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MCSWAIN v. UNITED STATES

October 28, 1968

Dorothea E. McSWAIN and Stella McSparran, Admx. of the Estate of Tracy L. McSwain, deceased,
v.
UNITED STATES of America v. Herbert L. McSWAIN



The opinion of the court was delivered by: TROUTMAN

 This is an action for personal injuries arising out of a single car accident which occurred in Colorado. The plaintiffs are the wife and the administratrix of the estate of the daughter of the owner and operator of the automobile, who was then a Corporal in the United States Marine Corps. Both the wife and daughter were passengers in the automobile and all involved in the accident were Pennsylvania domiciliaries at the time of the accident.

 On August 29, 1962, Corporal McSwain received orders for a permanent change of duty station from Camp Pendleton, California, to Memphis, Tennessee. He was afforded four days' travel time and twenty days' delay enroute, chargeable to leave, to reach his destination. He was to be reimbursed for mileage to his new duty station at the rate of six cents per mile for himself and six cents per mile for his wife. The accident which gave rise to this lawsuit occurred on September 1, 1962, while Corporal McSwain was proceeding east on Route 40, approximately one mile west of Wild Horse, Colorado.

 This action was instituted against the United States pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., which subjects the United States to liability for personal injuries caused by the negligence or wrongful act or omission of any employee of the government while acting within the scope of his office or employment. *fn1" The government then joined Corporal McSwain, the owner and operator of the automobile, as a third-party defendant in the action.

 Presently before the Court for disposition are the motions of the United States to dismiss this action, contending that as to the wife's claim this action is barred by the interspousal immunity doctrine which precludes the maintenance of personal injury actions between spouses, and for summary judgment, contending 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. *fn2"

 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. *fn3" 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. *fn4"

 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. *fn5"

 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, *fn6" 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 ...


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