Robinson, E. N.

English

Duke Law Scholarship Repository

THE SERVICEMAN AND VICARIOUS LIABILITYOn December 15, 1950 the President of the United Statesdeclared anothed national emergency and directed that-thearmed forces be enlarged to three and a half million men bythe Spring of 1951. With this tremendous increase in mobil-ization the problem of claims against the Government fortorts of setvicemen will become increasingly acute.The initial axiom to be kept in mind is that the sovereignis immune from suit.1 Accordingly, any right to sue theNational Government must spring from a legislative grant;and all doubts will be resolved in favor of the sovereign.2The Federal Tort Claim Act contains such a grant; itrecognizes that just as an employee's torts can judicially beviewed as part of an ordinary employer's cost of doingbusiness,8 so can the torts of Government employees beviewed as a part of the cost of Government.The pertinent portions of the Federal Tort Claims Actof 1945 are:a. 28 U.S.C. §1346(b) "District Courts . . . shall haveexclusive jurisdiction of, civil actions on claims against theUnited States, for money damages accruing on or after 1January 1945, for injury or loss of property, or personalinjury or death caused by the negligent or wrongful act oromission of any employee of the Government while actingwithin the scope of his office or employment, under circum-stances where the U.S., if a private person, would be liableto the claimant in accordance with the law of the placewhere the act or omission occurred."b. 28 U.S.C. §2671 "Acting within the scope of his officeor employment in the case of a member of the military ornaval forces of the United States, means acting in line ofduty."c. 28 U.S.C. §2764 "The United States shall be liable,respecting the provisions of this title to tort claims, in thesame manner and to the same extent as a private individualunder like circumstances, but shall not be liable for interestprior to judgment or for punitive damages."I Osborn v. Bank of U.S., 9 Wheat. 738, 22 U.S. 738 (1824); U.S. v.Shaw, 309 U.S. 495 (1939).2 Hammond-Knowlton v. U.S., 121 F.2d 192 (1941); For excellentdiscussion on subject prior to Federal Tort Claims Act, see "Govern-mental Responsibility," 34 Yale L.J. 1, (1924), 36 Yale L.J. 1, (1926).3 Prosser, Torts, 472, (1941).THE SERVICEmAN. AND VICARIOUs LIABILITYCorporal John Doe, ,while driving a vehicle of the UnitedStates Government, negligently .runs into and causes injuryto a private citizen, Mr. Smith. Within. the provisions ofthe above quoted sections of the Federal Tort Claims Actlies Smith's. authority to sue the United States Government-for Corporal Doe's tort.L "Scope of Employment" or '"ine of Duty"The Tort Claim Act, in the case of a member of the mili-tary services, defines "acting within the scope of his officeor employment.' to mean "acting in the line .of duty."14 Theformula "within the scope of his employment,"' vague thoughit be, grew up to express vicarious liability in situationswhere there was a degree of departure by the employeefrom the kind of work he is employed to perform. Authorizedlimits .f'.time and space and a purpose to serve the masterare factors bearing on whether this formula applies toimpose vicarious liability in a particular case.6"In line of duty" has achieved whatever definiteness ithas in military understanding in the course of administra-tive adjudication of certain rights and benefits to w hichservicemen become entitled as a result of injuries and dis-eases incurred in line of duty.8 In some respects this mili-tary concept has been extremely broad. So it has been heldthat death of a soldier in a motorcycle accident on a trip .toobtain personal laundry was in line of duty, that the deathof a soldier from drovning: on a tiip to obtain equipment28 U.S.C. §2671.a Restatement, Agency, § 228; e algo Proiser, Torts, 475.8 Supplementary Materials onElebientary'Law', Dept. of Law, U.S.M.A., West Point, NX.Y. (1945). "If there is an administrative findingthat disability or death was not incurred "in line of duty," the follow-ing may be withheld: A. Digability benefits and pensions; B. Tempo-rary insurance benefits; C. Burial Expenses; D. Medical and hospitaltreatment and domiciliary care; E. Retirement benefits; F. Posthumousappointments and promotions." "An administrative finding that dis-ability or death was incurred as a result of misconduct usually resultsin the following: A. Making good time lost; B. Forfeiting of pay fortime lost; C. Loss of six months' gratuity pay; D. Loss of medical careafter discharge; E. No admittance to Soldiers"Home; F. Unfavorabletype of discharge."7Dig. Op. JAG 1912-40, 960.DUKE BAR JOURNALwas in line of duty,8 and that a soldier on farm furloughwho died of disease contracted without fault of his own wasin line of duty at the time of his death.9 Further, decisionshave been rendered to the effect that a soldier on pass in-jured while working in a cannery, an occupation encouragedby the War Department to relieve labor shortage, was inline of duty,10 that disability of a soldier on furlough whileassisting in extinguishing a fire was in line of duty sincefailure to render assistance under such circumstances wouldbe a reflection on the military service;"' and that death ofan officer on duty status while engaged in normal andproper recreation was in line of duty.2 Obviously this con-cept is a departure from the traditional agency concept of"within the scope of employment."On the other hand, there are limitations on the status,"in line of duty," which may make the term narrower than"scope of employment." "A finding of misconduct requiresa finding of not 'in line of duty.' ,18 Accidental death occur-ring to a soldier during an absence without leave,14 disabilityor death of a prisoner shot while attempting to escape,15and death of a soldier employed on a railroad resulting fromviolating railroad rulese were held not to be incurred inline of duty since resulting from misconduct. Since neg-ligence and intentional infliction of harm may properly beconsidered "misconduct," one might conclude that thiswould take the serviceman outside the line of duty in mostinstances where he injures another. However, apparentlysimple negligence is not viewed by the military as miscon-duct, for the death of a soldier from negligent driving of agovernment vehicle was held not to be the result of miscon-duct.17 Similarly, the injury of an officer in an auto acci-dent when he failed to stop at a stop sign was held underI Dig. Op. JAG 1912-40, 956.9 Dig. Op. JAG 1912-40, 971.10 Bull. JAG, Nov. 1943, 478; Sec. IV, Cir. 321, WD, 11 Dec. 1943.u Dig. Op. JAG 1912-40, 970.Dig. Op. JAG 1912-40, 966.22 Same as note 6, "Line of Duty Status," Sec. 1(3), 1945.21 Dig. Op. JAG 1912-40, 972."5 Dig. Op. JAG 1912-40, 973.6 Dig. Op. JAG 1912-40, 970.27 Dig. Op. JAG 1912-40, 972.THE SERVICEMAN AND VICARIoUs LIABILITYall the circumstances to be in line of duty and not the resultof misconduct,1s and the disability or death of a soldierwhile trespassing on railroad property has been held to bein line of duty and not misconduct, since trespass is notsuch a violation of duty as constitutes misconduct.19 Yetcertain 'types of gross negligence have b~en held to be suf-ficient to take the serviceman outside the "line of duty,"due to misconduct. For instance, the disability or death ofa soldier in an auto accident caused by recklessly driving inviolation of speed -laws was held not in line of duty as re-sulting from misconduct.20 The death of a soldier due eitherto intoxication or careless driving is not in line of duty sinceit is the result of "misconduct."'21It is conceivable that the Congress intended by §2671 toadopt the military concept of "in line of duty," as establishedby the Judge Advocate General, as the test to determinevicarious liability of the Government when servicemen areinvolved. Of course, if Congress so intended, vicariousliability would have been very wide in many instances, butvery narrow in others because of the military view thatcertain types of misconduct take the serviceman's actionoutside the "line of duty." Though the Federal Tort ClaimsAct states in one section that "acting within the scope ofhis office or employment" shall mean "acting in line ofduty, '22 another section states that the United States shallbe liable "under circumstances where the U.S., if a privateperson, would be liable to the claimant. ' 23 The resulting in-consistency between "line of duty" and the "scope of em-ployment" test which would determine the liability of aprivate person has been resolved by the Federal Courts infavor of the more familiar "scope of employment" test.As a result of the adoption of the "scope of employment"test the Federal Courts have held the United States not tobe liable for an accident resulting from the negligent driv-ing of a soldier who had gone some 45 miles out of his28 Bull. JAG, February 1944, 89.ID Bull. JAG, March 1944, 130; Bull. JAG, April 1944, 177.-0 Dig. Op. JAG 1912-40, 961, 962.Dig. Op. JAG 1912-40, 954.28 U.S.C. § 2671.28 U.S.C. § 1346(b).-DUKE BAR JOURNALassigned route but was on his way back to his assigned sta-tion at the time of the accident;24 not liable for injuries sus-tained when a sailor, who was travelling under governmentorders, negligently ran into the plaintiff when running tocatch a train which was moving out of the station ;25 notliable for negligent driving of an officer who was on hisway to a newly assigned station and had been granted a15 day delay en route, though his orders directed that hedrive his own personal car ;26 and not liable for negligentdriving of a naval officer who was on weekend pass.27Some of the above cases are reminiscent of the employer'snon-liability for torts of employees while going and com-ing from work, but are hardly consistent with the tradi-tional military concept of "in line of duty." In the casesabove cited, it is clear that the Judge Advocate Generalwould have held that the serviceman was "in line of duty"had he been injured at the time of the accident, and yet theFederal Courts have denied liability of the United Stateson the grounds that the said serviceman was not within the"scope of his employment."It is reasonably arguable that the relationship whichexists between a serviceman and the service should resultin broadening the application of the "scope of employment"test. If "control" of an employer over an employee is tobe any criterion, vicarious liability for torts of a service-man should perhaps be more readily imposed than in thecase of other employees. As an example, consider the caseof Bock v. U.S., wherein the Federal Courts denied liabilityof the United States for the negligent driving of an officerwhile proceeding from his old station in North Carolina tohis newly assigned station in Texas. The officer was direct-ed to drive his own car, for which he would receive compen-sation upon arrival. At the time of the accident, he wasfollowing the most direct route to his new station. Duringthe entire trip the officer was subject to the "control" ofthe military forces (Military Police have authority to ar-21 Cropper v. U.S., 81 F.Supp. 81 (N.D. Fla. 1948).2 U.S. v. Campbell, 172 F.2d 500 (Fifth Cir. 1949).'I U.S. v. Eleazer, 177 F.2d 914 (Fourth Cir. 1949).27 Bock v. U.S., 92 F.Supp. 715 (S.D., N.Y. 1950).THE SERVICEMAN AND VICARIOUs LIABILITYrest and confine members of the military at any time formisconduct, even to include being out of uniform); andfurther he would *have been subjected to penal action by aMilitary Court Martial had he refused to go to his newstation or had he failed to arrive at the assigned time. Suchcontrol over employees is completely beyond the compre-hension of civilian employers. It is true that civilian em-ployers may direct that an employee perform duties atassigned places and times and the employee may be subjectto discharge unless he complies. In the case of a service-man, however, compliance is insured by virtue of the threatof punishment for non-compliance.Due to this "control" which the service has over service-men, it is seriously questioned whether there is completeanalogy to civilian employment, where a member of thearmed forces is involved. Therefore, it might be askedwhether the words, "under circumstances where the U.S.,if a private person, would .be liable . . ." really prescribecomplete conformity to civilian "scope of employment."IH. Application of Federal or State Law.Having rejected the federal concept of "line of duty" asa measure of the vicarious liability of the Government forthe torts of servicemen, the Courts face the issue whether"scope of employment" is to be determined under Federalor State law. The Federal Tort Claims Act precludes theresult of decisions under the Federal Employer's LiabilityAct in determining whether State or Federal substantivelaw is to apply. In Urie v. Thompson2 s the United StatesSupreme Court said, "What constitutes negligence for thestatute's [The Federal Employer's Liability Act] purposesis a federal question, not varying in accordance with thediffering conceptions of negligence applicable under Stateand local law for other purposes. Federal decisional lawformulating and applying the concept governs."On the other hand, Section 1346 (b) of the Tort ClaimsAct states that the United States shall be liable "undercircumstances where the U.S., if a private person, would1 Urie v. Thompson, 337 U.S. 163 (1948).DUKE BAR JOURNALbe liable to the claimant in accordance with the law of theplace where the act or omission occurred." 9 Whether thischoice of policy is better than that of the FederalPEmploy-er's Liability Act may justly be debated. Be:that as itmay, this provision of the Statute has resulted in consist-ent holdings to the effect that the State law applies30 Inapplying the State test of "within the scope of his employ-ment," the doctrine of "frolic and detour" has presenteditself on several occasions. There being a division ofauthority as to the doctrine and its consequences,31 -theFederal Courts have applied the law of the State in whichthe accident occurred to determine the applicable rule, asthis is nothing more than a sub-division of the test of"within the scope of employment."322 Does the provision of this section change the rule of Conflicts ofLaws? "The place of the wrong the law of which governs torts is theplace where an injury is suffered rather than the place where the actwhich caused the injury was committed." 15 U.J.B. §12 (a) (2), 8991.It is suggested that it does not for the rule as to torts is usually statedas, "the law of the place where the act or omission claimed as thebasis of the tort occurred governs . . ." 15 £.J.S. §12, 898, which is verysimilar to the wording of the act. Obviously the first rule above quotedhas reference to the unusual situation where the act occurs in one stateand carries over to another state where the injury is inflicted as aresult thereof. Should this problem present itself under the FederalTort Claims Act, it is believed that the Federal Courts will also applythe law of the place where the injury occurred.30 Long v. U.S., 78 F.Supp. 35 (S.D. Calif. 1948). See also: Cropperv. U.S., supra.; Murphey v. U.S., 179 F.2d 743 (9th Cir. 1950); U.S.v. Eleazer, supra.; Bock v. U.S., supra.u Prosser, Torts, 477. "As to detour cases various tests have beenproposed:a. Makes the question turn primarily on the servant's motive inthe deviation (motivation-deviation test), saying that he is within hisemployment while he intends in part to serve his master, or as soonas he starts to return to his route.b. The second test looks to the foreseeability of such a deviationand holds the employer liable only for torts occurring in a "zone ofrisk" within that which the servant might be expected to deviate.Here the employer does not come into the employment until he isreasonably near the authorized route."82 Lowe v. U.S., 83 F.Supp. 128 (1949); Cropper v. U.S., supra.;Long v. U.S., 78 F.Supp. 35 (1948); Murphey v. U.S., supra.; U.S. v.Johnson, 181 F.2d 577 (1950).THE SERVICEMAN AND VICARIOUS LIABILITY 49IM. Applicability of. Local State Rules of PresumptionsSuppose that the accident occurs in a jurisdiction wherea statute is in effect which makes an auto-owner liable fornegligence of a person driving with the owner's permissionwithout regard to whether such person Was in the owner'sservice. Or, again suppose that by -statute, mere owner-ship gives rise to an inference that the driver was actingwith the permission of the owner. Section 2674 states that"The United States shall be liable ... in the same man-ner and to the same extent as a private individual underlike circumstances . .. " If one looks solely to these words,it would appear that the intent of the Legislature was tomake statutes, of the type mentioned, as applicable to theUnited States as to others. But §1346(b) provides thatthe United States shall be liable for wrongful acts or omis-sions of employees of the Government, "while acting withinthe scope of his office or employment, under circum-stances . . ." Interpreting this section, the Federal Courtshave held that a plaintiff may not avail himself of localstatutory rules that would aid in proving that the service-man was "within the scope of his employment" at the timeof the accident.3 4 In other words, the Federal Courts havesaid that even though the State test of "within the scope ofhis employment" is to apply, the burden of proving sucha status is not to be relaxed .by local statutes or rules ofprocedure. One explanation for such an interpretationmay well be the hesitancy of our Courts to remove the cloakof Governmental immunities.IV. Conclusions.Justice Cardozo once said, "The exemption of the sove-reign from suit involves hardship enough where consent28 U.S.C. § 1346 (b).uMurphey v. U.S., supra., State statute in effect creating a causeof action against an auto owner for negligence of a person driving withthe owner's permission, without regard to whether such person was Inthe owner's service, the court holding that the statute was not appli-cable to a suit in which the U.S. was involved as defendant. See alsoLong v. U.S., 78 F.Supp. 35 (1948), and Hubsch v. U.S., 92 F.Supp. 874(1950).50 DUKE BAR JOURNALhas been withheld. We are not to add to its rigor by refine-ment of construction, where consent has been announced."' 5As to liability for torts of servicemen, have not the FederalCourts imposed an overly refined construction on the pro-visions of the Tort Claims Act? Have they not forgotten,"It is a wholesome sight to see the Crown sued and answer-ing for its torW'?E. N. ROBINSON.s Cited In Rushford v. U.S., 92 F.Supp. 874 (1950).3* Maitland, Oollected Papers, 244, 236, (1911).

The Serviceman and Vicarious Liability

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The Serviceman and Vicarious Liability

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