The opinion of the court was delivered by: FORMAN
This is an action brought against the United States in accordance with the provisions of the Federal Tort Claim Act, Act of August 2, 1946, Chapter 753, § 401 et seq., 60 Stat. 842, as amended, 28 U.S.C.A. § 2671 et seq.
The following facts were produced at the trial: On Friday, February 15, 1946, between 8:15 and 8:30 P.M., Mrs. Nellie Siciliano was operating a Dodge sedan, owned by her husband, Anthony Siciliano, in which her daughter Josephine, then 14 years of age, was a passenger. Mrs. Siciliano was proceeding in an easterly direction on Monroe Avenue, Asbury Park, New Jersey and approached its intersection with Langford Street. A Navy jeep, U.S.N. #133020, was proceeding in a northerly direction on Langford Street. The two vehicles collided at the intersection. The Navy vehicle struck the automobile driven by Mrs. Siciliano with such force that the car turned around two or three times and came to rest near a tree on the north side of Monroe Avenue some 35 to 40 feet from the northeast corner of Monroe Avenue and Langford Street.
At the trial, Kiah testified that the Navy vehicle in question had been dispatched from the Naval Ammunition Depot in Earle, New Jersey, with him as driver, for the purpose of delivering motion picture film to a U.S.O. Club in Asbury Park and that he had picked up Theopholis Wilson, then a member of the naval service and stationed with Kiah at the Naval Ammunition Depot, while on the way to the Club. Wilson was a registered driver but did not have his naval registration card with him at the time of the accident. Kiah offered Wilson a ride back to their station. After delivering the film he permitted Wilson to drive the vehicle although it was in his charge as a driver. It was while proceeding back to their proper station with Wilson actually driving that the accident occurred. Kiah stated that the reason he told the Asbury Park police officers that he, Kiah, was driving the car when the accident occurred was to protect Wilson from possible punishment. He admitted having informed hospital officials that he was the driver of the vehicle.
Another witness, a former Lieutenant Commander in the Navy and Kiah's immediate superior at the time of the accident, testified that the vehicle had been dispatched with Kiah as driver on the date of the accident, that it was Kiah's duty to drive the vehicle, and that Kiah was without authority to permit a substitute to drive it.
The defendant contends that Kiah departed from his status as its agent when he turned the operation of its vehicle over to Wilson and that therefore it was not liable for the injuries and damages suffered by the plaintiffs.
The Federal Tort Claims Act authorizes this court to hear claims against the United States for damages caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment. 28 U.S.C.A. § 1346(b). The Act further states that "Acting within the scope of his offict (office) or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty.' 28 U.S.C.A. § 2671. It is provided in 28 U.S.C.A. § 1346(b) that the liability of the United States is governed by 'the law of the place where the act or omission occurred.' The alleged negligent acts in this case are therefore governed by the law of the State of New Jersey.
In the case of United States v. Campbell, 5 Cir., 172 F.2d 500, the court stated:
'The whole structure and content of the Federal Tort Claims Act makes it crystal clear that in enacting it and thus subjecting the Government to suit in tort, the Congress was undertaking with the greatest precision to measure and limit the liability of the Government, under the doctrine of respondent superior, in the same manner and to the same extent as the liability of private persons under that doctrine were measured and limited in the various states. The very heart and substance of the act is to be found in the words, 'scope of his office or employment,' not as appellee would read them when wrenched out of their context, but as they are precisely limited in it to the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the state where the injury occurred.' 172 F.2d at page 503.
Since the Act is designed to hold the government liable 'in the same manner and to the same extent as the liability of private persons' under the doctrine of respondeat superior as that doctrine is 'measured and limited in the various states' it appears that the New Jersey law of agency is applicable.
New Jersey law holds that the employer is liable for the torts of the employee when acting within the scope of his authority under the theory of respondeat superior. Van Horn v. Gibson, 133 N.J.L. 406, 410, 44 A.2d 497. To relieve the employer from liability for the tort committed upon a third person, the act done by the employee must have been totally disconnected from the employment. Celidonio v. A. Z. Motors Co., Inc., 121 N.J.L. 377, 2 A.2d 877. Where the employee does an act for his own benefit or to answer some capricious purpose of his own, the employer is not liable. Arrington v. White, 126 N.J.L. 551, 19 A.2d 627. But in that case it was further stated:
'Liability is determined not by the taking on of riders or making an undirected stop along the way or by the circumstance of deviation from the direct route, but upon whether or not the act, be it of deviation or otherwise, was, per se, so disconnected from the master's service as to exonerate the master from liability. The rule has been frequently stated and variously applied.' (Cases cited.) 126 N.J.L.at page 553, 19 A.2d at page 628.
In this case there was no substantial deviation from the prescribed route to be taken and service to be performed by Kiah and the vehicle was being put to the proper use- namely its return to its station at the time the accident occurred.
An employee may not delegate his authority without the express or implied consent of the employer. Titus & Scudder v. Cairo & Fulton R. Co., 46 N.J.L. 393. But there seems to have been an exception carved out in the case of Conway v. Pickering et al., 111 N.J.L. 15, 166 A. 76. In that case 'Pickering, having broken his glasses, procured the services of Wiegand to drive the car for him; this without the knowledge or approval of the Courier-Post Company', his employer. The ...