# Petition for Writ of Certiorari — Chapin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0705%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 359 U.S. 924 ## Text & fe COPY st opice Supreme Court, WS. ' MO lee ¢ ag Oe lt & t i : 5s ‘ : * xs - § ; e oo JAN 1 4 195% IN THE |: _Augreme Court of of the United tates vam Lass — since fri Dag ack : a a " OcroBeR TERM, hose oe ty Vo ei ‘a Ne. 644 cA a Sa” “ t : ; Tiitopore’ J. Ciaran and ApamM Sypirk af Petitioners, a ee vs. ae Unirep STATES 01 > AMER “A, Respondent. Petition for Writ ‘of, Cerdareel ‘to he United States Court of Appeals for ~ Ninth Circuit.’ ”, — rsa & ; \ : *o, . \ Louis R.- BAKER, ; ” 403. West Eighth Street, Losxfiveles 14,. California Counsel for Petitioners Fheodore J... |: ee: ‘Chapin and sldam Sydlik. ’ = (; !NBAUM, BAKER & Ascii. ix G. ANCEL, | Te oMAS .D. Grierty, & | VE Counsel. ‘ , = “ies . . A . Ly ? | | a . , s ae : a * . . : 7 *. oe o . J roo ; | jm Varker & Som Inc « . law I'rinters, Los_ Angeles. Phone MA. 6-9171 os ¢ 4 ra w ~~“ 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 | - 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]. a > 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. —— a? ‘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 a . 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. 4? —_ 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 Fa 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 t 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 e: = 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. 2 | 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 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 a . — : % , 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. AN a “ _ 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 as ? cori e \ , ‘ \ Se ee een “ ° ee 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- x ~, 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 ? a _ 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 ~ f ay o. ae 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 a: Pa aitlt Soraya Rimes AGG Ne ne a 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 ©. $1346(b).’. The parties stipulated the facts concerning 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 — A) 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 . 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). 4 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 . right to-forbid him to“do so. He could have driven © _.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 t * rly, the act of a soldier's’ 3 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. é 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 to * 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. s . a: oe e) 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. 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 of court and valid extension thereof, for a rehearing of © above cause be, and hereby is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0705%3A2. Public record. Not legal advice.