Elizabeth Berrettoni and Barry Berrettoni, a Minor, by Elizabeth Berrettoni, His Guardian Ad Litem v. United States

Appellees brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b), 2671 et seq., to recover for injuries suffered by virtue of the alleged negligence of Ronald Neil Searles in operating an automobile owned by him. The accident occurred in the State of Montana on July 20, 1964. Searles at the time was a member of the United States Air Force with a rank of Airman 2d Class. The sole question presented on this appeal is whether Searles was acting within the course and scope of his employment at the time of the accident. In resolving this issue, we must apply the respondeat superior principles of Montana, the state in which the alleged tort was committed. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100 , 100 L.Ed. 761 (1955); United States v. McRoberts, 409 F.2d 195, 197 (9th Cir. 1969); United States v. Romitti, 363 F.2d 662, 663-664 (9th Cir. 1966).

The District Court considered the contentions of the United States on the issue of respondeat superior when it denied the United States’ motion for summary judgment. Judge Murray’s memorandum and order states the facts as follows:

The court determined on these facts that under Montana…