Janice L. James, by Her Next Friend, Roland C. James, and F. D. English, Administrator of the Estate of Frederick L. English v. United States ( 1972 )

WINTER, Circuit Judge:

The district court rendered judgment against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671 et seq., on the theory that Sgt. William A. Bell was acting within the scope of his employment when he was involved in an automobile accident on August 3, 1968. The government appeals solely on the issue of agency, and we reverse.

I

Sgt. Bell, a member of the United States Army Reserves, resides in Jacksonville, North Carolina. For the period July 18, 1968, through August 3, 1968, he was ordered to the Atlanta Army Depot, Forest Park, Georgia, for annual field training. His orders did not direct him to use any particular method of travel to get to Forest Park and return home, but he was authorized to use his privately-owned automobile with reimbursement for mileage. This was the mode of transportation which he had elected to employ when, on August 3, he was returning to his home. The accident occurred approximately five miles east of Wallace, North Carolina, on N.C. Highway No. 41, concededly a leg of the most direct route from Forest Park to Jacksonville. For purposes of this appeal, we assume the correctness of the determination that Sgt. Bell’s negligence was a proximate cause of the accident.

II

In light of the views expressed by our dissenting colleague, we approach decision by noting that the Act imposes liability upon the United States only where “personal injury or death [is] caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” (emphasis supplied) 28 U.S.C. A. § 1346(b). Thus, it is clear that we must look to the law of North Carolina to determine the rights of the parties. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (per curiam) 1955.¹ As in the exercise of diversity jurisdiction, we must apply that law as the courts of North Carolina have established it, or if we find no state law directly applicable, we must make an informed prediction of what the state courts would decide if the case were before them. In no event may we allow ourselves the luxury of overruling or departing from direct state precedent, or the apparent trend of state precedent, to decide a case in accordance with what we think state law should be or how it ought to be changed.

Ill

In United States v. Eleazer, 177 F.2d 914 (4 Cir. 1949), we had occasion to determine and to apply the law of North Carolina with respect to whether a member of the armed forces was an agent of the United States, so as to render it liable under the Act for his negligence when he was engaged in optional travel by privately-owned automobile. We think Eleazer is dispositive of this appeal.

In Eleazer, the Marine officer, in active service, was directed to report to ■another station. He was authorized to delay in reporting, “such delay to count as leave.” He was authorized to choose his mode of transportation, and for the use of his own automobile which he elected to employ, he was entitled to reimbursement from the government for mileage at a fixed rate by the nearest route. He was involved in an accident shortly after he began the journey. He had not deviated from the shortest route. Applying North Carolina law, we held that under the doctrine of respon-deat superior the United States was not liable for personal injuries that he inflicted.²

The facts in the instant case are almost identical. Sgt. Bell, who resided in Jacksonville, North Carolina, had been ordered to duty at Forest Park, Georgia, for annual field training. When the period of training was completed he was ordered to return home where he would “revert to inactive status.” He was not directed to employ any particular mode of transportation. He was authorized to use his privately-owned automobile with reimbursement for mileage, and this he did as he began the journey to his home. He was involved in an automobile accident in its course; he had not deviated from the shortest route.

Eleazer did not proceed on the fact that the Marine officer was on leave. It depended upon the fact that “he and not the government selected the means of transportation and no officer of the government had any right to exercise actual control over his operation of the means chosen.” 177 F.2d at 916. The same is true in the instant ease. We fail to see any factual basis for the assertion that Sgt. Bell was “sufficiently” about the affairs of the United States that his negligence should be treated as that of the United States; nor do we think that the courts of North Carolina would perceive one. Neither the Marine officer in Eleazer nor Sgt. Bell in the instant case was under the control of the United States in the mode of transportation selected, or, when private automobile was employed, the manner in which it was operated. Whether on leave or on return home to inactive status makes no difference; the decision in both cases should be the same.

Reversed.

1 . Tlie significance of Williams is pointed up by considering the opinion of the Ninth Circuit Court of Appeals in the case to which the Supreme Court granted certiorari, Williams v. United States, 215 F.2d 800 (9 Cir. 1954). The Court of Appeals, relying upon 28 U.S.C.A. § 2671 which defined “acting within the scope of his office or employment” (28 U.S.C.A. § 1346(b)), in the case of a member of the military or naval forces of the United States, to mean “acting in line of duty,” held that when a serviceman caused injury, the United States would be liable if the serviceman was acting in the line of duty. In reversing, the Supreme Court said succinctly “[t]liis case is controlled by the California doctrine of respondeat superior.”

In the instant case, Sgt. Bell was determined by the Army and by the district court to have been acting in the line of duty when the accident occurred. Indeed, he was granted a service-connected disability and discharged as a result of the permanent disability that he sustained from the accident. But the determination is without significance in the instant case as a result of the decision in Williams.

2 . We have not been shown that there has been any perceptible change in North Carolina law since we analyzed and applied it in Eleazer. Indeed, it appears to be the same. Ellis v. Amer. Service Co., 240 N.C. 453, 82 S.E.2d 419 (1954); Rogers v. Carolina Garage, 236 N.C. 525, 73 S.E.2d 318 (1952).

This is not a case arising under a workmen’s compensation statute where, under the test of whether death or injury arose “out of or in the course of employment,” there is room for greater liberality in finding a right to recovery. Kiger v. Bahnson Service Co., 260 N.C. 760, 133 S.E.2d 702, 704 (1963).