Gilkey v. United States (213 F. Supp. 387, 1963)

JOHN E. MILLER, Chief Judge.

This is a suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.

The plaintiff, Walter Franklin Gilkey, as the duly appointed, qualified and acting special administrator of the estate of Dorothy Gilkey, deceased, seeks to recover from defendant, United States, damages on behalf of the estate of the deceased in the sum of $201,750.00 and also in his individual capacity for personal injuries and property damages in the sum of $203,450.00.

In his complaint, filed herein on December 29, 1961, he alleged that the court has jurisdiction of this action under the provisions of 28 U.S.C. § 1346(b).

That on February 7, 1961, at about 9:40 a. m., the plaintiff was driving his Pontiac automobile in an easterly direction on Highway 22 in Logan County, Arkansas, accompanied by his wife, the deceased, and their young daughter, Vicki Jean Gilkey, age 4.

That at that time Colonel Ernest L. McDaniel was driving an automobile in a westerly direction on said highway'; that the said Colonel McDaniel was driving in a negligent and careless manner, at a high rate of speed, on the wrong side of the highway and in the traffic lane rightfully being traveled by plaintiff; that in an effort to avoid colliding with the automobile being driven by Colonel McDaniel, plaintiff was forced to drive his automobile to his right onto the shoulder of the highway; that the shoulder was covered with snow and ice, and through no fault of the plaintiff caused his automobile to skid out of control broadside down his right side of the highway. The automobile being driven by McDaniel collided with that of plaintiff with great force and violence, causing the death of the deceased and injuries and damages to plaintiff.

At the time of the collision Colonel McDaniel, an officer in the Arkansas National Guard stationed at Camp Robinson, North Little Rock, Arkansas, was driving a 1957 Chevrolet automobile owned by the U. S. Army. Colonel Robert J. O’Donnell, an officer in the U. S. Army then stationed at Camp Robinson, and now stationed at Ft. Sill, Oklahoma, was a passenger in said vehicle. Said officers were en route from Camp Robinson to Fort Sill, Oklahoma, to attend a pre-camp conference of U. S. Army officers who were later to conduct a National Guard camp at Fort Chaffee, Arkansas. “Both of said officers were, at the time of said collision engaged in official duties with the U. S. Army and were acting within the scope of their employment by the United States.”

That the aforesaid automobile had been assigned to Colonel O’Donnell for his use in carrying out his official duties as an officer of the U. S. Army and for his use in making the trip to Fort Sill, Oklahoma, on February 7,1961; that the said Colonel O’Donnell had the right to control and direct the operation of the said automobile at and prior to the collision; that Colonel McDaniel was driving the automobile at the time of the collision, “at the direction and request of Colonel O’Donnell, who was in command of said vehicle. Alternatively, Colonel O’Donnell and Colonel McDaniel had a joint or equal right of control over said vehicle at and prior to said collision. Said officers were engaged in a joint enterprise and the negligence of both of them in causing said collision is imputed to the defendant.”

Paragraph numbered 6 of the original complaint is as follows:

“6. Said accident, collision, and resulting death, injuries, and damages were directly and proximately caused by negligence on the part of the said Colonel Ernest L. McDaniel, consisting, among other things, of the following:

“(a) In failing to yield one-half of the traveled portion of the highway to plaintiff;

“(b) In failing to keep a proper lookout and observe plaintiff approaching from the opposite direction ;

“(c) In failing to keep his automobile under control and on his right-hand side of the highway so as to give plaintiff sufficient clearance for safe passage of his automobile;

“(d) In operating his automobile at an excessive, negligent, and reckless rate of speed under the conditions then and there existing;

“(e) In failing to take every or, in fact, any reasonable precaution to avoid collision with plaintiff and to prevent injury to him and his property; and

“(f) That the said Colonel Ernest L. McDaniel then and there saw plaintiff, in a position of imminent peril in time, by the exercise of ordinary care in use of all the means at his command consistent with the safety of himself and others, to have slackened the speed of his automobile, or stopped it, or turned it aside and avoided the collision with plaintiff and the consequent injuries to plaintiff and the said Dorothy Gil-key, but that the said McDaniel failed so to do, and failed to take any care or caution to avoid or prevent collision with plaintiff.”

By the amendment to the complaint, a new paragraph, 6A, was added, as follows:

“6A. Said accident, collision, and resulting death, injuries, and damages were directly and proximately caused by negligence on the part of the said Colonel Robert J. O’Donnell, consisting, among other things, of the following:

“(a) In failing to direct Colonel McDaniel to yield one-half of the traveled portion of the highway to plaintiff;

“(b) In failing to keep a proper lookout and observe the plaintiff approaching from the opposite direction;

“(c) In failing to direct Colonel McDaniel to keep the automobile under control and on his right-hand side of the highway so as to give plaintiff sufficient clearance for safe passage of his automobile;

“(d) In permitting Colonel McDaniel to operate the automobile at an excessive, negligent, and reckless rate of speed under the conditions then and there existing;

“(e) In failing to direct Colonel McDaniel to take every or, in fact, any reasonable precaution to avoid collision with plaintiff and to prevent injury to him and his property; and

"(f) In failing to direct Colonel McDaniel, after he (Colonel O’Donnell) had observed plaintiff, in a position of imminent peril, to have slackened the speed of the automobile, or stopped it, or turned it aside and avoided the collision with plaintiff and the consequent injuries to plaintiff and the said Dorothy ■Gilkey, but that the said Colonel O’Donnell failed to warn the said Colonel McDaniel, and failed to take any care or caution to avoid or prevent collision with plaintiff, although he observed the plaintiff in a position of imminent peril in time to have so directed the said Colonel McDaniel and in time for the said Colonel McDaniel, by the exercise of ordinary care in the use of all the means at his command consistent with the safety of himself and of others, to have taken said action.”

As a result of the negligence of the said Colonel McDaniel and Colonel O’Donnell, Dorothy Gilkey sustained injuries in said collision which caused her death on February 7, 1961. (Then follows allegations pertaining to the age, number of children, etc., of the deceased.)

That as a result of the said Colonel McDaniel’s and Colonel O’Donnell’s negligence, plaintiff sustained severe and permanent injuries. (Then follows an allegation of the various injuries claimed to have been sustained by plaintiff individually.)

In due time the defendant filed its answer denying each and every allegation of negligence as alleged by the plaintiff, and alleged that the plaintiff was negligent in the operation of his automobile, which negligence was the sole and proximate cause of the collision, and in the alternative that the plaintiff was guilty of negligence of such degree that any recovery by plaintiff should be reduced in proportion to the said negligence of the plaintiff.

That the deceased was guilty of negligence in failing to keep a proper lookout for her own safety, that the deceased and the plaintiff were engaged in a joint enterprise, and that the negligence of the plaintiff was imputed to the deceased.

The defendant included as a part of its answer a counterclaim against the plaintiff, the allegations of which are omitted. However, numbered paragraph 3 of the counterclaim was dismissed by the court on November 19, 1962.

The case was tried to the court on January 11, 1963, and at the conclusion of the presentation of the testimony the case was taken under advisement, subject to submission by the parties of briefs in support of their respective contentions. The briefs have been received, and the court has considered the pleadings, the testimony adduced at the trial, the exhibits and briefs of counsel.

The plaintiff, prior to February 7,1961, was a citizen of the State of Missouri and resided near the small town of Fisk in said State. On that date he and his wife and young daughter had been visiting relatives in Muldrow, Oklahoma. They had planned to leave Muldrow on the morning of February 7. During the night of the 6th of February a rather heavy snow fell in the area, which extended to near Little Rock, Arkansas, and the snow continued to fall intermittently, but the plaintiff and his family left Muldrow at 7:00 a. m. the next day. They were traveling in a 1957 Pontiac which was driven by plaintiff. They drove through Fort Smith, and then easterly on State Highway 22 and had reached a point approximately 1% miles east of New Blaine, Arkansas, when the automobile which the plaintiff was driving collided with an automobile that was being driven by Colonel Ernest L. McDaniel, accompanied by Colonel Robert J. O’Donnell. While it was snowing intermittently during all of the journey, no snow was falling at the time when the collision occurred which was approximately 9:40 a. m. on February 7, 1961.

The concrete pavement of the highway at the place of the collision is 18 feet wide. Although the snow covering the highway and the shoulders varied from 3 to 4 inches in depth, the passage of vehicular traffic had cleared substantially the snow from the portion of the pavement traversed by vehicles in both lanes of travel. Thus in each lane there were well-defined paths practically clear of snow. The two traveled paths in each lane were approximately 18 inches wide. The outside paths were approximately 18 to 20 inches from the edge of the pavement, and the inside paths were separated by a center strip of snow and ice approximately 24 inches in width. The shoulders of the highway in this area were several feet wide with a gradual and moderate decline from the pavement to the edge of the highway right of way; however, there was a drop-off of from 4 to 6 inches from the pavement on both sides which was not discernible due to the recent snowfall. The road ran east and west, was straight and level, and its view was unobstructed for a distance of at least 200 feet in each direction from the point of impact.

On the same morning Colonel McDaniel, an officer in the Arkansas National Guard, was driving a 1957 Chevrolet, owned by the U. S. Army and loaned to the Arkansas National Guard, in a westerly direction at the place of the collision. He was accompanied by Colonel O’Donnell, an officer in the U. S. Army and Senior Advisor to the Arkansas National) Guard. Colonel McDaniel, acting under orders issued by the Arkansas National Guard, and Colonel O’Donnell, acting under orders issued by the U. S. Army, were en route from Camp Robinson, North Little Rock, Arkansas, to Fort Sill, Oklahoma, to attend a pre-camp conference of U. S. Army officers who were to' conduct a National Guard summer camp. The Chevrolet had been dispatched to Colonel O’Donnell as first operator by the Arkansas National Guard motor pool earlier that morning at 5:30. Since each, of the officers had been ordered to attend the conference, Colonel O’Donnell drove to Colonel McDaniel’s house on the post and McDaniel entered the automobile. They left North Little Rock at 6:00 a. m.

Although their respective orders specified only that they were to travel in a Government owned vehicle, it had been customary for these officers, whose duties were correlative, to travel together when they had a similar destination. When they reached Morrilton, Arkansas, they stopped at an Army Reserve Center in order to radio ahead to Fort Sill and check on the weather conditions, and •when they resumed their trip, Colonel McDaniel began driving the automobile.

Immediately prior to the accident the plaintiff was driving his car at a speed of approximately 40 miles per hour, and he was traveling easterly in the proper lane with the wheels of his automobile in the paths formed in the snow on the concrete surface. As he was coming out of a gentle curve to the left, he saw the vehicle driven by Colonel McDaniel come over an incline 400 feet away. It appeared to the plaintiff that the other vehicle was straddling the center line of the snow in the highway. Plaintiff took his foot off the accelerator, and when the other car did not seem to change its position, plaintiff steered his car to the right and dropped off the conCrete pavement to the shoulder on his side of the road. At this time the automobiles were 100 to 125 feet apart, and plaintiff had reduced his speed to approximately 15 or 20 miles per hour. As his right front and right rear wheels went off the pavement onto the shoulder, his car began to weave out of control. When the cars were approximately 60 feet apart, the plaintiff’s car began to skid sideways at a speed of approximately 15 miles per hour, and it was in that position when the collision occurred.

Colonel McDaniel immediately prior to this time was driving at a speed of approximately 40 miles an hour, and he was keeping the wheels of the Chevrolet in the traveled paths formed in the snow on his own side of the road. He had seen the plaintiff emerge from the curve as the Chevrolet reached the crest of the incline in the road. At this time the cars were at least 400 feet apart. When the cars were 100 feet apart, he noticed that the plaintiff’s car began to weave or “wobble.” When the cars were approximately 60 feet apart, the plaintiff’s car suddenly began to slide broadside, blocking both lanes of travel, and Colonel McDaniel had enough time only to get his foot off the gas and on the brake pedal before the cars collided.

At the time of impact the front end of the Chevrolet struck the right side of the plaintiff’s Pontiac between the front wheel and the corner post of the windshield. As a result of the impact, the plaintiff’s Pontiac came to rest in its original eastbound lane, facing in a southwesterly direction with its right rear wheel over the center line. The Chevrolet driven by Colonel McDaniel left the road on its right side and ran into a ditch. It came to a stop headed in a northwesterly direction.

The only visible mark left by the automobiles on the pavement was a scratch or gouge caused by some part of the Pontiac’s body frame under the right corner post of the windshield, which began at the location of the collision at a point near the center of the westbound lane, extended in an arc to approximately 8 inches from the north edge of the pavement and ended where the Pontiac came to rest in the eastbound lane. As a direct result of the collision, the plaintiff’s wife was killed instantly; and the plaintiff himself suffered severe and permanent injuries to his neck and leg, which the court will not set out in detail for the reasons hereinafter discussed.

Title 28, U.S.C. § 2674, provides that the United States shall be liable in tort “in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

Title 28, U.S.C. § 1346(b), provides that the United States District Court “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.”

Title 28 U.S.C. § 2671, provides:

“ ‘Employee of the government’ includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

“ ‘Acting within the scope of his office or employment’, in the case of a member of the military or naval forces of the United States, means acting in line of duty.”

The use of the automobile while Colonel McDaniel was driving was authorized by the Adjutant General, Arkansas National Guard. He was proceeding to a pre-camp conference at Fort Sill, Oklahoma, upon an order issued by the Adjutant General of the State of Arkansas under the authority given by the National Guard Bureau of Washington, D. C.

At the time of the collision, Colonel McDaniel was not in active federal service.

Title 10 U.S.C. § 3495, provides:

“Members of the Army National Guard of the United States are not in active Federal service except when ordered thereto under law.”

Title 10 U.S.C. § 101(22), provides:

“ ‘Active duty’ means full-time duty in the active military service of the United States. It includes duty on the active list, full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.”

The statutes which authorize the President to order members of the Army National Guard of the United States into active federal service are found in Title 10 U.S.C. § 3500, paragraphs (1), (2) and (3); Title 50 U.S.C. Appendix, § 451(d).

Colonel O’Donnell was on February 7, 1961, and is now an officer in the U. S. Army and was riding with Colonel McDaniel at the time of the collision. There was an administrative finding that the injuries received by Colonel O’Donnell were in the line of duty and not due to his own negligence or misconduct. He had been ordered by the U. S. Army Advisor Group to attend the pre-camp conference at Fort Sill. The aiito-mobile in which the officers were driving was dispatched to Colonel O’Donnell as the first operator on Vehicle and Equipment Operational Record DD, Form 110, for the trip to Fort Sill. The use of the vehicle to make said trip was authorized by the Arkansas National Guard, although it was owned by the U. S. Army, but had been issued and assigned by the U. S. Army to the Arkansas National Guard.

Order No. 23, Headquarters, U. S. Army, Advisor Group National Guard, was dated February 3, 1961, and ordered Colonel O’Donnell on temporary duty from North Little Rock, Arkansas, to Fort Sill, Oklahoma, on or about February 7, 1961, for approximately four days in connection with National Guard activities. He was to go and return by government vehicle.

Colonel McDaniel, while driving the automobile, was not subject to direction or discipline by Colonel O’Donnell, notwithstanding that Colonel O’Donnell was first granted a temporary commission as Colonel on January 31, 1955, and a permanent regular Army commission on April 15, 1961, while Colonel McDaniel was commissioned a Colonel in the Arkansas National Guard on July 25, 1960. Neither was subject to orders of the other. They were traveling companions and both were acting in accordance to the orders received from their respective superiors.

Without doubt, at the time of the collision Colonel McDaniel was not an employee of the United States. He was an Arkansas National Guard officer and acting under orders of the Adjutant General of the Arkansas National Guard. Ordinarily the United States is not liable for negligence of a member of the Army National Guard unless he is in active federal service. Dover v. United States (5 Cir., 1951), 192 F.2d 431; Williams v. United States (10 Cir., 1951), 189 F.2d 607; McCranie v. United States (5 Cir., 1952), 199 F.2d 581, cert. den. 345 U.S. 922, 73 S.Ct. 780, 97 L.Ed. 1354; United States v. Prager (5 Cir., 1958), 251 F.2d 266; Storer Broadcasting Company v. United States (5 Cir., 1958), 251 F.2d 268.

In the case of Spangler v. United States (S.D.Ohio 1960), 185 F.Supp. 531, the court said:

“The sole issue involved in this controversy is whether or not a person engaged in training with a National Guard Unit during the two week active duty for training period provided for in Title 10 U.S.C.A. § 672(b) and Title 32 U.S.C.A. Sec. 502(a) is an employee of the United States Government within the meaning of Title 28 U.S.C.A. § 1346