeeengy 23

United States Code, Title 50; Sec. 705.e:csccsecessecceeceeenseenees 19, 26°

| - O © - TexrBooK — :

-Restatenient of Law of Agency, Sec. I titekcenncsiins ‘ait 22

. om

a te s

°. ms

e .

‘IN THE

Supreme (ourt of. the ss ae States.

_ OcToBER TERM, 1958

Nc Adeaaseittins

. THEODORE J.-CHAPIN and ADAM SyDLIK, *

pina 6

a eee eee 3

UniTED STATES OF. AMERICA,’ ; .

Seeny” Raspondent.

Petition for Writ of Certiorari-to the Ufiited States

Court of Appeals for the Ninth Cireuit. —

To the Honorable Earl Warren, > Chief Justice of the

United States, and to the: ‘Honorable Associate Jus-

tices of the Supreme Court of the United States: *

Petitioners, Theodore YS ‘Chapin and Ad ydlik re-

spectfully request that a Writ of Certiorari issue to review

the judgment of the Court: of Appeals for the Ninth Cir-. .

cuit, entered in the above case on June 27, 1958; affirming.

the. judgmdat of the District Court for the Southern Dis-

trict of California, Central Division, pursuant to’a motion

for.a summary jtidgment, dismissing the complaint of the

petitioners.

= —

° e 9 . ° > ..

| ‘oping 1 Below.

- Honorable ° Benjaniin ‘Harrison,’ District Céart

| * Judge i in:the District Court: of the Vaited States, Sout ern

So District, Central Division, made Q¢. ‘Written memo: dum

fica _ opinion respecting his order, but dict on the 14th zs

January, 1957, grant the motion ofthe United States of -

' America fof a*Summary judgment {R. 23]. The. judg-

ment was déeketed and entered on January 25,°1957 [R.

29}. The case “is not reported.

_ The. opinion of the Court of Appéals for the Ninth Cir-

cuit, affirming the judgmeni of the District Court, is re-

ported in 258 F. 2d 465, and a copy thereof is appended °

hereto ( Appx. 2-12)... A timely Petition for Rehearing —

- was denied by the Court of ‘Appeals without comment on-

the 17th day of October, 1958 [R. 93, — 14].

> Statement of’ the Grounds on’ Which the Juzisdiction

ig oi é of This Court Is Invoked. — 3

The jurisdiction ‘of this court is invoked under: C hapter

: 046 of the Act of June.25, 1948, 62 Stat. 928; 28 U. S. €.,

S@gtion 1254(1).

The “judgment of the. Court of Appeals for. the Ninth:

- Circuit is filed and entered on June 27, 1958, [R. 92: Afppx.

os 13]. The Opinion of the court is dated and filed June

. 30, 1958 R. "91; Appx. 12]. | The me denying the

. petition for rehearing by the Court of Appeals: for: the _

‘4 | / ~ Ninth Circuit is dated and was entered. on’ October * Aa

1958" [R. 93). ;

: The. District Court found thae i it had jurisdiction pur- ,

- suant to Title 28 U."S. C./'Section 1346(b) for the pur-

pose of ruling on the motion for summary Judgment [R.

Seictas re. °F. I| and. accordingly, made its judgment; which was

is docketed and entered on ne 2s, 1957. [R.°30].

€ 4 ~

Op February 26, 1957, petitioners filed their Notice of

_ Appeal to the Ninth Circuit Court of A‘ppeals. {R. 37].

The Court. of. Appeals had jurisdiction pursuant to the

provisions ef 28 U. S. e. Section 1291, the Order of

° .

. Questions Presented for Review.

cK First Quéstion.

‘Whether the Court of Appeals erred i in holding that the _ :

duties of a ‘member of the-Armed Forces had not: com- |

nced so as to subject the United States of America to

Si ability under the provisiorié of the. Tort Claims Act, 28

U.S, G, Sections 1346(b), 2671 and*2674,. where such

‘member of the Armed Forces is ‘transferred from one

permanent duty station to another by competent orders

4 authorizing travel by private automobile, providing for |

; “reimbursement of travel expense, directing that *travel. is:

‘nécessary in the’ military. service, ‘specifying the time Nf

_ departure and arrival and where the member of the Arm d

‘Forces is proceeding in his automobile to the new station :

& as directed without ‘deviation.

——

‘Second Ques ion.

"Whether the District Court an& Court of Sie ig-

_ nored' the application and policy corfsiderations’ ‘of the Fed-

-eral Fort Claims Act.and the decision of this céurt in the ;

_ Second Wilhams case, Williams v. United States, 350 U.

‘Ss. 857, 76 S. Ct. 100, 100 L. ‘Ed. 761. *

vw eee ae Third ania.

Whether the. District Court and the Court of in .

ni 0 the-local law relating to scope af employment in

. Conflict with applicable local decisions. J

—

Court © being - a’ final judgment. (Bee Machinery-€o. v..

Freeman, 319 U: S. 448, 63 S. Ct. 114687 L. Zed. 1509.

—_

Fourth Question.

"Whether or not under the stipulated facts and the find-

ings of the court (if findings are proper) a genuine issue

of fact was, tendered, such that the motion for. summary

; judgment of the Respondent should not have been granted .

under the prov isions of Title 28: U. S. C., Section s6(¢).

Statement’ of the Case.

A. The Action and Pleadings.

’ The original complaint of Petitioner, Theodore J. .

Chapin,@vas filed on May 22, 1956, in the District Court

of the United States, Southern District of California,

Central Division, alleging jurisdiction of the District Court

by reason of the provisions of Chapter. 646 of the Act of

- June 25, 1948, 62 Stat. 933, as amended; 28 U. S. C.,,

. Section 1346(b): By said complaint the Petitioner sought

recovery for personal injuries resulting from the negligent

_acts on, April 6, 1956, of one PFC Herman H. Frehe, a.

soldier. in the UnitegyStates Army, while. traveling under —

‘orders to a permanent duty station, which acts occurred

on a United, States: highway in the State of California .

, {&

secu ia

~The complaint of Petitioner, Adam Sydlik, was filed on

~ June 26,.1956, in the same court and made substantially

thé same allegations as those set forth in that of Theodore

J. Chapin [R. 7|. ai

Both of the complaints atlenda that Frehe was at all

times mentioned in the complaint an employee, servant and

agent of the United States Government, and did at all

times ‘mentioned. therein act within the Scope and course

of his employment and agency. The ‘complaints allege the

private ownership of the automobile being driven by Frehe,

/ 4 |

the negligent operation of said automobile, -afid. the in-

juries to Petitioners. , |

The United States ‘of America filed separate answers

which admitted that Herman H. Frehe was at all times

set forth in the complaints a membér of the United States

_ Army, and the tse of the private automobile by Herman

H. Frehe, but*specifically denying that Frehe was the em-

ployee, servant, or agent,- of the United States, acting

within the course and scope of his employment at the times

_ if question or with the express consent and knowledge of ~

“ the United States at the time and place [R. 12-18]. |

_ The matters were consolidated by a and ordér |

on the 23rd day of October, 1956 [R. 19].

Thereafter, a motion for summary iiiaiae was made *

by the United States of America upon the ground that

* there was. no genuine issue as to any material fact on ‘the

question of jurisdiction (Scope of employment tequiirement

of Sec. 1346(b) of Title 28 U. S.- C. [R. 22]). A stip-

- ulated set of facts having been arrived at [R. 31-36, 47,

48, 49]? the court made its order grantingythe motion on

January 14, 1957 [R. 23].

o~..

‘ . - ee

B. The baring on the. Motion for Summary Judgment. ;

Notwithstanding the findings of fact on file herein, peti-

.tioner sets forth with some detail the matters occurring at

‘the hearing in view of the provisions of Rule 52(a) of

Title 28. The court is free té consider the stipulated facts —

and reach its own conclusions untrammeled by a ‘District’

Court’s findings and conclusions of law in’ any event.

(Wigginton. Order of United C ommercial Travelers " oa

' America, 126 F. 2d 659, cert.’den., 63 S. Ct. 28, 317.

' U.S. 636, 87 L. Ed. 513.)

- é i ; ;

At the hearing on January 14; 1957, the District Court

was presented with copies of joint travel regulations for

- the Armed Forces respecting permanent change of station. —

_In addition, there was read into the record, from joint ~

travel “regulations, Chapters 36 and 38, Part B, Section

3050, the foliowing..

yr Part B, 3050—Travel Status: (1) Importance 4

Travel Status. Members’ are entitled to travel and

transportation allowances as authorized in accordance.

with existing regulations, only. while actually in @-

‘travel status.’ - They shall be deemed to be in a travel

status’ while performing travel away from their ‘per-

- manent duty station, upon public business, pursuant

. to competent travel orders, including necessary delays —

enroute incident to mode of travel and periods of

necessary temporary or temporary additional duty”

[R. 48, besa ee ¢

The court in its niin stated that it felt that Mc-

Vicar v. Uiyon Oil Co. (1956),.138 Cal, App. 2d 370, 292

courts of California by reason of that case had adopted

_the doctrine laid down in North Carolina by the court in‘.

the cases of United: States v. Sharpe (4 Cir.), 189 F. 2d

; 239, and United Statés v. Eleazer (4 Cir.), 177 F. 2d 914

[R. 46, 51]: The. court stated, however, ‘that there .are

cases in California prior to. the time of MV icar holding |

to the contrary [R. 5Q]. Petitioners pointed out to the

+ court that the Sharpe and Eleaser cases were simply dicta

and not necessary to the ruling of the court in the Mc- =

Vicar ‘case [R. 57].

The court also’ stated that it was of the: opinion that

there would be no question (i.c., in holding ay a

» if the lay’of Washington were invol\ed,\in view of the

Pd ,

__P. 2d 48, was the controlling California case and that the

* —7— es

decision in the Ninth Circuit in the case of United States

vy. Kennedy, 230 F. 2d 674, factually on all fours with the

2 case of the . petitioners [R. 54]. \ aes

‘The court stated [R. 44, 45] that it would not go: into

the questions ‘of negligence or injury and further stated it

| would be fine if the Circuit, Court of. Appeals: would dis-

agree with Judge Parker (the judge who had decided the

Shar pe’ and Eleaser cases) so that there would be a con- -

flict in the Circuit Courts and the Supreme Court could

_then pass upon the question | [R. 52]. He further invited

. an appeal on this matter in order to clarify the law as to

_ the Federal Tort Claims Act [R. 45]... +

The: nub of Zhe District Court’s ilies .so far as the

* McVacar case is concerned, appdrs to. be that California

adopted the rulings of Judge @arker in S harpe and Eleazer

to the effgct that the government was not in control of the

instrumentality being operated because it was the car

owned by the soldier [R f91]. The fact that there is not

“one single California case in the State. Supreme ‘Court or

in the District Courts of Appeal, including the McVicar

case, which has held that the test of scope of aR

is control of the actual instrumentality, was pointed out

the District Court [R. 52-53].

There was also introduced in evidence pleadings and

findings in the matger of Kennedy v.- The United States

in the United States District. Court of the Western Dis-

trict of Washington, Northern Division. which was af-

firmed in the Matter of United States v. Kennedy (9

te). 230 F. 2d 674 [R. 60-73]. for the purpose of show-

ing the similarity ‘of the factual situation and how the”

District Court in Washington had held in that situation.

. : .

C. The Facts and ns District Court's Findings and

Judgment.

The facts and the findings in the instant case were as

follows: 3 i meee

—

_That Herman. Haake « was a Private’ First Class,

United States Army, and an employee of the United States

of Americas[Stip. V. R. 32; F. VI, R. 25]; that he had

been assigned to. Company C of the 819th Engineering

Aviation - Battalion, . stationed at Norton Air Force Base, |

San Bernardino, California; that prior to April 4, 1956,

Company : 8)9th, Engineering Aviation Battalion was

disbanded and the personnel thereof reassigned to new

ae at various duty stations [Stip. VI, R. 32; F. VIL,

R. 25]: that on March. 28, 1956, Frehe was released from

assignment to Company C 819th Engineering Aviation

Battalion and reassigned to Headquarters Company UL,

_Corps, Fort -Hood, Texas, and that he was directed} pur-

. suant to said order to depart on or aboue the 5th day of

April, 1956, from Norton Air Force Base’ from Fort

Hood, ‘Texas, and that the change of station was a per-_

manent change pursuant to said‘ order {Stip. VIF, R. 32;

F. VIII, R. 25-26]. .

It was<further stipulated and found that Frehe was att

thorized to travel by private automobile and’ was author- |

ized to receive reimbursement for travel expense in lieu

of common carrier to:the extent pfovided by Army Regu-

lations and that he was to receive his soldier’ S$ pay at ail

times [Stip. VIIT, R. 33; F. LX, R. 26]; that Frehe and ©

others in his umit were*under similar orders and were au-

thorized delays enroute, chargéable as’ leave. from 4 to 30

days; that Frehe see) ism a 4 day delay and his

leave address purst to said order was at Astoria, Long ,

Island, New York, New York; that on the 10th day of,

{

O°

April, 1956, after the. collision on Ap®il 6, 1956, new

orders were issued from headquarters-ef the’819th Engi-

neering Aviation Battaliag, being Special Orders No. 59,

yaragraph 1 thereof authorizing Frehe to proceed on or

about the 11th day of April, 1956, te Fort Hood, Texas,

Special Orders No. 50 having been revoked with respect

: ‘to his reassignment dy Special Orders No. 58 on the 9th

day of April, 1956 [Stip. XI. R. 34; FXII, R. 27f¢ that °

Frehe was directly enroute from Neston Ait-Force Base

to Fort Hood, Texas, as directed: by and pursuant to said

Special ( Irders No. 50 with another serviceman from his

unit authorized to travel in like fashion, sharing expenses

with him as a rider, having departed from Nortgn -Air

Force Base on April 4, 1956 [Stip. X, R. 33-34; .F. XI,

R. 27; Stip. IX, R. 33; F. X, R. 26}:, An extract ¢ the:

order was set forth, which order provided that rehe

“was to be at his station, by April -12, 1956, and a list of -

the definitions of the abbreviations found in. that order;

among those definitions is the following: “TIN” —Travel

directed is necessary in the military service |Stip. x,

R, 33;-F. X, R. 26]. :

-The court found that at all times F rehe asa pa wen of

the armed. forces was sybject to the orders and -contral of

his superior officers of the United States Army in’ per-

formance of his military duties | F. XII, R. 28]. The

court further: found that the United Stktes Army could,

under applicable travel: regulations, have. forbi

Frehe from traveling from California to Fort Hood,

Texas, in-his private automobile and could have required

tha‘ “he travel by rail or other means: of transportation

shouid the exigencies of the‘ service, so require [F. XIV,

R. 28]. Petitioners at this point respectfully submit that

Findings XIII and XIV satisfy the requirements of. the

-aeersia law initial control.

solillien

in Finding XV OR. 28] the court’ found that ie acts

of Herman Frehe, as set forth-in the stipulation of facts.

/were acts in his individual capacity in driving his own

.automobile and that under the law of the State of Cali-

fornia, being the law of the place where the, accident oc-

curred, the same were not within the scope of his employ-

ment as a. soldier in the 1! States’ Army.

The court then found ‘that there. was no isstie between -

the parties as to ‘the above facts, except as to the finding

of fact set forth in Finding XV, sy

The court then concluded that Frehe was not within the

- scope of his employment and that thé cotrt had no juris-

diction to proceed further.

‘ D. The Opinion of the Circuit Court » Appesis.

. \The Opinion of the Circuit Court of Appeals i analyzed

herewith at some length for the purpose jef argument.

since employment was found and stipulated to and neither

leave nor negligence were issues. :

On the tssue of summary judgment the court stated that

there were no inferences which could be drawn by réason

of the agreed set 6f facts [R. 84-85, Appx. 3]. Hew-

ever, in footnote 12 of its opinion [R. 88, Appx. 8] the

court sought to. distinguish Gayton Engineering. Co. v.

| Industrial Accident Comm. (1950), 95 Cal. App..2d. 740.

213 P. 2d 737, on the basis that the transfer was especially

beneficial ta the employer, in that available labor to per--

fow.1 his services was in extremely short supply, and that

‘the employee's truck which he was driving at. the time ot .

the accident was of special utility ‘to the employer.

On the question of scope of employment the Court of

Appeals determined that it should first decide if the “pe

culiar status” of a‘member of the Armed Forees should be.

considered, i.c:, with respect to the question of the control :

required by the emploter. The court concluded that it

would not look to the relationship which a member of the «

Armed Forces bears to his superiors: The court stating,

however, at footnote 6, “But see 28 U..S. C. Sec. 267 1,

defining ‘Employee of the Government’ ” on 86, Appx\.

6].

The court then states : yY

“Other federal courts, in transfer cases, under the’

" applicable state law, have faced this issue and have

‘Caing for,.this proposition United States v. Sharpe (47

Cir.

Tenn., 1956), 136 Fed. Supp. 639. Petitioners at this

failed to draw ‘a distinction based upon the unique’ .

ire a of a soldier to his ae (emphasis

added). oe

19519, 189 F. 2d 239; United States v. Eleazer (4

, 1949)41077 F. 2d 914; Noe v. United States (E. D.

time whould point out that*in all of those:cases the issue of

whether or Zz the member of the Armed Forces was on

« e was determinative of the courts’ ruling and that all

et the so-calle Federal Law prior to Williams v.

United. States, @30 U: S. 857, 76 S.Ct. 100, 100 L. Ed.

7ol,

vacating Williams. v. United Stateg (9 Cir., 1954),

- 215 F. 2d 800, to the effect that the courts would look to

the Federal Law to determine whether the person inflicting

the injury was acting within the scope - of employment.

The court, when concluding its discussion and stating

that the requisite control of the employee required by the

California cases dpes not exist makes the following state-

ment, which to Petitioners’ point of view is inherently

contradictory and unintelligible in the light of Williams v.

United States, 350 U. S. 857, 76S. Ct. 100, 100 L. Ed.

761:

ae '

“The government's ability to. control Pfc. Frehe’s

movement arose not out of its status as an employer,

Sse

but by virtue of its military capacity. In our view

the Bsgries element of control relates to the‘ par-

tiéttar function for which the employee was hired and

canndt be supplied by the unique military status. The |

. soldier’s obligation to ‘hold himself ready -for instarit

obedience to the commands of his sugeriors is the

-concern only of the Atrmy and the Soldier this unique

obligatiopis totally unrelated to any conduct affect-

ing the appellants or others similarly situated. ds

an employer, the army could not direct:the manner in

w ch Frehe drove his car or its mechani fitness

for the trip.” [R. 90, Appx. 10]..

The court then states that, to that limited extent Finding

XIV [R. 28] is erroneous [Footnote 14, R..90, Appx. 10].

The court then concluded quoting’ from Joswiak v.

United States (S..D. Ohio, 1954¥, 123 Fed. Supp. 65, 69,

that the activity of traveling between permanent duty sta-

tions Nh merely’ durin ef age and not within the

scope of employment 3 “fiat Fr, or s duties .were to be

performed ‘at his post. “Chat at. p e time the accident oc-.

-€urred his duties had terminatedgat Norto Air| Force

Base and had not yet begun at Fort Hood 91, \Appx.

11). ‘4

The court, does not consider at all: the question of

whether-or not Frehe was on travel status as required by

joint travel regulations, Section 3050, Part B, in ‘order

that hesbe entitled to pay and allowances while traveling| |

. The — of Appeals distinguishes the factually identi- -

cal cases of United’ States v. Kennedy (9 Cir., 1956), 230. :

F. 2d 674, and: Marquardt v. United States (S. D. Cal, |

- 1953), 115 Fed. Supp. 160, on the ground that in Kennedy °

the government conceded scope of employment and that in

ée

Marquardt it was “assumed” in a ‘transferred govern-

ment employee’ ” case [Footnote 7, R. 87, Appx. 6].

€ court distinguishes cases cited by. petitioners as

- cases wheré duties required continual travel or on the. basis

- that the cases were under the so-called “spetial errand’

. tule [R. 87, 88, Appx. 6].

As the basis for its governing criteria ‘to: determine

‘the scope of employment status of “trarisferring em-

ployeés” the court relies on McVicar v. Union Oil Co.,

138 Cal.. App. 2d 370, 292 P.. 2d. 48, quoting from that

. case at some length and noting that the case ef United

States v. Sharpe (4. Cir.,.1951), 189 F. 2d 239, is cited

-in McVicar as a case nearly in point, although’ in that

case the soldier was not to be reimbursed for expenses.

The court then concluded, after citing the Sharpe case

for the proposition that a soldier fraveling Vv self- selected |

means, under competent orders concerne

of reporting, is not within scope of empl

basis of the McVicar case is

yment, a the

“that the act of travel by ‘the efiployee is née one

subject to the employer’s cont ol as a part of the

duties the employee was hiredAo perform. Similarly,

the act of a soldier’s travel on a permanent change -

of station is not a part of the duties for which he is

engaged.” [R. 89, Appx {9}.

Reasons Relied Upon for the Writ.

1. The Court of Appeals has rendered a decision in

conflicf$with the decisi f other circuits and with the

decisions of the Oth Cifeuit itself in cases which are factu-

ally indistinguishable from those of petitioners, by. its

failure to consider the special relationship of a member

of the Armed: Forces to his employer and by its failure

to apply thé applicable law of California in such factual

_ situations, which law is identical to that in other Circuits.

| ‘

only with date.

rece nattin ernee Boet

Pm)

on Sr re. A

2. The Court ‘of’ Appeals ane an important

question of local law in a-way p obably in conflict with all

applicable local decisions of California by holding that con-

‘trol of the instrumentality.during the journey is required’

to hold an employee to be agting within the course and

scope of his employ ment in. travel situations. In addition,

the holding’ that United States v. Sharpe. and United’ States -

v. Eleazer a part of the California law is in conflict with .

all applicable’ California decisions and in violation of Cali-

fornia law respecting the application of dicta to the law

oi the case.

"3. The Conrt of Appeals, by stating that the relation-

ship of a member of the Armed Forces to his superiors is

relations cannot be considered as a factor in determin-

‘not a *. his employment relationship, and that the

ing scope of employment under California law of respon-

deat superior, has decided a federal question in direct .con-

flict with the applicable decisjgns of this court.

4, The Court of Appeals S

motion for summary judgment where several genuine is-

firming the grant of the

sues of fact exist and (if the findings of the District Court . :

are applicable) by ignoring Findings XIII and XIV [R.

28] has so far depatted from the accepted and usual course

of judicial proceedings and has so far,sanctioned stich a

departure by the District Court as, to call for an exercise

~ of this court’s power of supervision.

side

rh ARGUMENT. ~

dn Amplification of Reasons for Granting the Writ.)

1. |

The’ Court pr _Appeals Has Rendered a Decision in

Conflict With the Decisions of Other Circuits and

-with the Decisions of the 9th Circuit Itself in

Cases Which Are Factually Indistinguishable

From ‘Those. of Petitioners, by. Its Failure to Con-

sider the Special’ ‘Relationship of a Member of the |

Armed Forces to His Employer and by. Its Failure .

‘to Apply the Applicable Law of California i in Such

Factual. Situations,, Which Law Is. Identical” to

That in Other Circuits. © ")

On April 15, ‘195

United States of An rica v. Mraz, 295 F. 2d 115, held

where orders similar to: those now ’ before the court. were.

involv ed, on a permanent change of station, that the mem-.

ber of the Armed Forces using his private automobile was »

engaged upon the government's business in furtherance of

_the governmient’s interests. On July 23; 1958, the 5th |

Circuit, in Hinson ?. United States of America, 257 F.2d -

178, reversed Hinson v. United States of America (D. C.

Ga.), 156 Fed. Supp. 831, and held that a medical officer

‘enroute to his first duty assignment in. his own private:

automobile, under orders ‘almost identical to fhose in the

case at bar, was acting w ithin the scope of his employment.

in that one of his specific duties was. to travel to his new

\ Station. Both of those cases cited with approval the case.

of United States v. Kennedy | (9 €kr., 1956), 230 F. 2d. .*

674. The circuit court in the Hinson case followed Cali,

, the 10th: Circuit in the’ case’ of a,

eres

fornia cases which ‘thesCourt of Appeals in the present

matter: distinguishes. Those cases are: a

Marquardt v., United States (S..D. — ees 115

Fed. ‘Supp. 160; - a

Purcell.v. United States. (N. D. ‘Cals 1955), 130° |

Fed. Supp. 882; oF

United ‘States v. Wibye (9 Cir. ies 1951), 191 F. 2d

181; 7

‘Curcib Nelson Display Co... (1987 ), 19 Cal. App.

- 46, ‘64 P. 24-1153.

’.In the thea case, an Air Force Office: was travelling:

in New Mexico under ordérs changing his permanent “duty

assignment from California to New Mexico. The special

_ orders authorized either transportion by commercial car-

~~ rier or by privately owned conveyance and provided that

the officer was to arrive at his destination on a date ‘cer-

tain. If private transportation was used, travel time was —

allowedv and mileage reimbursement authorized. Travel

was declared to be necessary in the military service. ‘The

officer was directly en route to his new station. The ‘court .

cited the applicable _ New Mexico law to follow the general -

rule cf agency: which holds the master liable for the. acts

of his servant, if the acts were done while the servant was.

engaged upon the master’s business, with a view to further .

‘the master’s interests, and did not-arise wholly from some

_external, independent, and personal motive: on the part of

_ the servant. The court then- cited United States v. Eleazcr

(4 Cir.), 177 F..2d 914; United States v . Sharpe (4 Cir.),

189 F. 2d ”239; and Hinson v. United States (D. C. Ga.),

156 Fed. ‘Supp. 831. It distinguished both Sharpe and *

Eleascr on the theory that in the Sharpe case the member .

of the Armed Forces was driving his own: automobile

at : t

“17

‘ : a ' ; e ° : : %

while on deferred leave en route-home, and that inthe

Sharpe case, the soldier was travelling. in his own auto-

mobile from one base to another at his own expense with- | -

out allowance of mileage and under a pass which imposed

no duty upon him, except to report to the new base on a

fixed date, and further distinguished the case before it by

saying that the officer* “had ‘no leave,” and, therefore, his

time. belonged to the government. The court then stated :

“If the-officer in out case had been travelling ina

government owned vehicle under the .same ‘circum-

stances, thete could be no doubt-of the liability of the.

government for his act. Surely the result should be’

no different when he is driving his own vehicle with .

. the express consent of the gov ernment.” ee

In Hinson v. United States of “America (5 Cir., 1998), ~

257 F. 2d 178, reversing Hinson v. United States of

America. (D. C. ,Ga.), 156° Fed. Supp. 831, a medical

_ doctor. was frosting ac a permanent station under the

following orders:

“By direction of the Sécretary of the Army * *

following: officers, * * *- are ordered to active

duty in grade currently held as Réserve Commissioned

* ° officers of the Army. . On effective date of active duty

(Ed CSA) officers will proceed from their home * * *

to station shown.. Travel directed i is necessary in the

military service. Travel by privately owned convey-*

ance authorized. Permanent change of station unless

otherwise indicated. * * *. Capr.. Goprrey F.

Westcott, 04070667, Mc USAR. Central State

Hospital; ,Petersburg, Va. * * * EFFECTIVE DATE ~ *

OF AcTIVE Duty * * * 28Sep56 * *. < STA

TION ASSIGNED; REPORTING DATE * * * Sia Det.

Army Med. ‘sve Sch.- Brooke, AMC. Ft. Sam Hou-

ston, Tex. * * * report not later than 8 Oct 56.”

—18—

The court considered Army Regulations AR35-3033,

which petitioners believe were also in effect at the time of

the accident of which. Khey a, ‘and which provided

as follows:, . . - AN ,

“Section I. 2.b.. Permanent’ change of station.

“(1) The term ‘permanent change of station’ means

the transfer or assignment of a service member from

one permanent station to another. It includes the

_ change from home or place from which. ordered ta.

active duty to first duty station upon.

“(a) Appointment:

; “(b) (Call to active duty, | ‘ se é.

ek ok O*® eatin eae 2

“ec. Travel status. A_sefvice member will be |

~ deemed ‘fo be in. travel status while performing travel

between his. permanent ‘duty stations, upon public

business, ptirsuant to competent. oe 7 e,

The travel status commences with departure -from the

permanent duty station and terminates with the ar-

rival -at the new permanent duty station.”

“Section II. Permanent Change of Station in United

A Pee ea.

os Canned. t. Mode clected. by members. Ex- .

cept ree group travel, upon permanent change of sta-

_ tion the service members may:elect the mode.of frans-

portation unless travel is directed to be performed by |’

Government conveyance in- the orders. Transporta- .

tion will be‘furnished or payment of travel allowances

will be made for the mode utilized... When the: mem-

ber travels within the United States on a permanent

change of station pursuant to competent orders (not)

designated ‘group travel orders’), which do not direct

—19— . hy *

travel by Government conveyance, he is entitled to

one of the following: -

“(2) Transportation requests, or transportation in

kind, plus a per diem in lieu of subsistence, or meal

S tickets. If transportation requests are not available

to the member at the time and place required, the

-member may elect reimbursement for the actual cost

of. transportation for the mode of transportation

authorized and used plus ry diem or: the mileage

allowance prescribed in (1) above.”

The court then stated the. same proposition for . the

Georgia law with respect fo ‘the scope of employment as.

_that stated in the Mraz case for the New Mexico law..

The: court then, looked to the special factors cHtaracter-

istic of military activity and discipline, stating ; ee

“While ‘acting in line of duty,’ 28-U. S s-@ A. 2671,

is generally equated with traditional notions of scope

of employment, Cannon v, United States, 5 Cir. 243

Fed. (2) 71, 73, the phrase reflects that-Congress had

in mind, and . so must we, the special faetors char-

acteristic of y military activity and eer (Em-

phasis added.)

The court held that the right to control of the servant

was the touchstone of vicarious liability, citing Georgia ”

law for thisfroposition, and found that that factor was as_

‘adequately supplied in the case before it as is-ever possible

when driving servants are involved. It noted that under

30 U. S.C. A. 705, the C aptain was accoyntable to the

army for his actions while driving. 50 U. §. C. A. 705

provides : Ds

“Any person subject to this code who operates any

vehicle’ drunk, or in a reckless or wanton manner, .

shall be punished as a court martial may direct.”- ,

a. duties specifically. assigned to him, receiving: Army,

- of ‘the armed forces to the military can not be considered

~20-- gas

The cout cond that the indifference of the army 4s to

_route or \mode of travel made’ no difference,. since it’ was |

the right of control, not the exercise of it, that it. was ; the

important factor. The court stated:

“In executing this order to proceed; he made use of.

_- his private automobilé with the express authority of

the Army. For this-the Army’ bore the orm

which wer¢: ‘necessary: in the military service.’ In

so doing he was not .going to work. He was then

‘engaged in the performance of. one-of the varied -

”

pay, buh] ect to militar disciplin ; ‘and not on leav.

J y ng;

Thus itis clear that one Cireuit Court has examined,

the federal statute involved herein and has determined

that it was the intent of\Congress that the special factors

characteristic “of military activity and discipline must be

‘considered by the court in applying the local‘law to deter-

mine whether or not the employee was within the scope

of his employment. In the present case the Court of Ap-

peals has ignored the stipulation. of facts and findings on

this point and has stated that the relationship of-a member

to apply.the local law. ‘This is much ‘more than to’ say

that the local law of New Mexico, Washington, and

Georgia, is different: from the law of California. The

matter which this. eourt inust settle is the: fundamental

approach of the courts in applying locat law where mem-

bets of the armed forces aré involved under the Tort

Claims Att. Theretore, certiorari oe be granted on

‘this ground alone.- ‘

Howev er the law of California in-the matter of respon-

deat superior is no different from the law of the other -

jurisdictions on ‘the facts in the cases herein cited. gee

3 ~\ |

_21—

see Ryan v. Farrell (1919), 208 Cal. 200, 204, 280 Pac.

- 945. The law of the State of Washington is also tdentical.

United States of America v. Kennedy (9 Cir., 4956), 230 ©

F. 2d 674, 675. Thus the court. is presented with a situ-

ation where the identical law of four states under identical

facts has been applied i in a canflicting manner by. differeht

ae” — aie and for this reason should ‘grant certiorari.

| ih. ¢. .«-

The Court of Appeals Has Decided an Important

_ Question of Local Law in a Way Probably in

Conflict With All Applicable Local Decisions of

California by Holding That Control of the In-

strumentality During the Journey Is Required to

Hold an Employee to: Be Acting Within the

Course and Scope of His Employment in Travel

Situations. In Addition, the Holding That United

States v. Sharpe and “United States v. Eleazer

Are a Part of the California Law Is in Conflict

: With All. Applicable California Decisions and in

Violation ‘of California Law Respecting the Ap-

plication of Dicta to the Law of the Case.

If the holding of the Court of Appeals is to be construed

as laying down the rule that an. employee, to be found

_ within the scope of employment, must be under the control

of his employer with respect to,the instrumentality used

at the time of the occurence, den the Court of Appeals:

has erroneously construed the-law of California. ° Peti-

tioners challenge counsel for the United States of America

to cite one case in, the California Supreme Gourt which

holds for this proposition in determining whether or not.

% 5

an employee 1s within the scope of his employ ment. Peti-—

tioners do not believe that-Mc Vicar v. Union Oil Campariy

(1956), 138,Cal. App. 2d 370, 292 P: 2d -48,- relied upon

by the Court of Appeals herein aie for that propositio ny

either. It is to be noted respecting the Mc Vicar case that

there was no petition for rehearing in the District Court

of Appeal or for hearing before the Supreme Court ‘of

California.

The Mc Vicar case, at page 373, has a preliminary dis- °

cussion of essential characteristics of employment rela-

tionships and states that,it is determined by the right to

_ control and direct the activities of the person rendering:

service, or the manner and method in which the work is

performed, and wh€ther, if instructions were given. they

would have to be obeyed. The court cites Industrial In-

demnity Exchange v.. Industrial Accident’ Commission

(1940), 26 Cal. 2d 130, 135, 156 P. 2d 926: Riskin v.

Industrial Accident Commission (1943), 23.Cal. 2d 2g8.

253, 144 P. 2d 16: and Villanasul v. City of Los Angeles

(1951), 37. Cal. 24-718, 721..235 P. 2d 16; Labor Code,.

. Section 3000: Restatement Agency, Section “220( Le as - -

* cases, status and texts, are concerned only with the issue

of whethe? or not .the status or relationship of two per-

sons is that of employee and employer, but this was not

an issue in the present case as is apparent from the stipu-

lation of facts [R. 32] and Finding VI [R. 25].

The California doctrine of respondcat. superior is as

stated in Carr v. William C. Crowell Co., 28 Cal. 2d 652,

authority foo foregoing proposition. All of those

655, 171 P. 2d 5, wheré the court, in reversing a directed... -

verdict for a building contractor whose employee while at

Ww ork struck anowier employee with a hammer i ina dispute

one out of the work, stated that phe doctrine

‘‘extends far beyond his actual or ‘possible control

over the conduct of the seryant. It rests on the

‘broader ground that every man who prefers to man-

age his affairs through others, remains bound to so.

| 23

manage them that third persons are not injured by

any breach of legal duty on the part of such others’

| _while acting in the scope of their employment.” ( Cit-

ing cases from Connecticut, California; New . York,

Missouri, and expressly overruling Stephenson v.

Southern Pacific Co.; 93 Cal. 558,562, 29 Pac. 234.)

The Stephenson case had held that it was erroneous to

give an instryction that if an act be done in“the €ée-

cution of authority, given the servant by his master,.

and for the purpose of performing what the master has

directed, then the master will be responsible, whether the

wrong is done by negligence or by wanton or reckless -pur-

pose to accomplish the. master’s business in an unlawful

~ manner. :

Other California. cases where ‘private employee auto-

mobiles were. involvedy have also held that control of the

‘person and not the instrumentality is the test.. See Cook .

v. Sanger (1930), ‘HO Cal. App. 90, 293 Pac. 794:-Curcic

v. Nelson Display Co. (1937), 19 Cal. App. -2d~46, 64 P. .

2d 1153.. In interpreting the Federal Tort C laims Act, 28

as a ee 1346(b), 2671, and 2674, the - District Courts

have held . mie

“that the element of control is satisfied according to

California rule which looks only to control of the

person and. not necessarily ‘to control of the instru-

-mentality.” ~

Purcell v. United States (XN. D. Cal., 1953), 130

Fed. Supp. 882, 885. :

Thus, if there is an implication that control of the in-

. Strumentality is necessary to-scopeof employment, this is

gleaned from the language of United .States v. Sharpe’

(4 Cir.), 189 F.2d 234, and United States v. Eleaser (4

Cir.), 177 F. 2d 914, ‘Nhat these cases. are not necessary

Fe Gee

to the holding of the Mclicar case Ae bag dicta is clear

fae m_a reading of that case. The disgussion or ‘determina-

tion of a'point not necessef¥ to the disposition of the ‘ques-

tion decisive on appeal -is generally regarded as obiter~’

dictum and not as the law of the case. .-—.

Allen v. California Mutual Building and Loan As-

sociation (1943), 22 Cal. 2d 474, 489, 139 P.

2d 321;

Stockten Theaters, Inc. v. Palermo (3957), ), 47 Cal.

2d 469, _— 304 P. 2d 7.

. * a

. Neither C. ook 9. Sanger. nor Curcic v. Nelson, which

' were both denied rehearing by tlie District Court of Ap-

_ peal, and refused hearing by. the Supreme Court, Were”

discussed in the Mc Vicar case.

In its discusion of the Mc Vicar case, the court of Ap-

peals [R. 89, Appx. 9] quotes from the’ Mcl icar case,

at page 373 as follows: ‘

“To put the test wa the cited case, if instructions

‘> were given, they would have been obeyed.”

, es OQ ‘ :

The court itself in the Mc Vicar case, at page 372 states:

“but the essential eyment of the right to exercise any

control over. his choke of the means of getting to.

Spokane i is here entire y absent.” _ :

Assuming, _ ar< guendo, that. the McV *¢ case properly

states the law of California, it thus appears that there are

several salient differences in the present case that would

: Temove it from the scope f° the Mc Vicar case, as follows:

r 4 he employee in the Mc Vicar: case had the right to

choose the place to which he would be transferred, while

Frehe did not. In this regard, it ¢as long been held by |

the office of the Comptroller General that no right for

reimbursement for travel expenses authorized by statute.

incident to an ordered ‘change of permanent station, ac-

rues to a member of the Armed Forces for travel by him

‘or his dependents under a mere permission to change sta-

tibn, i.2., where the member requests a change,.37 Opinions —

of the C omptroller General 53; Graham v. United States

of America,.57 Court of Claims 515; 7 Digest of Opinions

of the-Judge Advocates General of the Armed Forces,

~ page 107 (October 1952—December 1957).

2.. That the employee of the Mc Vicar case did choose

O be transferred while F rehe was ordered: to a permanent

change of station. ree ef.

De That the employ ee in the Mc Vi icar ‘case could leave

on such a ‘day as he desired and could arrive on such date °

as he wished. If he did not arrivé on a particular day, he

would not be paid. Frehe was required to be at his post

by April 12, 1956, and to depart from California on etait

5,1956.

. The employee in the tic Pew case received no pay

or allowance while travelling, but Frehe did.

> The employee in the. McVicar case ‘received no

travel and transportation allowances, but Frehe did. * In

order for Frehe to receive transportation and travel: al- -

lowance he must havé been’ on “travel status” which was

defined as performing travel away from permanent duty

station, upon public business, pursuant to competent travel

orders. |

_ Joint Pinel Regidaejasis, Part B, Sec. 3050;

| Army Regufations 35-3035, Sec. I-c.

°6. The employer i in the Mc Vicar case ciitgid 1 not order

the employee to use any particular mode of transportation

or forbid the use of a private automobile. The Army

could direct the mod of transportation to be used by

ee eae —

—26—

Frehe and could forbid the use of his private automobile

for the transfer [R. 75; F. XIV, R. “Pe

10 U. S. C. 1363; 3

Joint Travel Regulations, —_ 4150, Chap. 26,

Sec. 4; 8 aa6 7

Army Regulations 35-3035, Sec. II-3.

7. The employee in the McVicar case could oper-

ate his car in any fashion or condition he chose without

being responsible to his employer. Frehe could be court-

martialled for reckless or wanton’ driving.

50 U. S. C. 705.

It is therefore submitted on the factual basis above set,

forth, that-even-if the Court of Appeals did not choose to ©

look at the “unique military status”. of Frehe, there can

be no question but that the member of tHewArmed Forces

was within the scope of his employment. Had the court. -

borne in mind the special factors ‘characteristic of military

activity and discipline, there would have been no question ;

about the element of control. Furthermore, it should be . -

noted that both the Sharpe and Eleazer cases looked to the

federal law for the purpose of determining the relationship

of the government to its employees prior. to Williams v.

, United States, 350 U: S. 857, 76 S. Ct. 100, 100 L. Ed.

- 761. How then can it be said that such law could possibly ,

‘become a part of the law of the State of California, where.

no comparable, factual situstion. -has éver existed or likely

will ever exist ?

The Court of Appeals also cited Jozwiak v. United

States (S. D. Ohio, 1954), 123 Fed. Supp. 65, 69 to

accurately staté the law to be “there is a.clear distinction

between the acts done within the scope of employment and

- acts merely during: the employment.” It is respectfully

+7)

e d A : e ~*~

as er ¥ i

submitted that in view of Carr v. William C. CAbwell Co.

(1946), 28 Cal. 2d 652, 171 P, 2d 5 that such h@® never

been the law of Caljfornia. The court in Purcell v, Uni : |

States (N. D. Cal.; * 1955), 130 Fed. Supp. 8&2, noted t

2 the Jozwiak case seems @ be in conflict with Marqua i!

: United States (ID. C. Cal.), 115 Fed. Supp. 160/t

fact) situation of the Marquardt case is as’ follows:

A civilian employe ee. of the Corps ‘of Engineers was pro-.

“eceeding pursuant ti orders and was authorized to travel -

in\his own automobile from Los Angeles to a: Job site in~

ie The use of the automobile had been authorized

prior to departure and-the employee was to be. reimbursed

for such use on a mileage basis; while travelling pursuant

__ to the orders an& during .the ‘time! in which he was ex-'

enews found to be on vacation, the District Court, apply-

- ing the California EE te that such acts were in the

scope and ‘course of his employment. ‘The court found \

that be was on official business at the time the accident

occysred because the employee was being reimbursed for

' travelling expenses, which, the Joint Travel Regulations:

permitted ‘only if he were on official business. The. court

« cited with approval, Ryan'v. F. ‘arrell, 208 Cal. 200, saa

‘Pac. 945.

Please also See C rooks v. Glen Falls atkins Co.

(1954), 124 Cal. App. 2d 113, 268 P. 2d 203, which hold _

that the test of control is satisfied where the right ta con-.

trol exists and also; Gayton Engineering Co, v.. Industrial

Accident*Commission - (1950), 95 Cal. App. 2d 740, dis-

tinguished by the Court of Appeals ‘in Footnote 12 &

- 88, Appx, 8]. ag

~ Tt is ‘submitted that under the facts and findings ‘all |

elements of control required by the Califorriia Yaw d the

MeV ic ar case are present in the case of petitioners.

mie oe

. —

: % , de :

The Court of Appeals, by Stating That the Relation-

ship of a Member of the Armed Forces to His

Superiors Is Not a Part of His Employment Rela-

tionship, and That the Relationship Cannot Be

Considered as a Factor in Determining Scope of

Employment Under California Law of Respondeat

“Superior Has Decided a Federal Question in Di-

rect Conflict With the Applicable Decisions of

“This Court. | “. .

In Williams Vv. United States (9 Cir., 1954), 215 F. 2d

. 8Q0, a soldier employee committed acts while engaging: in

personal recreation during the period he was off-duty and

sonal recreatiori during the perigd he was off duty and

_ away from his army base on pass. The Court. of Appeals

in that case when discussing the law of California cited -

by the appellant’ thereiri stateduatpage 807 :

“The novel status ‘of a soldier arising sis his pe-

culiar relationship with his government was clearly .

“pointed up by emphatic language of the court in

United States v. Standard Oil of California, 332 U.

S. 301, 305, 306, 309, 310, 67 S. Ct. 1604, 91 L. Ed.

°2067.” ° ia

a rt then went on to hold that where statutory con-

striction yt the Tort Claims ‘Act is involved, Federal

Court ply their, own standards with respect to deter-

mination - a’ relationship. of a government to its. em-

_ ployees.\ It concluded that where a military man was th

alleged servant, the rule of respondeat superior, ‘as ap

in the orthodox master and servant cases, loses its

ardized force.

This court in Williams United States, 350 /-. S. 857,

76S. Ct. 100, 100 L. Ed: 761, granted certiorari and re- -

manded the case i order that the issue of scope of employ-

. ment be determined pursuant to the law of California.

“

_ This’ court also held in United ‘States ¢ v. Aetna Casualt

“and Surety Co., 338 U. 3S. 366,:70 S. Ct. 207, 94 L. Ed.

. 171, that the Tort’ Claims Act, 28 U. S. C. 1346(b), 2671

et seq. indicates ‘a Congressional Intention that the United

. States be treated as a private person, in respect to ee

committed by its employees. 1

_ Petitioners believe it to be implicit’ in the Dove decisions

of this eourt that the Court. of Appeals must consider the

a unique’ ’ “relationship of.a "soldier to his employer in ap-

plying the reel law, just as thé court did in Hinson v.

United States (5 Cir., 1958), 257 F. 2d. 178.

> The Court of Appeals i in the present case has said that

- it will look at the government as a. private employer but

removes from consideration of the rights to control the

servant those rights which arige out of the military rela-

tionship. The court. does not apply any federal law to

‘this situation nor any state law. _ It simply ignores the a

‘situation, and, in so doing; ignores the factual stipula-

tions of the oarties before the Bourt, the findings of the

- court, and the duties of a member of the Armed Forces

[Stip. XI,.R. 34, F. XT, R. 28]. ° Please see the discus-

_sion*of the Court of Appeals | Rep.. 86, Appx. 6; R. 87,

“Appx. 7; R. 90, Appx. 10; R. 91, Appx. iy, ee

It is therefore respectfully submitted that by removing

‘completely from consideration ‘under. the C ulifornia. law ~.

the powers which the _government has: bya akon of the

military relationship: of the parties the Cour

has’ placed itself squarely in conflict with th

Vee rt in the Williams case. The effect of such action

is ‘ey prevent any person in the 9th Circuit {ma case in-

volving similar facts from presesting any aspect of con-

trol arfing out of a military relationship, and, thus, the

decision gi the H ‘illiams casé is rendered ineffectual. For

‘ this reason alone, the court should grant certiofar{,

o ‘ ‘ : ae a

cori

e \

, ‘ \

Se ee een

“

2 5 IV. ~

The Court of Appeals, by Affirming the Grant of the

_ Motion for Summary Judgment Where Several

Genuine Issues of Fact Exist, and (if the Findings

‘of the District Court Are Applicable) by Ignoring

Findings XII and XIV [R. 28] Has so Far De- |

parted From. ‘the Accepted and Usual Course of

Judicial Proceedings and Has so Far Sanctioned:

Such a Departure by.the District Court as to Call

for an Exercise sw 5 veer of Super-

vision..

Rule 56(, c), Rules of Civil Pracedude of Title 28, pro-

vides for summary judgment if there is no ) Beaptine issue

tre,

as toa material ot ; ted

The Court of Appeals in its distaiitias of the: case a

Gayton Engineering Co. v. Indus. Acc. Comm. (1950), 95

‘Cal. App. 2d°740, 213 P. 2d 737, distinguishes that case by °.

reason of certain particular ‘benefits to the employer aris-

ing out Of the employee’s transfer and use of his auto-

mobile [Footnote 12, R. 88, Appx. 8]. Certainly the

yevernment would never stipulate that the se of Frehe’s

car to transport him was beneficial to the united States .

‘Of America or that’ his presence at Fort’ Hood was bene-

ficial to the United States. ‘However, it is clear that such

facts may be inferred from the stipulated facts and from |

the findings themselves. If ,these facts were inferred.

Petitioners’ case would fall’ squarely within the Gayton

| ~. case, and. the @idier would have & be deemed within the

‘scope of his employ ment.

: — It could also be inferred that there was a definite eset”

- to the’ AInited States by reason of. the benefit to the morale

“of the. Armed Forces by permitting the use. of private

automobiles on transfer to a new station; that there .were

_ other persons -in Frehe’s unit, who were- under similar

orders is clear [Stip. XI, R: 34; F. 12, R. 27]. The Dis-

. trict Court certainly considered this to be .an important

factor [R. 51,53]. Is not the holding of. the Court of

Appeals in Murphy v. United States (9 Cir.); 179 F. 2d

743, applicable where, in construing the law. of California,

it held that a soldier, driving an Army truck into town

‘ander authorization of his commanding officer for enter-

. tainment purposes and negligently operating the truck on |

his way to an Indian ceremonial, although not specifically

authorized to go to the ceremonial, was within ‘the course ~

and scope of his employment ?

_ It would seem then that the entire case in the reasoning”

of the District.Court and the Court of Appeals turns on

| the use by Frehe’ of his own vehicle, but the California.

daw is clear thatthe use of: such vetficle with the ‘express

or implied authority of the’ employer will not’ preclude ’

third persons from reaching the employer on the ground

that such act was without the scope of employment.

Ryan v. Farrell, 208 Cal. 200, 280 Pac. 945;

Brown v. Montgomery Ward & Co., 1g Cal. 679,

Ae 286 Pac. 474; :

*. Boynton v. McKales, 139 Cal. App. 2d 77, 292 P.

| ewer 2

Cobk v, Sanger, 110 Cal. App. 90; 293 Pac. 794;

y -. Gayton Engimeering Co. v. Indus! Acc. Comm., 95

Cal. App. 2d 740, 213: Pac: 737;

Marquardt VU: partes, States iD. c. Cal. ), 115 Fed.

Supp. 160; ,

Pureell yv. United States (D: C. Lal), 130 Fed.

. Supp. 882.

, On appeal from motion -granting summary ‘judgment,

_ the only issué before the court is whether the District ~

po ae held that there was no genuine issue as to

any material fact and that the moving party was’ entitled _

to a judgment as a matter of law.

| Dunnington v. First’ Atlantic National Bank of

. Dayton Beach, 195 Fed. 2d 1017.

In view of the facts, the findings, ‘of the District: Coiart,

and the obvious inferences from those facts and findings,

the determination of both the District Court and the Court >

-of Appeals is contrary to the provisions of the Federal .

Rules and the Decisions above enunciated. |

A eres Conclusion. | sacl

We have demonstrated ‘that there are at least four _

cogent reasons which, each separately, require this court

to grant certiorari.

1. - The conflict _ in-the circuits respecting the funda-:

mental approach to the application of the local law to sitd-

ations involving military personnel under the Tort Claims

Act and achieving a conflicting rest while applying

identical law of the jurisdictions—to

2. The injection.intd ts€ law of California of the

erroneous concept: never, before applied by. the California

courts that in travel cases, control of the instrumentality

by the employer i is the touchstone of vicarious liability.

3. The refusal of the Court of Appeals to look at the

relationship ofa military émployee to the Armed Forces

is squarely in conflict with this court's. holding in the

second Wills case. pigs )

4. The _ of the motion for summary jud igment,.

where a question of fact’ on material issues ‘exists. is

such a departure “rom the accepted and usual course of

judicial proceedings as to call for an exercise of this court's

—- er = supervision. |

—33—

A federal question is involved respecting the. interpreta-

tion and application of the Tort. Claims Act. Substantial

numbers of persons are involved in view of the activities

of the Armed Forces: throughout’ the United States and -

the prevalent methad FF permitting private automobil@use

in permanent.change of station. The decision of the Court

of Appeals appears to be contrary to the provisions of the

Joint Travel Regulations for the Armed Forces and un-" ”

doubtedly will be considered in opinions of the Comptroller |

_ General réspecting tra avel,allowances and by the Veterans

“Administration and Armed Forces on the question of line

" @& duty and may. well upset the settled’ law within the

agencies causing unnecessary confusion and results not

contemplated by -the. Court of Appeals when it rendered

its decision. ;

It ‘is to is noted that the present case has been in the

" courts over, two years and that the number of cases under

‘the. Tort Cc ims Act is increasing. “It ig therefore re-

spect fully suggested that direction is required from this

court in order that the questions which have arisen in the

' present.case may be resolved: in future cases.

. a |

We respectfully and earnestly submit that for each of

the reasons presented a writ of certiorari should issue.

Respectfully submitted,

k Louis R. BAKER, | mg

Attorney for Petitioners.

Gaeenpaum, BAKER & ANCEL, Poe

Mark G. ANCEL,

‘Tuomas D. GriFFIn,

Of Counsel.

‘

\ ‘

APPENDIX.

United States Court ef Appeals for the Ninth Circuit.

Excerpt from Proceedings of Monday, June 30, 1958.

Order Directing Filing of Opinion and Filing and

Recording of Judgment.

OrpERED that the typewritten opinion. this day rendere

__ by this court*in above cause be forthwith filed by the clerk.

and that a judgmdnt be filed and.recorded in the minutes

of this court in accordance with the opinion rendered.

wee

4, 4

aitlt Soraya Rimes AGG Ne ne

Opinion of the United States — of Appeals for the

Ninth Ci

United States Court of ii for the Ninth Circuit.

-.Theodore 1. Chapin and Adam Sydlik, Appellate Vs. .

* United States of America, Appellee. M

No. 19811. June 30, 1958.

~ Appeal from the United States District re ourt for-the

Southern District of qlifornia, Central Division.

Before: STEPHENS, Chief: Judge, and ‘Barnes. Circuit

Judge. ;

BARNES, Circuit Judge:

. This is an appeal from a summary judgment in two

_ consolidated actions brought against the United States

in the District Court for the Southern” District of Cali-

fornia pursuant to the Federal Tort Clajars Act. 28 U.S

the issue of scope of employment, and the government ob-

tained a summary judgment — ‘thereon. This.

follov-ed.? om

| oe

On Apr 1956 one Herman H. Frehe, a-private first

class in thé. United States Army, was en route from Nor-

ton: Air’ Force Base, California. tq Ft. Hood. Texas.

traveling in his own. automobile, under competent orders —

appeal

_ Subject to the ‘provisions of chapter !71 of this title, the -

.district courts... shall have exclusive jurisdiction of civil +

_ actions on claims against the United States. for monev damaxes

for injury or loss of property, or personal injury or death

caused by the. negligent or wrongful act or omission of any em-

ployee of the Government while acting ‘within the scope of his

‘office or employment, under circumstances where the United States.

if a private person, would be liable: to the claimant in accordance

‘with the law of the place where the act or omission occurred.”

228 U. S. C. §1291.

ansferring him to Ft: Hood on a permanent change of

station. While so engaged Pfc. Frehe became involved

-in an aceident, in California, with an automobile driven

“by appellant Sydlik in which appellant. Chapin was a

passenger. Frehe’s order’ directed him to proceed on or

‘about April 4, 1956; authorized travel by private auto-

mobile, stating that such “tra,el directed is necessary in”

the military. service ;’ " provided for four days delay en

route; and dtrected -him to report for duty at It. Hood

2, 1956. On these facts the District Court de-

termined that at the time of .the accident Frehe was not.

acting “within the scope of his... employment” and

therefore there was no liability upon the part of the

United States for his conduct. With the case in this

posture there has been no trial on the issue of negligence.

the court below having determined: by summary judgment

that if was without: jurisdiction to grant relief against the

United States.’

Appellants complain of two errors: First, that it was

Improper to grant the motion for summary judgment be-

cause thére exists, a serious dispute over a material fact:

second, that the court erred in determining | ‘that under

the applicable California law Frehe was not acting within -

the scope-of his employment at: the time of the accident.

I. Summary Judyment

We are of the opinion that the District Court was

correct in granting the government's mhoticn for summary

judgment. The ‘disputed “fact” is whether Frehe was

_ acting within the scope of his employment dt the time the

accident occurred. There. may be situations Thvolving

deviation from or abandonment

- from which varying inferences

fan employer's business

igy be drawn; there it is

¢ —_+

properly left: to the trier of fact to determine whether,

the employee. was or was not acting within the scope of

his employment.* But here there are no inferences to be

drawn. There is an agreed set. of facts upon which the

court below could rightly conclude as a matter of law

the 1 issue > of scope of employment. |

The issue before this Court is, therefore, whether a.

member of the armed services of, the United-XStates is

within the scope of his employment, under she alia

California law, when’ traveling by: private automobile on

a permanent change of station pursuant. to. competent

orders authorizing -travel in this manner and_ providing

travel

reimbursement of expenses incurred in the course of

such travel: | :

~ ae Scope of Employment

We are controlled by the California law and the issue

squarely presented is whether her courts would hold that

Frehe was acting within the scope of his employment at

the time “ the accident. Williams v. United States, 1955,

350 U. S. &57; vacating, Williams -v. United States, 9

Cir., ie. 215 F. 2d 800.

The common law doctrine ef respondeat superior has

been maile a part of the statutory law of California. Cal.

. Civ. Code §2338.4 Her courts have developed numerous

tests, applicable in varying situations, designed to. provide

cuides to determine whether an émployee’s conduct falls

®Loper v. Morrison, 1944; 23 Cal. 2d 600, 145 P. 2d 1é

“Unless required by or under the authority of law to employ

that particular agent, a principal is responsible to third persons fur

the negligence of/his agent in the transaction of the business of

“the agency, inclyding wrongful acts committed by such: agent in

-and as a part of the transaction of such business, and jor the will-

ful omission to/ fulfill the obligations. of the principal.”

wile

ewwithin the ambit of section ‘2338. They are accurately

stated in 32 Cal. Jur. 2d, Master & Servant $117:

“The scope of employment depends on a considera- |

tion of what the servant was doing and of why, when,

‘where, and how he was doifig it. The factors to be

considered, include intent of the employee, the nature,

time, and place of his conduct, his actual -and im-

‘plied authority, the work he was hired to do, inci-

dental acts the employer should*reasonably have ex-

pected would be done, and amount of freedom allowed

the employee in performing his duties. . . . Jn the

last analysis, cack case must be determined on its

own peculiar facts and circumstances, together with |

‘the charactey of the employment and the nature of

the wrongtul act.” _ [Emphasis added. ]

. But ho ) single relevant faetor is necessarily controlling.

“|T |he results reached in other decisions are helpful but . |

not necessarily controlling. . . . In each case involving

scope of employment all the relevant circumstances must

be considered and weighed in relation to. oné another.”

Loper.v. Morrison, 1944, 23 Cal. 2d 600, 605, 145 P

aa I, 3, -

The general rules just stated are derived from the many

hundreds of California decisions which have considered the

problem, of scope of employment—a status or _relation-

ship easily labeled but exceedingly difficult of-definition and

analysis. In order to apply these rules ‘correctly, it is.

essential that the factual contexts wut of which they have

arisen be considered. And. in this regard we are of the

opinion that the decisions involving employer liability to_

third persons for tke negligent conduct of an employee

engaged in a permanent change of place of eraployment—*

transfer cases—are the decisions most relev ant and Ww hich

must ultimately control the instant case.° |

We must decide whether the peculiar status of a mem-

ber of the’armed services has any effect on the validity

of-the general riiles already noted; or whether, for the

_ purposes of respondcat superior, his status is. to, be con-

sidered similar to that. of any private employee. .We' dis-

cern no basis in the statute. waiving sovereign immunity

nor in logic for making a distinction which would extend

the scope and application of the doctrine of respondcat

‘superior beyond that traditionally applied to private em-

ployers seneny because the federal government in_ its

military’ capacity finds itself in the role of employer.®

The exclusive jurisdiction conferred on the federal. ro

trict courts by 28 U. S. C. §1346 precludes the courts of

any state from ever passing upon this exact phase of the

‘problem of scope of employment, and thereby deciding”

what is essentially a matter of state policy.” Other

5 Appellants premise the bulk of their arguments upon thgfnon-

transfer cases cited at notes 9 and 10. infra. Se

*But ste 28 U. S.-C. §2671, defining ‘ a >.

ment.” 2

Tt ts altopethies eee that the state courts will he sm

. to determine ‘the analogous problem of traveling state gdyernment

employees, byt the peculiar military status here involved wl prob-

ably never be before them.

Gnce before this same problem was before the Court, but we.

were then not compelled to pass on+it. In Keime ly v. United

States; 9 Cir., 1956, 230 F. 2d \674, the factual elements were in--

distinguishable from the’ case at par. However, the issue of scope

of employment was conceded py the government and it clearly:

appears from the. reported decision that it wag given no consirera-

tion by this. Court: Sine pellant admits . .-. scope of

employment. etc. (p. 675.) Similarly, in Marquardt v.

Ui:ited States, S. D/ Calif., 1953, 115 Ft Supp. 160, scope of em-

ployment was assumed in a “transferred government employee” ,

case. The only Assue there decided was whether combining per- ,

sonal business With the “business”. of his employer was sufficient

remove the employee's conduct. from sand scope of his “employ-

ment.

3 i

—

federal courts, in transfer cases, under the applicable

state law, have faced this issue and have failed to draw

a distinction based upon the unique relationship of a -

soldier to his employer. We are unable to find any

significant differences inthe’ California law of respondcat

superior in this respecf/and therefore conclude that no

such distinction is perly made in the instant case.

« .The question thus posed is whether an employer is liable

for the negligent conduct of an.employee during the period”

of travel’from his former place of employment at- which

his duties. have been terminated to a new place of em-

ployment at which his duties have not, yet commenced.

Certainly this’ situation is entirely unlike those in which

the -employee’s duties require continual travel.’ It is

also dissimilar’ to those cases invaving the so-called

ial errand rule?°’ We do not consider those’ cases\_

helpéll or éontrolling. . . ve

In our view the recent case of MeVi icar v. Union" Oil

Co., 1956, 138 Cal. App. 2d 370, 292 °P. 2d 48, estab-

*Sharpe v. United States, 4’ Cir.,. 1951, 189 F. 2d 239; Fleazer-

United States. 4 Cir., 1949, 177 F. 2d 914: Noe v. United

Siniay E. D. Tenn.., 1956, 136 F. Supp. 639 :\cf. iia v. United

States, S. D. Ohio, 1954, 123 F. Supp. 65. -

°F.g., United States v: Wibya, 9 Cir., 1951. 191 F. 2d 181: Loper ae

Y. Morrison, 1944, 23 Cal. 2d 600, 145 P. 2d 1; R&an v. Farrell,

1929, 208 Cal. 200, 280 Pac. 945; Cook v. Sanger, 1930, 110 Cal.

Cal., 1953, 115 F. Supp. 160.

10F g., Purcell v. United States. N. D. Cal. 1955, 130 F. 'S

_ 882; Vind v. Asamblea Apostolica; Christo Jesus, 1957, 148 Cal.

App. 2d 597, 307 P. 2d 85; Bdynton v. McKales, 1956, 139 Cal.

App. 2d 777, 294 P. 2d 733 :. Loos v. Boston Shoes, 1954, 123

‘Cal. App. 2d 564, 266 P. 2d 884 : Dolinar v. Pedone, 1944, 63 Cal.

App. 2d 169, 146 P. 2d 237; Barton v. McDerniott, 1930, 108

Cal. App. 372,:291.Pac. 591.

. |'See Virid pan Apostolica, Christo Jesus, 1957, 148 Cal.

App. 90, 293 Pac. 794; compare Marquardt v. United States, RA / .

App. 2d 597, 307 P. 2d 85, indicating ee validity of a distinction

_ebased on the “transfer” cases. ‘

Drage

‘ai

Ks 7 —8—

i “sg. lishes_ the governing criteria by which to. determine the

} oe scope of employment status of transferring employees.”

= In the McVicar case an employee of United Ainines was

i __\transferred -from the United facilities at San Krancisco.

. to those at Spokane, Washington. In-route he ‘was in-

| volved in an automobile accident. The employee was paid

! at ark hourly rate, therefore ‘he was not being paid for the

. | eee time spent traveling ; additionally, he was dfaveling ‘on

his days ‘off. However, he was at all times an employee

of United ‘and carried " as such on ‘their, payroll records.

- He was not reimbursed for the gxpense of travel, nor did

* or could his employ er specify. any particular ‘mode of trans-

portation :;: “however; there was evidence that the employee

could -have utilized’ his employer’ s transportation: services

ig without cost to. himself. The First District Court of

? ~ Appeal held that the employee was not acting within the

| scope of his employment during the’time he was traveling

: - from San Francisco to Spokane pursuant to the transfer:

my] The court. reasoned that: . i

“the ‘employer had no right to control or direct [the

employee] as.to time, route, mole of transpor‘ation.

‘or any feature of his going from San Francisco to

s .

12Gayton Engineering Co. v. Industrial Acc. Com., 1950, 95 -Cal.

App. 2d 740, 213 P. 2d 737, is also a “transfer” case. There

death benefits under the Workmens Compensation Act were

- awarded where death of the employee occurred while traveling to

his new place of employment. It may be that-this case *is” more

correctly classified as ‘oue involving: continual travel. See cases

cited at note 9 supra. Assuming it to be a true “transfer” case.

we do not consider it refevant here. Among other distinguishing

features, it is apparent that the'transfer was. especially beneficial

in’ extremely short supply. Additionally; it appears from the

a opinion that the employee's truck, \ hich he was driving at the

Aig time of the accident, was also of special utility to, the employer.

{ _ These factors are missing from the iristant’ case as well as from

McVicar v: Union Oil Co., 1956, 138 Cal. App. 2d 370, 292 P.

2d 48, and are sufficient to distinguish the Gayton decision.

Ee , , aa

/ ¢ ee ; | 4 ‘€: ‘ ' ,

to the employer in that available labor. to perform his services was - .

: * i

bs F . . ts . \

e A a am - wd.

' the act of travel by the employ

92s).

Spokane... He could have gone in an airplane of his

employer free of charge. He ewe gone by bys,

private plane if he had one. He solid start wh fn ‘he

pleased, stop when he pleased and go, by any route

that he pleased so long’ as he arrived in Spokane. in

time to report for work on December 1... His: em-

ployer not only had no right to%lirect him to: goby

‘. any particular means of transpo¥tation but also no

_.a car with faulty or no brakes and his employer had

noe right to interfere. - To put the test of the cited case,

_.if instructions were given they ee” al have been

“obeyed.” Id: at 373, 292 P. 2d at

The opinion then goes on to cite as ‘‘a case nearly in point

United States v. Sharpe, :4 Cir., 1951, 189.F: 2d 239. -

Sharpe involved a soldier traveling under Orders’ to re-

port at a date certain, ‘but without « arly allowance fdr

expenses. The essence of the Sharpe case is that while

by ‘self-selected means with competent orders cofcerned

only with the ultimate rgporting date, a soldier is. not,

acting within the scope of his: emiployment in the sense

required for application ‘of the doctrine of respondeat

superior.

We conclude the basis of the McVicar case to be that

js not one subject to the

if the duties the employee

employer's control as a part

was hired to petform. , Simj

travel on a permanent change of station is nota part of

' the duties for which he is engaged. It is conduct the

controll of which is beyond , the terms of the employment

relationship.

Appellants argue the MeV icar case is inapposite be-

cause the army, so say sep, could have prohibited

rly, the act of a soldier's’

we > a

Vntiy) qe eR nar bases

a .

—-10— |

-Pfe. Frehe from traveling by private “ automobile and

-could have directed that he travel by, some other. ‘specific

mdde -of transporation. This -argument is not sufficient

to ‘support a conclusion. that Frehe was acting within the

“scope of his employment at the time of the accident. _The

ability to-control must arise out of the employment rela-

tionship.” The. government’ s ability ‘to control Pfc.

_Frehe’s ement arose not out of its status as an em-

ployer, eby virtue of its ‘military capacity. In our

view the necessary element of control relates to the parti-

cular’ functions. tor which the’ employee was hired and

cannot be supplied by “the unique military status. The

soldier's” obligation to ‘hold himself ready for instant

obedience to the commands of hig superiors is the concern

only of the army and the soldier; this unique obligation

is totally ‘unrelated to: any - conduct affecting these appel-

—lants or others . similarly situated. As an employer, the

- army could not direct the manner in which Frehe drove his

car’ or its nechanica! | fitness for the trip." The Joint -

Travel Regulations’ ‘cited by appellants rieither compel

nor prohibit travel in a particular ‘manner or by a parti‘

cular mode. .. They provide nothing more than a basis for

reimbursement of. expenses incurred, ‘if the directives

issued thereunder are wed. Thus the authorization

to travel by private automobile was not an order and need

18See -Carr- v. Crowell, 1946, 28 Cal. 2d 652, 171 P. 2d §, in-

volving: an intentional tort by an employee arising out of ‘he per-

formance of‘ the duties for which he was employ ed.

veal this limited extent Finding XIV to t ‘e contrary is erroneo's*.

1510) U, S..C. $1363 "places the transportation of troops under the

immediate, supervision and control of the Secretary of thy’ Army.

37 U- S. G. $253 autharizes travel pay and allowances pursuant to- .

uniform regulations issued by the armed services. Section: 4150

et seq. of the Joint Travel — are the provisions here

erate

* not ‘have been followed. The° army ’s only” concern was

that Frehe report for. duty at Ft: Hood on April 12,-

1956."° The mode and manner of travel was purely of

his own choosing and-for his own benefit. Under these

circumstances we can see no.basis in the. California deci-.

sions ‘which. compel a conclusion that tae act of travel

by Pfc.. Frehe. was ‘within the scope of his employment

so ‘as to create” ability upon the part of the government :

to third par Parties injured by Frehe’s conduct.

Within the -limitations of the Erie" doctrine, we must

| inalyze all relevant factors to determine. the course ‘of

' action the highest state — would take, were it squarely

. presented. with the issue.’ a distinction approved in’

Jo2wiak v. United States, S. D. Ohio, 1954, 123 F. Supp.

65, at 69, accurately states the California law 2 as we view

it> : ‘ ? } s

- % here i is a clear distinction between acts done within’

the scope of employment ‘and acts done merely, during

the. empldyment.”

' Pfc, Frehe’s duties were to be performed at his post.!”

At the time of the accidént his duties had terminated at

Norton Air— Force Base and had not yet: begun at Ft.

. Hood. Unless a ‘soldier. is. to. be considered peculiarly

different frorn, other employees of the government for the -

purposes. of respondeat superior, the activity of traveling

between permanent duty stations | is “merely during’ em-

eee : . + . po : 4/8 Put

‘6The subsequént revocation and-re-issue of Pfc. Frehe's travel

orders -has no materia! bearing upon our awe

. “Erie R.R. v. Tompkins,, 1938, 304 U.

'8Barnhardt v. Polygraphig, Co., 1956, 350 U. S. 198, 205, 45

Calif. L. Rev: 87 (1957).

*8Compare Purcell v. United States, N.._D. Cal., "1085, 130 F-

Supp. 882.

ae - ie:

o eyment” ‘and not within the scope of employment. As .

already indicated, we have found tio reasonable |basis in

California law for such a distinction. 7 |

Thewdecision of the District Court is affirmed.

(Judge Lemmori heard this case, but died before de-

cision. The matter, therefore,. has beet decided by the

‘other’ two members -of the panel.) Baal

( Endorsed ) Opinion. Filed June 30, 1958,

Pau P.4’ BRIEN, Clerk.

United States Court of Appeals for the Ninth: Circuit.

_ Theodore J. Chapin and Adam Sydlik, Appellants> vs.

- United States of America, Appelice. No. 15511.

Judgment. e

Appeal from the United States District Court for the

Southern District of California, Central’ Division.

This cause came on to be heard on’ the transcript -of

the record from the United States District Court for the

Southern Listrict of California, Central Division, and

was duly submitted. a a ? ~

On Consideration Whereof, It, is now here ordered

and adjudged by this court, that eg of the said |

District Court ‘in this cause be, and hereby is affirmed.

_, (Badorsed) Judgment.’ Filed “and entered June 27,

1958. if | |

Paut P. O’Brien, Clerk.

‘

rr.

—14—

United States Court of Appeals for the Ninth Circuit.

-Excerpt from proceedings of Friday, October 17, 1958.

| Order Denying Petition for Rehearing.

Upon consideration ‘thereof, and by direction of the

- Court, IT Ig ORDERED that the petition of appellants, filed

- August 249958, and within time allowed therefor by rule

above cause be, and hereby is denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.