that Corporal McSwain was not acting within the scope of his office or employment at the time of the accident.
In actions under the Federal Tort Claims Act the liability of the government is controlled by the law of the place where the act or omission occurred. As the accident occurred in Colorado, the substantive law of respondeat superior of Colorado controls in determining whether Corporal McSwain was acting within the scope of his employment. Williams v. United States, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761 (1955); Solow v. United States, 282 F. Supp. 900 (E.D.Pa.1968). So also it would appear that the law of Colorado concerning intramarital tort actions controls whether this action is precluded by the interspousal immunity doctrine.
Applying the law of Colorado, Mrs. McSwain has the legal capacity to institute this action since the law of Colorado does not preclude the maintenance of intramarital tort actions. Colo.Rev.Stat.Ann. § 41-1-2. However, the government contends that the status of the parties involved in the accident as domiciliaries of Pennsylvania requires that this issue be determined by reference to the law of the Commonwealth of Pennsylvania.
Even assuming this argument is correct - and we do not decide that it is - the law of Pennsylvania would not preclude the maintenance of this action.
In Pennsylvania intramarital tort actions are precluded by statute. 48 P.S. § 111. However, in Koontz v. Messer, 320 Pa. 487, 181 A. 792 (1936), a wife instituted a trespass action against the employers of her husband for injuries alleged to have been sustained by her through the negligence of her husband while in the course of his employment. On the theory that the husband-employee was liable over to his employers, the husband was joined by the employers as an additional defendant. The jury returned a verdict in favor of the wife against the employers and in favor of the employers against the husband-employee. On appeal, the Supreme Court held that the wife, on the theory of respondeat superior, could sue the employers of her husband even though she could not sue her husband and that the personal immunity of the husband from suit by his wife did not prevent him, as an additional defendant, from being liable to answer, by way of contribution, to the third parties sued by the wife. Koontz is almost identical to the present action and consequently, even assuming Pennsylvania law controls the disposition of this issue, the maintenance of this action is not precluded by the interspousal immunity doctrine.
Before applying the law of Colorado to the issue of whether Corporal McSwain was acting within the scope of his employment, it might be well to point out that all suits under the Federal Tort Claims Act must be filed in the Federal courts. The result is that, while State law is to be applied, there can never be state cases exactly in point as to the factual situations involved. Thus, while the Federal courts have attempted to find light in decisions of the State courts where the accidents happened, they have also felt it necessary to look to general agency principles. It must be acknowledged, however, that the pattern those cases reveal is somewhat confused.
This confusion has been attributed to the differences in "* * * controlling state authority, and the predilections of the court". United States v. Mraz, 255 F.2d 115, 117 (10th Cir. 1958). In an attempt to reconcile the decisions, the Tenth Circuit in Mraz, supra, at page 117, noted:
"* * * There is doubtless a philosophical divergence in the theory that a master is not liable for the wrongful acts of his servant, unless done in respect to the very transaction out of which the injury arose, and the theory that a master is liable for his servant's negligent acts if done while engaged in the master's business and did not arise from some external, independent and personal motive on his part. * * *"
In Courtright v. Pittman, 264 F. Supp. 114 (D.C.Colo.1967), the Court there held that applying Colorado law, the test of whether a serviceman is acting within the scope of his employment is not one which requires the particular activity at the time of the accident to be the servant's normal duty, but rather whether the master's business was being substantially furthered, thereby concluding that Colorado adopts the more liberal of the two philosophies of respondeat superior enunciated by the Tenth Circuit in United States v. Mraz, supra.
Courtright, supra, is so similar to the present action it might be well to discuss it in detail. In that case, suit was instituted against the United States under the Federal Tort Claims Act for damages sustained by plaintiffs in an automobile accident with a serviceman. The accident having occurred in Colorado, the Court applied the Colorado law of respondeat superior. The following factors substantiated the finding by the Court that the serviceman was acting within the scope of his employment at the time of the accident: He received orders transferring his permanent duty station from Fort Wainwright, Alaska, to Fort Carson, Colorado. He received thirteen days' travel time and thirty days' delay enroute, chargeable to leave,
to reach his destination. He used his own automobile and was accompanied on the trip by his wife and children. He was compensated for mileage at the rate of six cents per mile. He was traveling on a direct route to Fort Carson at the time of the accident, although he intended to stop in Colorado Springs to take care of personal business before proceeding to Fort Carson.
All of the above factors are present in this case, with the possible exception that at the time of the accident Corporal McSwain was not traveling on a direct route to his assigned duty station in Memphis, Tennessee. The deposition testimony of Dorothea McSwain, plaintiff herein, indicates that at the time of the accident Corporal McSwain was intending to first go to Philadelphia, Pennsylvania, to visit her relatives and then proceed to Memphis, Tennessee. Memphis is due east of Camp Pendleton and southwest of Philadelphia. Wild Horse, Colorado, which is approximately where the accident occurred, is northeast of Camp Pendleton, due west of Philadelphia and about one-half the distance between Camp Pendleton and Memphis. The Government argues in its brief and on oral argument that since at the time of the accident Corporal McSwain was intending to go to Philadelphia and was using a route normally taken to Philadelphia and not to Memphis, he was not acting within the scope of his employment.
But Corporal McSwain was traveling east in the direction of Memphis at the time of the accident, even though he was not traveling on the most direct route from Camp Pendleton to Memphis and even though he intended to first go to Philadelphia. Moreover, Corporal McSwain would not have been on his way east at all were it not pursuant to orders from his employer, the United States Government. Being impelled to travel east by personal motives and pursuant to orders simply creates a dual purpose situation. In such a situation, which again is strikingly similar to the situation in Courtright, supra, where the serviceman was intending at the time of the accident to attend to personal matters before proceeding to his assigned duty station, Colorado would, in our opinion, conclude that Corporal McSwain was acting within the scope of his employment.
Admittedly, the fact that Corporal McSwain was not using a direct route to Memphis from Camp Pendleton at the time of this accident affords a basis upon which this case may be distinguished from Courtright, supra. But the fact remains that he was traveling east in the direction of Memphis to effectuate a permanent change of duty station; he was doing so pursuant to orders; and he would not have been doing so were it not for those orders. Certainly, the interests of the United States Government in effectuating a permanent change of duty station were being substantially furthered at the time of this accident. Under the circumstances, although there is a distinction between this case and Courtright, supra, the distinction is not of sufficient substance to justify our reaching a contrary conclusion. The desirability or wisdom of the result is a matter for Colorado. Our conclusion here merely recognizes and gives effect to it.
Accordingly, the motions of the United States to dismiss this action and for summary judgment will be denied.