McLaughlin, Freedman and Adams, Circuit Judges. Freedman, Circuit Judge (dissenting).
The issue in this case is whether the Government is liable for the negligent operation of an automobile by a serviceman travelling from one duty post to another, who for personal reasons did not use a direct route between the two points.
In August, 1962, Corporal Herbert L. McSwain, of the United States Marine Corps, received orders transferring him from Camp Pendleton, California, to the Naval Air Technical Training Center in Memphis, Tennessee.*fn1 McSwain was authorized a delay enroute of twenty days chargeable as ordinary leave and four additional days for travel time, and was authorized to go by any means of transportation.
McSwain decided to use his own automobile and drive to the home of relatives in Philadelphia where he intended to leave his wife and infant daughter, to complete the trip to Memphis alone and to do some sight-seeing as they crossed the country. He was to be reimbursed for mileage for himself and for his wife, calculated on the basis of the distance from Pendleton to Memphis.
The direct route from Pendleton to Memphis is due east through Arizona, New Mexico, Texas, Oklahoma and Arkansas. However, in accordance with his plans, McSwain, his wife, and daughter left Pendleton on August 29, 1962, driving in a northeasterly direction to Las Vegas, Nevada. After an overnight stop in Las Vegas, they drove through Arizona, stopped the next night in Utah and went into Colorado. On September 1, 1962, while driving east on Route 40, one mile west of Wild Horse, Colorado, McSwain apparently fell asleep, and his car veered off the road into a ditch. His daughter fell against the dashboard, and as a result of the injuries she sustained, died the following day. When the accident occurred, McSwain was 300 miles north of the direct east-west route between Camp Pendleton and Memphis.
Mrs. Dorothea McSwain, the child's mother and Stella McSparran, the administratrix of the child's estate, instituted this suit for damages under the Federal Tort Claims Act. The United States moved for summary judgment on the ground that the serviceman was not acting within the scope of his employment at the time of the accident. The motion was denied by the district court, 291 F. Supp. 386. After trial, the district court held that the serviceman was acting within the scope of his employment, found he had negligently operated his car, and awarded judgment to the administratrix of the estate for $977.40 in the wrongful death action and $6,522.60 in the survival action. This appeal, confined to the single question whether McSwain was acting within the scope of his employment when the accident occurred, followed.
Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674,*fn2 the United States is liable for injury caused by the negligent act of a government employee to the same extent a private employer would be liable. Such liability for the acts or omissions of a civilian or military federal employee is determined by the law of respondeat superior of the state in which the act or omission occurred. Williams v. United States, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761 (1955).*fn3 Because the Federal Tort Claims Act requires that suits be brought in the federal courts, there cannot be a state case directly in point. Federal courts, however, have considered many similar suits and apply the most analogous state law. As a result, there are diverse views in the Courts of Appeals depending basically on the applicable state law, and to some extent on the particular factual situation. Although the traditional doctrine of respondeat superior may not be appropriate to the relationship between military personnel and the armed forces, we are constrained by legislative mandate to apply this concept.
In reaching his decision, Judge Weiner in the court below relied, as did Judge Troutman when he denied the Government's motion for summary judgment, on Courtright v. Pittman, 264 F. Supp. 114 (D.C.Colo.1967). Courtright interpreted Colorado state law in a case involving facts substantially similar to those here. There is, however, a significant distinction between the two cases which is crucial to the outcome in the present case.
Courtright was a suit under the Federal Tort Claims Act arising from the negligent operation of an automobile in Colorado by Pittman, a serviceman travelling from a duty post in Alaska to one in Colorado. Like McSwain, Pittman was authorized delay enroute and travel time, was accompanied by his wife and children, and compensated for the trip. Chief Judge Arraj, in the Colorado District Court, found that Pittman was " travelling on a direct route" and "was engaged in no sort of pleasurable 'frolic of his own.'" 264 F. Supp. at 120. The District Court here found that McSwain was "not [on] the most direct route from Camp Pendleton to Memphis." Instead, he was in Colorado because he had visited Las Vegas and was enroute to visit his wife's family in Philadelphia before reporting to Memphis. Although Judges Troutman and Weiner observed this factual distinction between the two cases, they did not believe it determinative. We disagree, and consider it controlling.
In United States v. Mraz, 255 F.2d 115 (10th Cir. 1958), cited by the court below, Judge Murrah stated that there are two basic philosophies of respondeat superior :
A primary issue for the Colorado District Court in Courtright was whether Colorado took the former or latter approach. Chief Judge Arraj in Courtright examined the law on this subject and particularly the applicable Colorado law. Relying in part on Hynes v. Donaldson, 155 Colo. 456, 395 P.2d 221 (1964), he concluded that Colorado followed the latter theory. Accordingly, Courtright is not authority for the position that Colorado law holds a master responsible for negligent acts of an employee that occur while the employee is making a trip in part for his employer's business but from which he has deviated for his own purposes.*fn5 Even under the second view discussed in Mraz, if the employer is to be held negligent, the negligent act must "not arise from some external, independent and personal motive." The language in Courtright ...