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January 28, 1955

Margaret BAKER, Administratrix, Estate of Dot John Baker, deceased, and State Farm Mutual Automobile Insurance Company, a corporation, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: YOUNGDAHL

Plaintiffs bring this action against the United States under the Federal Tort Claims Act, 28 U.S.C.A ยง 1346(b), to recover damages suffered in an automobile collision with an army truck. *fn1"

On February 23, 1952, at nighttime, between 10:15 and 10:30, as plaintiffs were proceeding north along Route No. 2, Caroline County, Virginia, in two cars, some two and one-half miles north of Bowling Green, Virginia, the lead car was struck by an army truck which then proceeded to collide with the rear civilian car in a head-on direction. The army truck was driven by one Sergeant Graves who was stationed at the time at Camp A. P. Hill, Virginia, as a caretaker.

 Counsel stipulated that all three cases be consolidated.

 At the time of the accident, Sergeant Graves was assigned a truck for use in connection with his duties as caretaker of the A. P. Hill Army Reservation. He was permitted to go off post with the vehicle only after receiving special authorization accompanied by a trip ticket stamped 'off-post'. *fn3"

 On the day of the accident, Sergeant Graves was 'present for duty' from 0100 to 2400, meaning that he was not confined, in sick bay, or A.W.O.L. He was 'on-duty' during the day until 5:00 P.M. At about 7:00 P.M. he drove to the Post Headquarters on the Reservation in the truck, chatted for a while with the switchboard operator, then left for Bowling Green about 9:00 P.M., allegedly to get a haircut. Sergeant Graves had no trip ticket nor any type of authorization for the trip.

 There is a conflict in testimony as to the direction in which the Sergeant was traveling at the time of the accident; he says he was going north, back to the army post; plaintiffs maintain that they were going north, that the army truck was going south and hit them in a head-on direction. In fact, plaintiffs can only sustain their theory of negligence upon the premise that Graves was traveling south, away from the Post.

 Plaintiffs contend that Sergeant Graves was negligent; that since the Government owned the truck and Graves was an employee of the Government, the defendant must overcome the presumption, under Virginia law, that such ownership and employment creates an agency relationship, thereby fixing Graves within the scope of his employment for purposes of the Tort Claims Act; that the Government has failed to rebut this presumption; that Graves' continuous possession of the truck for such use as making a seven-mile trip from Travis Lake, where he lived, three times a day for his meals, indicates that the truck was to be used for general necessities, such as getting a haircut at Bowling Green when needed; that while trip tickets were required even to get meals (and if Graves were to go off base with the truck, for any purpose, these trip tickets would have to be stamped 'off-post') it was an accepted practice to have this formality carried out in advance as well as retroactively; that on the day of the accident there was no dispatcher available to distribute or stamp the needed trip tickets, but had one been available the ticket would have been stamped at that time in line with the usual practice to issue trip tickets to go to Bowling Green, and had there been no accident, trip tickets would have been issued Monday to cover the week end. Realistically appraised, assert plaintiffs, Graves' unrestricted use of the vehicle for a broad range of legitimate purposes must logically be considered to cover a trip to Bowling Green to get a needed haircut, unobtainable on the Post. This, plaintiffs urge, combined with the prevailing practice of issuing trip tickets for such purpose, places Graves within the scope of his employment and makes the Government liable for his negligence.

 The Government contends that even if negligence be found, the plaintiffs have failed to prove that Graves was acting within the scope of his employment, as required to hold the Government liable; rather, he was on a frolic of his own, serving no official purpose or business of the Government; that the mere fact he was a soldier is not sufficient to establish agency, but rather the plaintiffs must prove by preponderance of the evidence that Sergeant Graves was engaged in his master's business at the time of the accident; that they have failed to do so, since it is uncertain as to what Graves was really doing at the time of the accident, and if it were to get a haircut, this is personal and not official business; that while Graves' failure to obtain trip tickets indicates the unofficial nature of the trip, even if he could have gotten them according to prevailing practices, this would not make his mission official, for no superior officer may authorize the use of an army vehicle for such an unofficial mission. The Government also asserts that the question of scope of employment must be determined by federal law and not Virginia law, and since Graves was not serving his master, nor intending to do so, since no actual control or right to control existed; since he was acting subject to no orders at a time when he was off-duty, the Government is not liable.

 The Court is satisfied that Sergeant Graves was going south at the time of the accident and that it was his negligence which caused the accident. Whether or not he was acting within the scope of his employment is the critical issue. This question is not to be determined by Virginia law. Plaintiffs, in seeking to make use of the presumption of agency under Virginia law, have confused the question of liability as to negligence with the question of whether the activity causing the injury was committed within the scope of employment. In United States v. Sharpe, 4 Cir., 1951, 189 F.2d 239, 241, involving a question of whether an army sergeant involved in an automobile accident was acting within the scope of his employment, the Court decided that the issue of scope of employment was one of statutory construction as to which the federal courts were not bound by local decisions but apply their own standards. It was there stated:

 'We look to the federal law and decisions to determine whether or not the person who inflicted the injury was an 'employee of the Government * * * within the scope of his office or employment.' We look to the local law for the purpose of determining whether the act with which he is charged gives rise to liability. The Tort Claims Act adopts the local law for the purpose of defining tort liability, not for the purpose of determining the relationship of the government to its employees.'

 This rule finds support in many cases. Williams v. United States, 9 Cir., 1954, 215 F.2d 800, 806-810; United States v. Inmon, 5 Cir., 1953, 205 F.2d 681, 684; Field v. United States, D.C.N.D.Ill. 1952, 107 F.Supp. 401, 403-405; Hubsch v. United States, 5 Cir., 1949, 174 F.2d 7, 9-10.

 Not only is there no presumption of agency in the federal courts on the basis of ownership or employment, but the doctrine of respondeat superior, as applied to the military, is narrowly construed under the Tort Claims Act:

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