at 12:01 A.M., November 14, 1962 and was to terminate at noon on December 14, 1962, at which time he was to report to the Overseas Replacement Station at Fort Dix, New Jersey. Sergeant Mosley was permitted to choose any means of transportation, public or private, from Fort McNair to Fort Dix, the order authorizing the leave being silent as to the means of transportation. He was authorized travel allowance to the extent of 6 cents per mile for a direct trip from Fort McNair to Fort Dix regardless of the actual cost, the mode of travel or the route actually taken. He left Fort McNair on November 14, 1962 and drove his privately owned automobile to Texas and Colorado on his own personal business. December 9, 1962, he left Colorado and returned to Fort McNair, Washington, D.C., on December 13, 1962 for the purpose of gathering together his clothing and belongings prior to reporting to Fort Dix. He spent the night at Fort McNair. He testified that he had the impression that, despite the written order requiring him to report to Fort Dix at noon December 14, 1962, he could automatically extend his reporting time to midnight December 15, 1962. In addition to a 30-day leave, he testified that he thought he also had one further day of travel time and "one day of grace," as a matter of military custom, thus making a total of 32 days. During the morning of December 14, 1962 he made inquiry of an unidentified sergeant at the Personnel Office in Fort McNair as to the time he was required to report to Fort Dix and said he was informed he had until midnight of December 15, 1962. To the contrary was the testimony of Captain Klein, Chief of Military Personnel, who stated that no written military order can be modified except by a commanding officer; that any so-called "grace period" is non-existent; that the travel time was included in the 30-day leave, which expired on December 14, 1962 at noon; and that any failure to report as ordered resulted in a status of his being absent without leave.
On December 15, 1962 at 3:55 a.m.., at which time Mosley was then more than 15 hours overdue, while en route from Fort McNair, Washington, D.C., to Fort Dix, at a point between Exits 3 and 4 on the New Jersey Turnpike, his automobile was involved in a collision with another vehicle. Following the accident, Mosley reported for duty at Fort Dix at approximately 7:30 A.M. on December 15, 1962. No disciplinary action was instituted against him for his belated arrival.
The plaintiff urges that at the time of the accident in question, even if then late in reporting for duty, Sergeant Mosley was "acting within the scope of his office or employment," since his sole purpose in traveling to Fort Dix was in compliance with military orders. He concedes that had this accident occurred in Texas or Colorado where Mosley was pursuing his personal affairs, then no liability could be visited upon the United States. However, he contends that when, on December 9th, 1962, Mosley left Colorado and proceeded to Fort Dix, New Jersey, via Fort McNair, Washington, D.C., he had reentered upon his master's business. The plaintiff maintains that the relocation of military personnel is a common occurrence and is a fundamental factor in the operation of the Army's affairs and done strictly in compliance with military travel orders over which a soldier has no control. He argues, therefore, that the United States is responsible for any negligent act committed by its employee during the course of travel under military orders under the doctrine of respondeat superior.
The position of the defendant, United States of America, is that there was no agency or respondent superior relationship between it and Sergeant Mosley at the time of the accident in question, and, therefore, it is not liable to the plaintiff for his injuries.
Scope of employment determinations are governed by the respondeat superior doctrine of state law. Williams v. United States, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761 (1955); 28 U.S.C. § 1346. New Jersey law would be applicable, but the State Courts have no jurisdiction over claims against the United States. Accordingly, no strictly analogous situation is to be found in New Jersey cases. Nor do any reported decisions applying New Jersey state law in a similar fact situation appear in this Circuit. It is necessary, therefore, to apply the New Jersey law of respondeat superior and to look to other jurisdictions where decisions were based upon the unique military relationship. Under the Federal Tort Claims Act, supra, the United States is to be treated as any other private employer. The use of the term "line of duty," contained therein, does not expand the area of the Government's liability for acts of its employees beyond traditional concepts. United States v. Campbell, 172 F.2d 500 (5 Cir. 1949), cert. den. 337 U.S. 957, 69 S. Ct. 1532, 93 L. Ed. 1757; United States v. Eleazer, 177 F.2d 914 (4 Cir. 1949), cert. den. 339 U.S. 903, 70 S. Ct. 517, 94 L. Ed. 1333.
Initially, distinction is to be made between a permanent change of station (PCS) and a trip for temporary duty (TDY). In the former, a soldier permanently assigned to one station is permanently transferred to another. In the latter, a soldier permanently assigned to one station is ordered to another station on a temporary basis to perform a specific task upon the completion of which he is to return to his home or permanent station. Cases involving TDY have often found a serviceman "within the scope of his [office or] employment" while traveling between his permanent and temporary stations. Satterwhite v. Bocelato, 130 F. Supp. 825 (E.D.N.Car.1955); Marquardt v. United States, 115 F. Supp. 160 (S.D.Cal.1953); Hopper v. United States, 122 F. Supp. 181 (E.D.Tenn.1953), aff'd per curiam, 6 Cir., 214 F.2d 129. In PCS cases, it has been generally held, especially with a delay en route, that a serviceman is not within the scope of his employment during the period within which he leaves one permanent station and reports to another. In between, his status is to be considered the same as a private employee on leave or on vacation. The rationale of these decisions is that when a serviceman is permanently transferred from one station to another, with a delay en route, he is a free agent acting for his own personal benefit during the delay or leave, and thus not furthering the interests of the United States, nor subject to its right of control. See United States v. Eleazer, supra, wherein it was also held that the reimbursement of travel expenses was irrelevant, and did not impose liability. See also Noe v. United States, 136 F. Supp. 639 (E.D.Tenn.1956). In Chapin v. United States, 258 F.2d 465, at 469-470 (9 Cir. 1958), cert. den. 359 U.S. 924, 79 S. Ct. 607, 3 L. Ed. 2d 627 reh. den. 359 U.S. 976, 79 S. Ct. 875, 3 L. Ed. 2d 843 (1959), it was held:
"* * * [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. It is conduct the control of which is beyond the terms of employment."