(26) Gezovich agreed to take those individuals home since he wished to keep in favorable contact with Silver and Strickenbarger whom he regarded as valuable "contacts"; Strickenbarger had some information about the four prospective recruits, and Gezovich wanted the opportunity to have further conversation with Simpson in the event she might be a potential recruit.
(27) Gezovich testified he would not refuse to ride to Mrs. Silver because "she had helped me out a lot" in his recruiting duties and that he considered it beneficial to the Marine Corps to give all of his passengers a ride home.
(28) Stephen Strickenbarger corroborated the testimony of Sgt. Gezovich in that he had supplied in the past "leads" for Gezovich; on the night of the accident he was going to give Gezovich information regarding four individuals who might be interested in joining the Marine Corps; that he himself was considering enlisting in the Marine Corps; and that he needed a ride to his home.
(29) Gezovich was at Knight's bar less then one hour and departed with Strickenbarger, Silver and Simpson.
(30) The four went to the U.S. Marine Corps vehicle and drove to Franklin where they made a brief stop so Simpson could pick up some clothes.
(31) Sgt. Gezovich intended to take Silver and Simpson to Silver's residence south of Oil City and from there take Strickenbarger to Strickenbarger's home near Cranberry, Pennsylvania southeast of Oil City so he (Gezovich) could obtain the information regarding the four prospective recruits from Strickenbarger.
(32) Gezovich was proceeding south from Franklin via U.S. Route 62 and was en route to Silver's residence at the time the accident occurred.
(33) At the time of the accident, Gezovich was dressed in his U.S. Marine Corps sergeant's uniform.
(34) In a companion case at Civil Action 78-103 Erie, Gezovich, a named defendant in the case, admitted at the time of the accident that he was on government business within the scope of his employment.
(35) The plaintiff's decedent, Susan Marie Simpson, was born December 21, 1958, and had graduated from Franklin Pennsylvania High School in June of 1977.
(36) At the time of her death, Miss Simpson was unmarried and in good physical health except for some asthmatic problems in very hot weather.
(37) Miss Simpson was a normal active female who appeared to enjoy life and her work.
(38) At the time of her death, Miss Simpson was employed as a Student Aid under a CETA program administered by the Mercer County Consortium Services, Inc. at the Venango County Pennsylvania Courthouse, earning $ 2.30 per hour. (Simpson Ex E & F)
(39) Dr. Reuben E. Slesinger, an economist affiliated with the University of Pittsburgh, testified that as of July 17, 1979, a nineteen-year old female high school graduate would have potential prospective lifetime earnings, less cost of maintenance reduced to present worth of $ 65,925.00 and that the same calculations for a college graduate would amount to the sum of.$ 80,795.00.
(40) The plaintiff proved the following expenses in connection with his claim:
(41) The plaintiff, David E. Sandstedt, was operating his 1974 Chrysler in a northerly direction on U.S. Route 62 in French Creek Township, Venango County, Pennsylvania on July 12, 1977.
(42) The accident in question was caused solely by the negligence of Stephen M. Gezovich and there was no negligence on the part of David E. Sandstedt, which contributed to the cause of the accident.
(43) The damages to the plaintiff's vehicle were so extensive that it rendered the vehicle a total loss, said damages totalling $ 2,578.20.
(44) After the collision, the plaintiff ran over to the Government vehicle and while face to face with Sergeant Gezovich could not detect any odor of alcohol on his breath or any evidence of beer cans in the government vehicle.
(45) Trooper James Catanzsarito investigated the accident and then travelled to the Franklin Hospital to interview Sergeant Gezovich at which time he was unable to detect any odor of alcohol on the defendant's breath.
(46) There was evidence that some beer cans were found in an adjacent field after the accident but there is no showing of any connection between the beer cans and Sergeant Gezovich.
(47) At the time of the accident there were four occupants in the government vehicle: Stephen Gezovich, age 23, the driver, Lori Silver, age 20, a front seat passenger sitting next to Gezovich, Susan Simpson, age 18, a rear seat passenger sitting directly behind the driver and Stephen Strickenbarger, age 18, a rear seat passenger sitting on the far right.
(48) Miss Simpson survived the impact but died thereafter, prior to arrival at Franklin General Hospital.
(49) Gezovich's recruiting office was in Oil City, Pennsylvania. At the time of the accident his duty hours were from 9:00 a.m. to 9:00 p.m.
(50) The accident occurred at or near the Silver Home 2.1 miles south of the intersection of Route 8 and 62 or approximately 31/2 miles west of Franklin. Strickenbarger resided near Cranberry, approximately 8 miles east and slightly south of Franklin near U.S. 322. The Route from the accident scene therefore runs on almost a straight line from west to east a distance of approximately 111/2 miles.
(51) The court finds that Gezovich was taking Silver and Simpson to Silver's home and was then going to take Strickenbarger to his house near Cranberry to get further information as to the four possible recruits Strickenbarger had mentioned to Gezovich.
(52) The attempts by the government to show beer drinking during the course of the evening and in the car did not succeed. Such evidence did not rise by any means to a demonstration of unfitness to drive as required by Pennsylvania law, for evidence of intoxication to be brought into the case. This evidence, however, was also permitted as bearing upon the question as to whether Gezovich was on a frolic of his own and in violation of government regulations. The court holds that the government proof does not show a frolic of Gezovich's own, but that he credibly was engaged in attempting to secure recruits and information as to potential recruits for the Marine Service. As noted, his recruiting duties also included the securing of women marines. Any violation of the regulations that may have occurred as a result of having beer in the car (certain cans unopened, two cans opened) did not have any causal connection with the happening of the accident.
(53) Susan Marie Simpson was conscious for a short period of time following the accident. On response to a question as to whether she was injured, she said she was "Okay" and then laid her head back.
(54) Susan Simpson was conscious after the accident but died prior to arrival at Franklin General Hospital as the result of injuries sustained in the accident. The other three occupants were not seriously injured.
These suits are brought under the Federal Tort Claims Act against the United States as defendant. Such suits are provided for in 28 U.S.C. § 1346 which provides as follows:
"(b) Subject to the provisions of Chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or 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 to the claimant in accordance with the law of the place where the act or omission occurred."
It is noted that this section is peculiarly applicable to this case where we have questions as to whether Gezovich was acting within the scope of his employment at the time of the accident and whether the United States, if a private person, would be liable to claimant in accordance with Pennsylvania law.
We must therefore approach determination of this case in the same manner as we would approach an ordinary accident on a Pennsylvania highway to determine liability.
1. Liability of the driver.
It is clear from 1346(b), supra, that the determination of the driver's negligence as being the proximate cause of this accident is a question which must be decided under Pennsylvania law. It is the law in Pennsylvania that in wrong-side-of-the-road accidents where, as here, defendant is on the wrong side of the road at the time of impact, negligence can be inferred unless the defendant can explain his presence in the wrong lane. I. e., the burden is upon the defendant to show that he got upon the wrong side of the highway at the time of the accident through no negligence on his part. See Campbell v. Fiorot, 411 Pa. 157, 191 A.2d 657 (1963); Fair v. Snowball Express Inc., 226 Pa.Super. 295, 310 A.2d 386 (1973); Keba v. Pickett, 434 Pa. 148, 252 A.2d 675 (1969).
In the instant case, Sgt. Gezovich did attempt to explain his presence on the wrong side of the road by saying he did not know where the driveway to the Silver house was, that he made a turn at the wrong place and realized this was not the driveway and swung back trying to get onto his own side of the road. He was still in the wrong lane when he was struck by the Sandstedt car which came over the crest of a hill. The Sandstedt car was on its own side of the road with the driver keeping proper observation ahead and proceeding at a reasonable rate of speed. The explanation given by Sgt. Gezovich is only further evidence of his negligence in getting on the wrong side of the road under these circumstances. We therefore have no hesitation in holding that Gezovich was negligent and this negligence was the proximate cause of the accident.
2. Contributory Negligence.
Upon review of the evidence, the court is unable to determine any basis upon which to make a finding that either the decedent Susan Simpson in 78-62 Erie or David Sandstedt the driver and plaintiff in 78-103 Erie were in any way to blame for this accident. Susan Simpson was riding as a guest passenger in the left rear seat of the car and had no control over its operation. The driver owed her a duty of ordinary care. Under these circumstances, we find no contributory negligence on the part of plaintiff decedent in 78-62 Erie or on the part of Sandstedt as plaintiff in 78-103 which would bar or reduce recovery.
3. Liability of the United States for acts of Gezovich.
Having found Sgt. Gezovich was guilty of negligence which was the sole proximate cause of the accident, we next turn to the question of whether the United States is liable for his conduct. Again, turning to 28 U.S.C. § 1346(b), supra, we find that the government is liable if the employee is acting within the scope of his office or employment under circumstances where the United States as a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. While it might be argued that this act sets up a federal law of vicarious liability on the part of the United States for the acts of its employees, actually it says no more than that Pennsylvania law is to be applied. This was so held by the U.S. Supreme Court in Williams v. U. S., 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761 (1955) vacating the judgment of the Ninth Circuit in 215 F.2d 800 (9th Cir. 1954). The U. S. Supreme Court in this per curiam opinion plainly stated: "This case is controlled by the California doctrine of respondeat superior." By the same token, we hold that the instant case is governed by the Pennsylvania doctrine of respondeat superior.
There is a long line of Pennsylvania cases holding as set forth in Sefton v. Valley Dairy Company, 345 Pa. 324, 28 A.2d 313 (1942) that: "It is well settled by our previous decisions that the presence of a defendant's name on a commercial vehicle raises a rebuttable presumption that the vehicle is owned by defendant and that the driver of the vehicle is a servant of defendant acting within the scope of his employment," citing numerous cases including Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867; Sieber v. Russ Bros. Ice Cream Co., 276 Pa. 340, 120 A. 272. The defendant argues that this is a question of presumptions which are matters of procedure for the federal court. We noted that the Pennsylvania courts only treat this as a rebuttable presumption, i. e., as a basis for an inference. In the instant case, the mere fact that the Marine Corps insignia was inscribed on each side of this government-owned car operating with a government license plate justifies an inference that the operator was driving as an employee within the scope of his employment. In addition, we have the other factors: Sgt. Gezovich was in full dress Marine Sergeant's Uniform, the car bore U.S. Government license plates, and Gezovich had a government driver's license. All these facts taken together are sufficient to raise a rebuttable inference that Gezovich was on government business as an employee within the scope of time of the accident. The court holds that the evidence produced by the government is not sufficient to wipe out this inference.
The presumption above referred to has been applied by Judge Gourley of this court in Caldwell v. Wilson Freight Forwarding Co., 322 F. Supp. 43 (W.D.Pa.1971) involving a presumption arising from a name on a tractor trailer. It appears that no Pennsylvania court has applied this presumption to an ordinary passenger automobile which is not being used for commercial purposes.
The facts in this case would seem to place it in the category of commercial motor vehicle cases since it was a U.S. Government car bearing a government license plate and with Marine Corps insignia decals on each side. However, we do not have to apply a presumption since the court has held that there is an inference that the vehicle was being used on government business and that the government has produced insufficient evidence from which we can infer otherwise.
Under the Pennsylvania law of respondeat superior, when we are dealing with a passenger vehicle used on government business, we must consider the totality of all the circumstances of the case. Winward v. Rhodewalt, 203 Pa.Super. 369, 198 A.2d 623 (1964). In such a situation Pennsylvania applies the principles set forth in section 228 of Restatement 2d of Agency as set forth at 198 A.2d page 624 of Winward, supra, as follows:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;