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KIMBALL v. UNITED STATES

January 17, 1967

Stephen R. KIMBALL, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: COHEN

 The primary issue in this personal injury negligence action, under the Federal Tort Claims Act, *fn1" is whether the United States is vicariously liable under the doctrine of respondeat superior for the alleged negligent operation of the privately owned automobile of a United States soldier reporting late for duty who, it is claimed, was an employee "acting within the scope of his office or employment" at the time of a collision between his automobile and that of another in which the plaintiff, Stephen R. Kimball, was a passenger.

 The liability phase of the case was tried to the Court and the testimony revealed the following: Sergeant Luther P. Mosley, the employee in question, was stationed in Fort McNair, Washington, D.C. Prior to October 22, 1962 he was advised of his permanent transfer to an army unit in Germany. He requested and received, on October 22, 1962, a 30-day delay en route which was to commence 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.

 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."

 In keeping with the conclusion reached in Chapin, supra, Sergeant Mosley's duties were to be performed at his new post. At the time of the accident his duties had terminated at Fort McNair and he had not yet begun them at Fort Dix. As stated in Chapin, 258 F.2d at pages 470-471:

 
"Unless a soldier is to be considered peculiarly different from other employees of the government for the purposes of respondeat superior, the activity of traveling between permanent duty stations is 'merely during employment' and not within the scope of employment." Citing Jozwiak v. United States, 123 F. Supp. 65 (S.D.Ohio E.D.1954).

 In his effort to impose liability upon the United States, the plaintiff relies heavily upon United States v. Kennedy, 230 F.2d 674 (9 Cir. 1956) and O'Brien v. United States, 236 F. Supp. 792 (D. Maine 1964). These cases are distinguishable. In Kennedy, the accident occurred during the soldier's leave time while he was en route to an assigned new post and the Government admitted by answer that he was acting within the scope of his employment. In the instant case, the soldier's leave had expired and the Government denies that he was acting within the scope of his employment, contending rather that, after detour and delay devoted to his own purposes, he had not as yet returned to his assigned employment. In O'Brien, the serviceman was on direct route to a new station. He had a 13-day travel and 30-day delay, or leave, before reporting. He had planned to leave his wife in Wisconsin while still on direct route, but two days after beginning his trip, he was involved in an accident while in Maine before the contemplated deviation to Wisconsin. The Court found dual purpose and scope within the meaning of Maine law for the purposes of respondeat superior. In the instant case, deviation or detour had been completed as well as an awol status acquired before a belated reentry into an active scope of employment status at Fort Dix, New Jersey. It is logically inconceivable that an awol soldier is to be considered in the eyes of the law on the business of the United States for the purpose of imposing liability upon the United States on agency principles. To hold otherwise would be to vicariously impose upon it strict liability contrary to the Federal Tort Claims Act, supra, which places the United States through its express statutory consent in the role of any other private employer for liability purposes.

 While the law of the State of New Jersey controls in the determination of the agency question of "scope of employment," there are no reported cases of that State pertaining to United States military personnel, as in the instant case, because under the Federal Tort Claims Act, the United States Courts have original jurisdiction. Therefore, the substantive law of New Jersey will be of assistance by way of analogy, and the federal decisions persuasive where the question of scope of employment has been considered.

 Under New Jersey law, mere employment does not of itself impose tort liability upon an employer. The test for the imposition of liability is whether the employee at the time and place in question is on the assigned business of his employer. Kohl v. Albert Lifson & Sons, 128 N.J.L. 373, 25 A.2d 925, 140 A.L.R. 1146 (E. & A.1942); Muckin v. Hubbs, et al., 128 N.J.L. 395, 26 A.2d 286 (E. & A.1942). Although New Jersey applies the "dual purpose" rule of joint or mutual interest, such as where a concurrent cause of the trip is in furtherance of the employer's interests and business as a concurrent cause of the trip, to hold that the employee is within the "scope of employment," even then, the perimeter of "scope" is confined to instances where the employee is required by the employer to use a particular vehicle. See: Cinque v. Crown Oil Corp., 135 N.J.L. 38, 48 A.2d 777 (E. & A.1946) and Hebrank v. Parsons, 88 N.J.Super. 406, 212 A.2d 579 (App.Div.1965). The New Jersey law provides that if an employee is returning to his place of employment to perform an assigned task and the act of returning itself does not further the business interests of his employer, then he is not in "scope" until such time as he reaches the place assigned for his work. Krolak v. Chicago Express, 10 N.J.Super. 60, 76 A.2d 266 (App.Div.1950). So also where the conduct of ...


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