The opinion of the court was delivered by: YOUNGDAHL
This action arises out of an automobile collision between an automobile driven by Dot John Baker, deceased, and an army pick-up truck driven by Sergeant Levi H. Graves on Route 2, Caroline County, Virginia, some two and one-half miles north of Bowling Green, Virginia. Plaintiffs are seeking recovery under the Federal Tort Claims Act.
When tried originally before this Court, judgment was rendered for the defendants. The Court ruled that Sgt. Graves was negligent, but under the Federal law then applicable, he was not acting within the scope of his employment so as to hold the Government liable for his negligence.
Subsequent to this decision the United States Supreme Court decided Williams v. United States,
which arose out of a substantially similar situation, and held that state rather than federal law with respect to respondeat superior should apply.
On the basis of this Supreme Court decision, the Court of Appeals for the District of Columbia reversed the previous decision of this Court and remanded for the application of Virginia law (the law of the site of the accident) to the agency question.
The Court has heard further argument on the applicable Virginia law and on damages. No further testimony was taken since it was agreed by both parties that the case should be submitted for the Court's decision on the original record.
The Court finds that Sgt. Graves was negligent and that his negligence proximately caused the injuries and death of the respective plaintiffs. The Court finds that Sgt. Graves was going sough toward Bowling Green at the time of the accident; that he cut into the lane of oncoming traffic and struck a lead vehicle driven by the deceased's brother and then collided head-on into the vehicle driven by the deceased. The plaintiffs were not contributorily negligent. The facts supporting these legal conclusions are more fully reported in the Court's previous opinion
and they are specifically made a part of this memorandum by reference.
On the agency question, the Court found in its original opinion that the facts were unclear and therefore the plaintiff had not sustained the burden -- which was his under the then applicable federal law -- of proving the respondeat superior relationship. The Court said:
'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. * * * For some unexplained reason he had either been to Bowling Green and was again going there, or had never been to Bowling Green and was going there for the first time on some venture unknown to the Court. * * * 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.'
More recently the Virginia Supreme Court reiterated this language: 'Defendants admitted that they owned the truck and that Wynn was employed by them. There was, therefore, a rebuttable presumption that at the time of the accident the truck was being driven in their service; but this presumption disappears in the face of positive facts to the contrary.'
It is, therefore, under Virginia law the government's burden to prove by positive facts that the presumption of agency is false in this case.
The Court has carefully examined the record of this case and considered the arguments of counsel and adheres to its original finding that the facts with respect to the question of whether Sergeant Graves was acting within the scope of his employment are unclear. The Court finds that, applying Virginia law, the government has not rebutted the presumption of agency which is present.
On the one hand, Sergeant Graves testified that he had gone to Bowling Green, without a trip ticket, to get a haircut and he was returning, going north, when the accident occurred. At the same time, based on the testimony of the police officer who investigated the case and the testimony of the passengers in the preceding car, the Court finds as a matter of fact that Sergeant Graves was travelling south, toward Bowling Green, at the time of the accident. There was testimony by the motor pool officer and the Post Commander that a trip ticket was necessary before any army vehicle could be used for travel. Yet there was also testimony that the practice with respect to issuance of trip tickets had become very lax and that trip tickets were frequently issued a day in advance, or even retroactively. Sergeant Graves himself testified that despite the seeming pleasure-purpose of his trip, had an authorizing person been available (it was a holiday and all personnel were on pass) he felt he would have had no trouble getting authorization for this trip.
Further mystery is cast upon the circumstances of this trip in view of the disappearance of all the trip tickets for the day in question. Sergeant Graves was court-martialed for wrongful appropriation of a motor vehicle, a process arising out of this accident. At the time of the court-martial, July 29, 1952, the trip tickets for the 23rd of February were available and Sergeant Graves was acquitted. Plaintiff attempted to subpoena the trip tickets of that day and was informed by the Government that they had been destroyed.
In the light of this record the Court finds that the government has not sustained its burden of proving by positive facts that the presumption of agency is untrue. The Court finds, therefore, that Sergeant Graves, at the time of the accident, was acting within the scope of his employment, and, therefore, the United States ...