Under the decisions of the United States Court of Appeals for the Third Circuit prior to the effective date of the recent amendments to F.R.Civ.P. 56, the instant Motion might have been denied on the ground that a genuine issue as to a material fact existed in this case because of the apparent disparity between the statements in the Complaint and in the affidavits and depositions submitted by defendant. However, the amendment to F.R.Civ.P. 56(e) provides that when a motion for summary judgment is made and is appropriately supported, an adverse party may not rest on mere allegations or denials in his pleadings, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue of fact for determination at the trial. If he does not so respond, summary judgment, if appropriate, may be entered against him. See F.R.Civ.P. 56(e), as amended.
In this case, the affidavits and depositions submitted by defendant present to the court a factual situation completely different from that set forth in the Complaint. These affidavits and depositions have not been appropriately controverted by plaintiff in any material respect.
The uncontroverted facts shown by the record are as follows:
'The social affair which was attended by the deceased, Lieutenant Barnette, and others on the evening of November 21, 1959, was a private party given by a group of army officers in their residence located off the army base. The deceased and certain other students from the College of Notre Dame were transported to said party in two private automobiles driven by army officers in civilian attire who were also going to attend the party. James Barnette was one of those who transported the group of girls to the party. Phyllis White did not drive to the party in his car. Lieutenant Barnette did not perform any duty assignment on November 21-22, 1959, and does not even know if he was on the base during that period. The girls who arranged that a group of Notre Dame college girls would attend the affair did not believe that it was an official function and the invitation was not extended through the school's social chairman. It was not understood by the President of the college to be an official dance sponsored by the Government. At about 11:30 P.M. on November 21, 1959, James Barnette started back to the College of Notre Dame with Phyllis White, who was due back at the school at 1:00 A.M., as his only passenger. En route, the accident causing the death of Miss White occurred.'
Under 28 U.S.C.A. 1346, the United States is liable for negligence of an employee who is acting within the scope of his employment under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred.
'Acting within the scope of his office or employment' in the case of a member of the military or naval forces means acting in the line of duty. See 28 U.S.C.A. § 2671. It is plaintiff's position that the phrase 'line of duty' has a broader significance than 'scope of employment' and that the standard to be applied should be taken from military cases in which the serviceman is a claimant for injuries received (see Document 35). Plaintiff also contends that this court should use its own standards in determining if the doctrine of respondeat superior applies (see Document 36). This position is contrary to established law.
The policy of the Federal Tort Claims Act is to fix Government liability under the doctrine of respondeat superior just as if the United States were a private employer. E.g., United States v. Holcombe, 277 F.2d 143, 146 (4th Cir., 1960); King v. United States, 178 F.2d 320, 321 (5th Cir., 1949). It is well settled that the phrase 'line of duty' in the Act, as applicable to military and naval personnel, has no broader significance than 'scope of his employment,' as used in master and servant cases. Cannon v. United States, 243 F.2d 71, 73 (5th Cir., 1957); Hubsch v. United States, 174 F.2d 7, 8, 9 (5th Cir., 1949); United States v. Eleazer, 177 F.2d 914, 918 (4th Cir., 1949), cert. den. 339 U.S. 903, 70 S. Ct. 517, 94 L. Ed. 1333 (1950); Paly v. United States, 125 F.Supp. 798, 805 (D.Md. 1954), aff'd, 221 F.2d 958 (4th Cir., 1955). See Cooner v. United States, 276 F.2d 220, 222 (fn. 1) (4th Cir., 1960). The position taken by plaintiff that the Act should be construed so as to give the phrase 'line of duty' the same construction as it is given in opinions of the Attorney General and Judge Advocate General in connection with claims of military personnel against the Government and thus make the United States liable for practically everything a soldier or sailor does is not a novel one. It has been attempted in other cases and found lacking in merit. E.g., United States v. Campbell, 172 F.2d 500, 503 (5th Cir. 1949), cert. den. 337 U.S. 957, 69 S. Ct. 1532, 93 L. Ed. 1757 (1949).
Contrary to the position taken by plaintiff, this court may not apply its own standards to the question of apparent authority or agency relationship, but is bound by the respondeat superior doctrine of Maryland, the state in which the accident occurred. Williams v. United States, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761 (1955). If there would be no liability under Maryland law if the Government were a private person, there can be no recovery in this case brought under the Federal Tort Claims Act. Under Maryland law, a principal is not liable for physical injury caused by negligent conduct of an agent who is not a servant during performance of the principal's business unless the act was done in the manner authorized or directed by the principal or the result was one authorized or directed by the principal.
To be within the scope of employment, conduct must be of the same general nature as that authorized or incidental to the conduct authorized. In Maryland, 'all of these particular applications of the doctrine of respondeat superior arise from the principle that the liability of the master for the tortious acts of the servant rests at last upon the existence of authority, that the act must have been done in the course of an employment which the master has authorized, and that, unless such authority can be shown, there is no liability.'
The essential premise of the Maryland doctrine is that liability depends upon authority, express or implied,
and the burden here is on the plaintiff to prove that the driver of the vehicle and authority, express or implied.
The record in this case shows that plaintiff cannot meet this burden. Lieutenant Barnette was returning from a private party, which had taken place at an off-base residence, on the night of November 21-22, 1959, and was driving his private vehicle when the accident occurred. He was not on duty at the Aberdeen Proving Grounds that evening, having gotten someone to take his place on duty.
Lieutenant Barnette during this period had never been appointed by the appropriate authority to drive any young ladies home from any army function which had been held at the camp.
Driving, especially the driving involved here, was not in the scope of his employment.
The facts as presented on this record are legally insufficient to permit an inference of implied authority. This being the case, the Maryland doctrine of respondeat superior is not applicable and the action must be dismissed, since there is no liability under the Federal Tort Claims Act. See Paly v. United States, supra.
And Now, August 15, 1963, after consideration of the foregoing Motion, oral argument, briefs of counsel (Documents 30, 31 (with attached letter of May 14, 1963), and 34-36), and the record, it is ordered that the defendant's renewed motion for summary judgment is granted and judgment is entered for defendant and against plaintiffs.