Murphey

This is an appeal from a judgment in a suit under the Federal Tort Claims Act denying recovery for the killing on July 12, 1945, of Huldah Murphey, the wife of one appellant and the mother of the three other appellants, by the claimed negligence of a staff sergeant, Paul W. Brander, of the United States Army Air Corps in driving an army truck.

The pertinent provisions of the Federal Tort Claims Act are: “* * * the district court * * * shall- have * * * jurisdiction to * * * render judgment * * * against the United States * * on account of 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 * * * in *744 accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 931 (a).

“(b) ‘Employee of the Government’. includes officers or employees of any Federal agency, members of the military or naval forces of the United States. * * *

“(c) ‘Acting within the scope of his office or employment’, in the case of a member of the military or naval forces of the United…

(dissenting).

I cannot agree with the conclusion reached by my associates.

Since the government concedes negligence the only question before us is whether or not the driver of th.e army truck was, at the time the accident occurred, acting within the line of his duties or the scope of his office or employment so as to create liability on the part of the United States under the Federal Tort Claims Act. That Act , establishes liability only “under circumstances where the United States, if a private person, would be liable.” Clearly Congress did not intend for the United States, as an employer, to be singled out as standing iii some “peculiar relationship” to its employees so as to subject the sovereign to greater liability than that imposed upon an ordinary private employer under the “law of the place.”

The Fifth Circuit has held that, as used in the Act, “line of duty” is equivalent to “scope of employment” and is to be determined by the doctrine of respondeat superior in the same manner and to the same extent ¿s the liability of private persons *747 under that doctrine is measured in the various states. United States v. Campbell, 5 Cir., 172 F.2d 500 , certiorari denied 337 U.S.…

179 F.2d 743 MURPHEY et al. v. UNITED STATES. No. 12188. United States Court of Appeals Ninth Circuit. January 25, 1950. Francis E. Harrington, Portland, Ore., William B. Wetherall, San Francisco, Cal., for appellant. Frank J. Hennessy, U. S. Atty., San Francisco, Cal., Harlan M. Thompson, Asst. U. S. Atty., Sacramento, Cal., for appellee. Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal from a judgment in a suit under the Federal Tort Claims Act denying recovery for the killing on July 12, 1945, of Huldah Murphey, the wife of one appellant and the mother of the three other appellants, by the claimed negligence of a staff sergeant, Paul W. Brander, of the United States Army Air Corps in driving an army truck. 2 The pertinent provisions of the Federal Tort Claims Act are: "* * * the district court * * * shall have * * * jurisdiction to * * * render judgment * * * against the United States * * * on account of 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…