Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
The principal question presented by this appeal is which, if either, of the defendants may be charged with responsibility for the torts of the District of Columbia National Guard committed during peacetime training at a time when the District of Columbia National Guard had not been ordered to active service as a component of the United States Army.
The facts alleged in the amended complaint are as follows. On July 9, 1950, Charlotte M. O'Toole and Thomas B. O'Toole, her husband, were passengers in an automobile owned by Thomas B. O'Toole and being driven north on Route 14 in Delaware by Robert J. Wilson. Heading south on the same route was a unit of the District of Columbia National Guard which included two M-4 tractors. The first tractor was being driven by Sergeant James Francis Griggs, and the second, which was directly behind the first, by Pfc. Melvin L. Harrington. At a point about five miles south of Milford, Delaware, Griggs' tractor proceeded to a stop on the right hand side of the road. Harrington's tractor thereupon crossed the highway just as the O'Toole car was approaching. The car and Harrington's tractor collided, killing Mr. O'Toole, seriously injuring Mrs. O'Toole and Wilson, and damaging the automobile. The complaint alleged that Harrington was "the agent, servant or employee of the United States of America and of the District of Columbia and was acting within the scope of his employment or office," and that the M-4 tractor was being "driven, operated or maintained in a negligent and unsafe manner."
The plaintiffs Charlotte M. O'Toole and Robert J. Wilson brought suit in their own names.Charlotte M. O'Toole also sued as administratrix of her husband's estate. The corporate plaintiff, St. Paul Fire and Marine Insurance Company, sued as subrogee to Thomas B. O'Toole's right of recovery for damage to the automobile. Suit against the United States was based upon the Federal Tort Claims Act, 28 U.S.C. §§ 2674, 1346(b).Although the complaint is not entirely clear as to the basis of suit against the District of Columbia, we will regard this suit as based upon diversity of citizenship and amount in controversy. Service of process on the District of Columbia was made in accordance with the Delaware nonresident motorist statute, Revised Code of Delaware, 1935, § 4590. Notice of suit was also mailed to the District of Columbia pursuant to D.C.Code § 12-208 (1940 ed.).
Interrogatories and answers to them were filed, establishing and supplementing the facts alleged in the complaint except for the alleged negligence. The District of Columbia moved to dismiss the actions or to quash the return of service of summons on several grounds, among them that the District was not amenable to service under the Delaware nonresident motorist statute, that the District did not own, operate or control Harrington's M-4 tractor, that the court lacked jurisdiction and that the venue was improper. The United States moved for summary judgment on the ground that the cause of action alleged was not "based upon the negligence or wrongful act or omission of any employee of the United States while acting in the scope of his employment, as required to give jurisdiction to this Court under the Federal Tort Claims Act." Various affidavits were filed in support of and in opposition to this motion.
The District Court granted the motions of both defendants. See 106 F.Supp. 804 (D.Del.1952). The court held that Harrington and Griggs were not employees of the United States within the meaning of the Federal Tort Claims Act, and that the District of Columbia was not subject to service of process under the Delaware nonresident motorist statute. As additional grounds for dismissing the action as to the District of Columbia the court held that the venue was improper and that, if the suit should be considered as based upon the Federal Tort Claims Act, the District of Columbia was not covered by that Act in its present form. The plaintiffs appeal.
We will address ourselves solely to the question of responsibility for the torts of the District of Columbia National Guard. We do not consider it necessary to deal with the manifold other problems presented to the court below. Thus, we do not decide whether the District of Columbia is itself an agency of the United States within the meaning of the Federal Tort Claims Act. Nor will we discuss whether venue was properly laid in the court below as to the District of Columbia or whether the court had jurisdiction over the District by virtue of the Federal Rules of Civil Procedure, 28 U.S.C., the application of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, the Delaware nonresident motorist statute, or the District of Columbia Code, § 12-208, or finally the sovereign immunity, said to shield the District of Columbia from this suit. In our view our determination of responsibility for the alleged negligence in operating or maintaining Harrington's M-4 tractor determines this appeal. The present record is ample to enable us to make such a determination.
The liability of the United States under the Federal Tort Claims Act is spelled our in Sections 2674 and 1346(b) of Title 28 U.S.C. The former section provides that "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, * * *." The latter confers on the district courts exclusive jurisdiction of civil actions on claims against the United States, for money damages "for injury or loss of property, or personal injury or death 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."
Was Harrington an employee of the "Government" acting within the scope of his employment? Section 2671 of Title 28 U.S.C., supplies the following definitions: "'Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation."
"'Federal agency' includes the executive departments and independent establishment of the United States, and corporations primarily acting as, instrumentalities or agencies of the United States but does not include any contractor with the United States." And "'Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty."
There is no doubt that Harrington was in the service of and performing the work of the District of Columbia National Guard at the time of the collision with the O'Toole car. The summer training schedule of the Guard and the record of Harrington's participation in this training are before us. The disputed question is whether the Guard was in such a relation to the United States as to make Harrington an employee not only of the Guard but of the United States. It must be remembered in this connection that it is the peacetime status of the Guard with which we are concerned; the Guard had not been ordered into active service with the Army of the United States. See 48 Stat. 15 (1933), 32 U.S.C.A. § 4 et seq.; P.L. 476, 82d Cong., 2d Sess. (1952), 50 U.S.C.A. § 1111 et seq.
The peacetime status of the District of Columbia National Guard is described in various statutes as follows: The Guard, consisting of the organized militia of the District, was created by Act of Congress.*fn1 The President of the United States is its Commander-in-Chief.*fn2 He appoints the Guard's commanding general and may remove him at pleasure.*fn3 He also appoints the adjutant general of the Guard and the Guard's staff and other officers.*fn4 The President approves the regulations of the commanding general for the Guard.*fn5 He or the commanding general may appoint courts-martial for the Guard,*fn6 and he determines matters pertaining to the retirement of Guard officers.*fn7 In other matters not covered by law, the commanding general has the power of regulation, subject to the approval of the President.*fn8 Enlisted members of the Guard are required to swear that they "'will obey the orders of the President of the United States, and of the officers appointed over [them] according to law * * *.'"*fn9
It thus appears that there is a direct chain of control and command from the President through the Guard's commanding general to the enlisted members of the Guard. By the same token, control of the Guard by the District of Columbia is lacking. It is true that in the case of riot or other similar emergency the Commissioners of the District of Columbia may lawfully call on the Commander-in-Chief of the Guard, the President of the United States, to aid in suppressing the riot, but the Commander-in-Chief retains complete discretion as to how many and what troops are called out.*fn10 In no other situation is the Guard subject even to the request of the Commissioners. We therefore place little weight on the fact that certain items of Guard expenses, including administrative and maintenance expenses of head-quarters and of local armory facilities within the District, are included in the District of Columbia appropriations.*fn11 The salary of the commanding general at ...