was committed while the soldier was 'acting in line of (military) duty.' This careful delineation provides a clear line of demarcation between Government liability for a soldier's torts and the area of general liability of a private employer for torts of his employees in classical 'master and servant' cases where the rule of respondeat superior is normally applied.' Williams v. United States, supra, 215 F.2d at page 807.
Plaintiffs must establish by affirmative evidence that the Government employee was acting not for some independent and personal reason, but was acting to further the official purposes of the Government. United States v. Lushbough, 8 Cir., 1952, 200 F.2d 717, 720-721; Field v. United States, supra, 107 F.Supp. at pages 402-405; United States v. Inmon, supra, 205 F.2d at page 684.
We cannot overlook the fact that:
'* * * Congress made abundantly plain that federal liability can arise only when the tortious act was committed at a time when the tort feasor member of our military or naval forces was actually 'acting in line of duty.' Unless we are prepared to utterly disregard this mandate and refuse to conform to its obvious meaning, we must (as we do in this case) hold that 'acting in line of duty' means acting in line of military duty.' Williams v. United States, supra, 215 F.2d at page 808.
The Court is unable to perceive how Sergeant Graves was acting in the scope of his employment when he took an army truck, while he was 'off-duty', without authorization, without trip tickets stamped 'off-post', allegedly to get a haircut in Bowling Green. Whether or not he could have obtained the required trip tickets retroactively to cover the trip is not controlling, for a loose army practice of issuing trip tickets does not convert a personal excursion into one in line of military duty. We cannot:
'* * * close our eyes and agree that a loose post 'practice' of 'passing around' trip tickets issued only for official use, (when the actual use is not for official business) in some undisclosed way transformed the use * * * into an authorized 'official use'.' Williams v. United States, supra, 215 F.2d at page 808.
While we doubt that one going to get a haircut under the prevailing circumstances would be acting in line of official duty, we need not reach this issue as plaintiffs have failed to establish exactly what Sergeant Graves was doing at the time of the accident. If, as plaintiffs contend, he went to Bowling Green about 9:00 P.M., found the barbershop closed, went to Maud's Grill, staying no more than fifteen minutes, and then immediately started back for Travis Lake, it would seem that Sergeant Graves should have been going north at the time of the accident -- the same direction in which plaintiffs were traveling. In that event, plaintiffs' theory of negligence would fall. But the evidence indicates he was going south. For some unexplained reason he had either been to Bowling Green and was again going there, or he had never been to Bowling Green and was going there for the first time on some venture unknown to the Court. Whatever official military business was involved fails to appear. This, read in light of the fact that Sergeant Graves was off-duty, subject to the control of no one but himself, on an unauthorized mission, makes it unreasonable to conclude that Graves was acting in the scope of his employment at the time of the accident.
Under the Federal Tort Claims Act the Government has waived its sovereign immunity only as to those claims falling squarely within the four corners of the Act. Though the temptation is sometimes acute, we are not to substitute personal compassion for the considered and written intent of Congress. To grant plaintiffs' relief would be to materially enlarge that qualifying phrase of the act which limits Government liability to wrongful acts of its employees committed within the scope of such employment or office -- in the case of the military, in line of duty.
Upon consideration of the oral arguments and written briefs, and upon all the evidence presented in open court and filed here, the Court concludes plaintiffs have failed in their burden of proof to establish that defendant was within the scope of his employment at the time of the accident. Other issues involved herein therefore become moot.
Counsel for the Government will prepare an order consistent with these findings.