Full opinion text
RITTER, Chief Judge. The present actions, under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), § 2671, and § 2674, arise out of a head-on collision which occurred in Utah when Airman First Class Williams, a member of the military forces of the United States, driving his own automobile, ran into an automobile driven by Norman Day. Norman Day was killed, and three other men, passengers in the car driven by him, were seriously injured, one of them suffered a broken back and is 100% disabled. Helen N. Day, the widow of Norman Day, for herself, and as the guardian of their minor child, Roban Day, the three passengers, Platis, Jones and Maricich brought these suits against the United States, alleging that Airman First Class Williams was negligent, that his negligence was the direct and proximate cause of the accident, that he was an employee of the government acting within the scope of his employment, and that his employer, the United States was liable vicariously under the doctrine of respondeat superior. The United States answered and entered a general denial, plead contributory negligence, which was not proved. In this state of the record, there are three questions to be answered: 1. Was Williams negligent and did his negligence cause the collision ? 2. Was Williams an employee of the United States acting within the scope of his employment? 3. What, if any, damage was suffered ? We proceed to the evidence on these issues. NEGLIGENCE At about 7:30 a. m., June 25, 1965, four miles west of Green River, Utah, a member of the United States Air Force, Airman First Class Williams, driving west on Highway U.S. 50 & 6, ran into a car driven by the decedent Day, who was driving east on the same highway with three other men in the car. They were on their way to work at the Atlantic Research & Missile Plant in Green River. It was a bright clear day, no clouds, and the sun was up. The road conditions were good, dry and level, a hard surfaced interstate highway, straight for a long distance both ways. The impact was at a “T” junction of Highway U.S. 50 & 6 and Highway U-24, known as the Hanksville road, which takes off from the main highway and runs southerly. The highway east of the junction was plainly marked with a sign “JUNCTION AHEAD”, and a sign “U-24” with arrow pointing south, and “U.S. 50 & 6” with arrow pointing west. The highway at the junction was also plainly marked by three warning lines painted on the hard surface: a center broken white line and two yellow lines, one on each side of the broken white line, which indicated no passing at that point. And, those markings on the pavement extended back easterly toward Green River for a distance of approximately 900 feet. There were similar warnings for cars approaching the junction from the west. The cars had struck and come to rest in the approach to Highway U-24, clear over beyond the line of the shoulder on the south side of U.S. 50 & 6. Day had tried desperately to avoid the collision. His car laid down 97 feet of brake marks prior to the impact. He had pulled over to his extreme right until the marks of all four wheels were in the borrow pit, and the car slid along it to the point of impact. The Williams car left no skid, scruff or brake marks of any kind anywhere on the road. Airman Williams says in his deposition that he followed a white car out of Green River until it stopped at the Hanksville Junction. Two passengers in the Day car who survived gave eye witness accounts. As they approached the intersection they saw a white car stopped there. They noticed another car (Williams) coming up behind it which “just came over in our lane of traffic, swung around the car and came into our lane of traffic.” They saw the (Williams) car cross over the double yellow line, cross over the highway, and “it just turned right out in front of us and hit us.” The white car was attempting to make a left turn onto U-24. Witness Platis testified that he saw the left turn signal light operating on this car. The testimony of Jones was that he saw the left turn signal light operating and also a hand signaling a left turn. To the judge advocate at Hill Air Force Base, 19 days after the accident, Airman Williams gave a written sworn statement in which, he said: “I later found the vehicle in question (white car) was stopped and was going to make &■ left turn. At the time I observed the vehicle initially no signal was apparent; however between the time I first observed the vehicle and the time I realized that he was stopped, he did signal for a left turn.” This sharply conflicts with his deposition taken nearly two years after the accident in which he says he saw no hand signal from the car and no turn light signal. So Williams crossed over the double yellow and broken white lines. Not only that. He crossed over the entire width of what was for him the wrong side of the highway, crowded the Day car off the highway into the borrow pit and to the point of impact on U-24. And Williams crossed those “NO PASSING” lines and passed the white car on the left while it was stopped at the intersection, signaling for a left turn in a lawful manner. That Williams was attempting to avoid a rear end collision with the stopped white vehicle is admitted in the written sworn statement to the judge advocate 19 days after the accident: “I attempted to brake my vehicle to avoid a rear end collision with the stopped vehicle.” And again he admitted it in his statement, two months after the accident, to an insurance adjuster in Portland: “I remember I was trying to avoid rear-ending another car — .” But, when his deposition was taken nearly two years after the accident, he said in reference to this statement, “At that time (in Portland) I didn’t know exactly what happened.” Note, however, he does not repudiate the same admission to the judge advocate 19 days after the accident. His memory two years after the accident ordinarily would not be as clear as 19 days or two months after. It is significant, also, that the only thing he remembered when he talked to the insurance adjuster in Portland was this statement. Williams was following another vehicle more closely than was reasonable and prudent. In his deposition taken in April 1967, Williams tells us that he had followed a white car out of Green River for quite a distance, (four miles), which had been traveling “right in front”, at the same rate of speed apparently, 50 to 55 miles an hour, and “all of a sudden” he realized this car was “stopped or was slowing down, and I braked my car and this is where the accident started.” The white car “appeared to be stopped in ' my lane of traffic, yes.” “Suddenly the distance shortened,” and he tells us he thought he had to stop because of the rapid rate he was overtaking the white car. “Just before” he got “back of the white car” his car swerved to the left. “Upon hitting my brakes I began an immediate swerve into the left lane of traffic. At this time I saw there was an oncoming vehicle in the left lane.” When he braked the car, it swerved to the left-hand lane and “I lost control of it.” Williams failed to keep a reasonable and prudent look-out for approaching traffic. His testimony indicates he was keeping no look-out at all. Nowhere in his testimony does he say he was looking ahead, on the watch for approaching cars. The government attorney wholly neglected to ask him about that. If he had looked, he could have seen the Day car coming from a long distance up the road. It was a bright, clear morning, no clouds, and the sun was up. The sun was behind him and caused him no difficulty. The road conditions were good, dry and level. The highway was relatively straight. His view was unobstructed for a long distance up the road. A photograph in evidence shows these road conditions. There was no traffic except the three cars of plaintiff,, defendant and the white car. When did Williams see the Day vehicle ? His testimony is: “Upon hitting my brakes I began an immediate swerve into the left lane of traffic. At this time I saw there was an oncoming vehicle in the left lane.” He also says at no time prior to the collision did he see the vehicle he hit. “When I realized there was another car in the left lane it was too late.” When I swerved into the other lane, I saw him, but it was just a'split second. I couldn’t tell what kind of car it was or anything else. It was just there.” To counsel’s question: “Q. Approximately how many seconds elapsed from the time you first noticed the white ear slowing down until you swerved across the center line”, Williams answered: I don’t know. Very, very few. A very short time * * * two or three seconds.” Williams was not in the exercise of ordinary and reasonable care and prudence to keep his car under proper control. The witnesses in the Day car saw Williams’ car come up behind the white car, swing around it, and come into their lane of traffic. They saw Williams’ ear cross over the double yellow line, cross over the highway, and “it just turned right out in front of us and hit us.” To the highway patrolman at the scene, Williams stated: that he really didn’t know what prompted him to make “the pass; he must have been fatigued or road hypnotized.” To the judge advocate and to the Portland insurance adjuster Williams said he attempted to brake his vehicle “to avoid a rear end collision with the stopped vehicle.” When the car swerved he “lost control of it.” Williams admits in his deposition that he lost control of his car and panicked. “Q. After you swerved over the center line, what next happened ? “A. I lost control of the vehicle.” * * * “Q. Had you not lost control of the vehicle, would you be (sic) able to move back across the center lane and avoid the oncoming ear?” The witness: “I believe so.” And again, he says: “I put on my brakes and the wheel jerked to the left and I might have panicked, but I did lose control of the car.” And again, “But ,at that point where I did lose control of the car, I did panic.” Plaintiff’s counsel asked Williams: “Q. You testified you felt you had enough time to stop as you approached the white car? “A. Yes. “Q. Had you applied your brakes after you lost control, would you have stopped before coming past the white car? “A. I believe so, yes. “Q. If what you believe is correct, then, this collision would not have occurred had you braked? “A. I am quite sure if I had retained control, complete control of the car, I could have avoided the accident, yes. “Q. Do you feel the loss of control of the car was due to your panic or physical condition of that car? “A. I probably did panic. It was due to what already happened. “Q. What caused you to panic? “A. The sudden jerking of the wheel into the other lane of traffic. “Q. Was the panic caused because you saw the approaching Day automobile ? “A. Probably, yes. “Q. If there was no car there, what could have caused the panic? “A. If there was no car there, I doubt that I would have panicked. I could have just brought my car back to the correct lane of travel.” Then the government attorney by suggestive questions led a willing witness back to shelter: “I don’t know what happened; I don’t remember.” “Q. Except for the feeling of the jerk and the car going into the other lane, you really don’t know what happened from that point until the impact, do you ? “A. No, I don’t. As I said, it was just when the ear got into the other lane that I lost control. I may have panicked. I don’t know what happened. “Q. You don’t remember? “A. I don’t remember.” Williams’ deposition is confusing and contradictory. The government attorney cross-examined his own witness, led him, suggesting his answers, which never tends to strengthen a witness’ credibility. For example, the witness Williams was led and his answers suggested when he testified that he did not intend to pass the white car, he was going to stop behind it, and also when the witness denied that he voluntarily turned or swerved into the opposite lane of traffic. The answers are not his; they are the attorney’s. Neither one of them answers the question was Williams looking ahead, on the watch for approaching cars. We wonder why? It is unfortunate that Williams did not testify at the trial. No explanation was given in the record why he came from his base in upper New York State to Las Vegas, Nevada, for his deposition, but did not come to Utah for either the deposition or trial. Williams attempts to relate some causes to the accident, a blow out, a defect in the braking or steering systems, “or something.” When he braked his car it swerved to the left-hand lane “and I lost control of it.” Asked about the type of swerve, he said “it just suddenly cut over as if the left wheel pulled. It jerked the wheel into the left lane * * *. I first thought it might be a blow out.” Asked if he knew of any mechanical defect in his car, he answered, “There must have been in the braking system or steering system or something, which caused it, but I didn’t know beforehand.” The airman’s testimony raises an issue about the condition of his car, particularly the brakes. The highway patrol trooper testified that he tested the brakes on the Williams car at the scene of the accident. He got in the ear and pushed on the pedal to see whether or not there was any brake pedal; and there was. “There was (sic) good brakes.” He cheeked the car twice since. Both times in December 1966. It still had brake fluid in it, and the pedal was still good. Two or three days later he went to the garage to check the brake lining. A hub had been removed. The officer looked at the brake lining, the brake drum and the brake shoe and found them in good condition. They were all right. He found “nothing out of the ordinary in the hub. There was a little black dirt that you will find in any hub if you take it off. There was no grease.” The left front tire was cut and torn by the impact. It was not flat before impact. Under the government attorney’s cross-examination the officer was emphatic: “Q. So, as far as you know, it was damaged by the impact? “A. In my own mind, definitely, that is where it was damaged. “Q. But you couldn’t tell from looking at it whether it was flat before the accident, could you? “A. With my — Not that tire. With our experience, if it had been flat before the impact, a flat tire leaves a mark down the highway. “Q. But you didn’t find any such mark? “A. I sure didn’t. “Q. Did you look for such a mark? “A. You betcha. “Q. Did you ever make any test of the brakes of the Day vehicle? “A. No, sir. “Q. You didn’t check that automobile for brake failure? “A. There was evidence to show that he had brakes. He left 97 feet of skid marks prior to the impact.” Williams testified in his deposition that his car had a state inspection sticker on the windshield at the time of the accident. The car had been inspected in May 1965, around mid-month. He said the inspection consisted of: “a general safety check of the automobile, check of the tire treads, all your glass in the car, check the brakes, the steering, your ball joints, and what have you in the front, shocks, muffler, horn. They go through and pull off your brake drum and inspect your shoes and the lining, brake lining, and check your master cylinder and hose feed for your hydraulic brakes.” When inspected the muffler was repaired, “and I think the left front hose that feeds the brake was repaired also, because it was leaking.” At no time before he left Ent Air Base did he notice a tendency of the car to pull to the left, and he noted nothing wrong with his brakes. Williams drove from Colorado Springs' to Grand Junction “several hundred miles” on U.S. 50, and came over Monarch Pass, a high, steep, mountainous pass. He noticed nothing peculiar about the operation of the car in the mountains. It did not pull to the left on braking. At the time he stopped at a light in Green Biver he noticed nothing peculiar or in particular in regard to the brakes on his car. After Williams had his car inspected in May, he had no occasion to question the condition of his brakes, or his steering apparatus. Williams testified: “Q. Was there any difference in the way the brakes functioned between the time before they were repaired and after they were repaired ? “A. There wasn’t before I had them repaired, there wasn’t enough leakage or whatever it was to be noticeable, actually. The pedal had gone down a little more or something, but I didn’t notice it. “It was when I took the car in for the July (May?) inspection that he told me my brake tube was leaking and so I told them to fix it. “Q. The fact that repairs were needed was brought to your attention by the garage owner; is that correct? “A. Yes. “Q. By the mechanic? “A. Yes. “Q. But you, yourself, noticed no difference in the way the car performed ? “A. No.” In the light of what happened under the circumstances in this case, the court is convinced by at least a preponderance of the evidence that Airman Williams was negligent in the following particulars: 1. In crossing over the “No Passing” lines, and over the entire width of the left hand side of the highway, crowding the Day car off the highway, into the borrow pit, and running into it. 2. In passing the white car on the left while it was stopped at the intersection, signaling for a left turn in a lawful manner. 3. In following another vehicle more closely than was reasonable and prudent. 4. In failing to keep a reasonable and prudent look-out for approaching traffic. Covington v. Carpenter, 4 Utah 2d 378, 294 P.2d 788 (1956). 5. In failing to exercise ordinary and reasonable care and prudence to keep his car under control. Wardel v. Jerman, 18 Utah 2d 359, 423 P.2d 485 (1967). 6. In driving to the left side of the roadway when approaching within 100 feet of or traversing an intersection. 7. In not driving his car within a single lane and moving from such lane without first ascertaining that such movement could be made with safety. At the time of this collision there were laws on the Utah Statute books that imposed upon Williams the duty: (1) To drive his car on the right half of the highway. (2) When overtaking and passing a vehicle proceeding in the same direction to pass to the left of such vehicle at a safe distance. (3) Not to drive to the left side of the roadway when approaching, within 100 feet of or traversing any intersection. (4) Not to follow another vehicle more closely than was reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. (5) To drive his vehicle as nearly as practical entirely within a single lane and not to move from such lane until he first ascertained that such movement could be made with safety. (6) Not to drive along the highway to the left of the double yellow lines painted on the pavement. Williams’ violations of the standards of safety set by these statutes “is to be regarded as prima facie evidence of negligence, but is subject to justification or excuse.” Klafta v. Smith, 17 Utah 2d 65, 68, 404 P.2d 659, 661 (1965). The government’s evidence falls far short of fairly or reasonably warranting a finding of justification or excuse. It is the judgment of this court that such negligence of Airman Williams was the direct and proximate cause of the death and injuries in these cases! Further, there is no evidence of contributory negligence; consequently the affirmative defense must fail. SCOPE OF EMPLOYMENT Airman First Class Williams, who had been in the Air Force over four years, was issued military orders which directed him to proceed on. permanent change of station travel status from one permanent duty station to another. Air Force Regulations provide members “shall be deemed to be in a travel status while performing travel away from their permanent duty station, upon public business, pursuant to competent travel orders.” * * * “Travel Status”, the Regulations say, “will commence with departure from permanent duty station,” and includes, “Permanent change of station: Travel from one permanent duty station to- another permanent duty station.” The unit and major air command from which- he was relieved by his orders was 4608th Support Squadron, Air Defense Command, Ent Air Force Base, Colorado. The new unit, major air command and duty station to which he was assigned was 337th Fighter Group, Air Defense Command, Portland International Airport, Oregon. Before departing Ent Air Force Base, Colorado, he was handed “PERMANENT CHANGE OF STATION ORDER-MILITARY,” “Special Order Number A-429,” which was issued by “Commander, Headquarters 4600th Air Base Wing, Air Defense Command, U. S. Air Force, Ent Air Force Base, Colorado, dated 5 April 1965.” The reassignment of Williams to Portland, Oregon was for the purpose of Air Force duty He was ordered to report to the commander at the new assignment not later than 1 August 1965. Williams requested delay en route, which was authorized, provided it “does not interfere with reporting on date specified and provided individual has sufficient accrued leave.” This is indicated by code in his orders. Williams’ travel orders authorized him to use his own private automobile. This, too, is indicated by code in his orders. By Air Force regulation, Williams, while traveling on permanent change of station travel status with authorization to use his own private car was entitled to an allowance of mileage at the rate of 6‡ per mile, for the official distance of 1,353 miles from Ent - in Colorado to Portland International Airport' in Oregon. Before Williams departed his base in Colorado he was advanced this mileage to Portland. Later on the overpayment for the distance from Green River, Utah, to Portland was deducted from his pay. On 24 August 1965 Williams at Portland, Oregon, received in cash mileage for his wife’s travel from Colorado to Green River, Utah. Furthermore, Williams’ travel' order authorizes remuneration for this movement of his personal belongings, furniture, household goods, etc. - Air Force Regulations authorize travel and transportation allowances to its members only while actually in a “travel status.” And, they can’t be in “travel status” by definition unless they are traveling on “public business.” Supra, Note 11. The date on which Williams was to be picked up on the rolls of the 337th Fighter Group (ADC) Portland International Airport, Oregon, was 7 July ’65. The travel orders included a direction to the Airman to report to the nearest active Air Force Installation as soon as possible “in the event of general war or if the CONUS is attacked.” Williams’ travel was deemed necessary for his military service. This appears by code “TDN” in his Permanent Change of Station Travel Order, Item 45. The Air Force Manual of Abbreviations of the Department of the Air Force defines TDN: “Travel as directed is necessary in the military service.” Less than 24 hours after Williams departed Ent Air Force Base, Colorado, the accident occurred. Williams was asked whether that time was charged against his leave record, nr against the four days authorized travel : “Q. .You know in fact that was not charged against your leave; isn’t that right ? “A. It was not.” This is a matter of record which the government could, and should, have produced. In the absence of the record the court received secondary evidence. There are several other records the government did not produce which would have been substantial aids in the search for the truth of this matter. Williams did not report to the commander at the new assignment as ordered, i. e. “not later than 1 August 1965.” One result of Williams’ negligent driving is that he didn’t arrive on time at Portland. It was in the interest of the Air Force that he drive carefully so he would do so. And to that end, at all times during the trip, Williams was accountable to the Air Force for all of his actions, including the driving of his private automobile. Can it seriously be claimed that the Air Force did not have the right and the power to control him in those activities affecting his safety and punctual reporting for duty? He was admitted to the hospital in Portland 18 August 1965. He did not return to duty until some time later than that. Williams was subject to the Uniform Code of Military Justice, 10 U.S.C.A. Articles 111 and 134. Article 111 provides: A serviceman “who operates any vehicle * * * in a reckless * * * manner, shall be punished as a court-martial may direct.” Under the general provision of Article 134, “neglects” prejudicial to the good order and discipline of the military forces may be punished as a court-martial offense. The United States Court of Military Appeals in Greenfeather v. United States, 13 USCMA 151, 32 C.M.R. 151, ruled that simple negligence is sufficient. The absence of due care, or an act of omission showing a lack of care for the safety of others that a reasonably prudent man would exercise under the circumstances is sufficient to sustain a conviction. It would appear, therefore, that Court of Military Appeals cases would sustain a conviction under the Uniform Code of Military Justice in the case of an airman operating a vehicle negligently resulting in the death of another. The Greenfeather case involved a fact situation comparable to that being considered in the instant cases. Williams testified he intended to go by way the most direct route possible to Portland, Oregon. He did not intend to go anywhere else until he got to Portland. His in-laws lived at Rockaway, Oregon, which is “just a matter of a couple of hours due west” of Portland, “in- a little bit” from the coast. He had to go through Portland to get to Rockaway. He was going to leave his wife and baby with his wife’s folks, report to his new station, and get the housing arrangements set up. The only place he and his wife wished to visit was Rockaway, nearly 800 miles down the road from the accident, and beyond his new permanent duty station to which the Air Force had assigned him. At the time of the accident, Williams was in fact on the most direct route from Colorado to Portland, Oregon — the route over which the “official highway distance”, for mileage allowance purposes had been computed. He had not deviated from that route in the slightest, and didn’t intend to. While “delay en route chargeable as ordinary leave” was authorized in his travel order, he had taken no leave and didn’t intend to take any until he reached his wife’s folks home at Rockaway. He had planned no side trips. Williams further testified he was travelling under orders at the request of the United States. He was ordered to remove himself from Ent Air Force Base, Colorado, to the International Airport, Portland, Oregon. He didn’t have any choice in the matter; he didn’t have “any say about it”. In a two-sentence per curiam decision, in 1955, the Supreme Court of the United States held that the state law of respondeat superior controlled the determination whether a soldier in the United States Army was “acting within the scope of his employment.” Many cases were decided in the federal courts before Williams v. United States, supra, and a considerable number since. Those which have applied “federal law”, or the law of different states, or which involved different factual situations, or are conflicting have not been useful in the consideration of these cases. The court in O’Brien v. United States, 236 F.Supp. 792, pp. 794-795 (District of Maine, 1964) summarizes them, as well, in our judgment, as it can be done: “Both parties attempt to draw support from cases decided by federal courts throughout the country arising from accidents involving servicemen travelling by privately owned automobile between permanent duty stations. These cases, however, are of little help, both because of the different factual situations presented and because they have applied the law of other states or, in some instances before Williams v. United States, supra, federal law. Furthermore, they are conflicting. Generally, these cases have imposed liability upon the Government when the serviceman at the time of the accident was in travel status proceeding directly from his former to his new duty station. Cooner v. United States, 276 F.2d 220 (4th Cir. 1960); Hinson v. United States, 257 F.2d 178 (5th Cir. 1958); United States v. Mraz, 255 F.2d 115 (10th Cir. 1958); cf. Sample v. United States, 178 F.Supp. 259 (D.C.Minn.1959); Satterwhite v. Bocelato, 130 F.Supp. 825 (E.D.N.C. 1955) ; Purcell v. United States, 130 F.Supp. 882 (N.D.Cal.1955); Whittenberg v. United States, 148 F.Supp. 353 (S.D.Tex.1956) (civilian employee). Under similar conditions, however, other courts have reached the opposite conclusion. Chapin v. United States, 258 F.2d 465 (9th Cir. 1958), cert. denied, 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed.2d 627 (1959); United States v. Sharpe, 189 F.2d 239 (4th Cir. 1951); cf. Jozwiak v. United States, 123 F.Supp. 65 (S.D.Ohio 1954) (civilian employee). On the other hand, in most cases the courts have refused to hold the Government liable when the accident occurred while the serviceman was on leave or delay en route status. United States v. Eleazer, 177 F.2d 914 (4th Cir. 1949), cert. denied, 339 U.S. 903, 70 S.Ct. 517, 94 L.Ed. 1333 (1950); Noe v. United States, 136 F.Supp. 639 (E.D.Tenn. 1956) ; cf. Kunkler v. United States, 295 F.2d 370 (5th Cir. 1961) (deviation). To the contrary, however, is United States v. Kennedy, 230 F.2d 674 (9th Cir. 1956); cf. Marquardt v. United States, 115 F.Supp. 160 (S.D.Cal.1953) (civilian employee). Because of the different facts involved and the differences in the laws of the several states in which they have arisen, no good purpose will be served by further discussion of these federal cases. This case must be decided upon its own facts and is governed by Maine law.” Under Williams v. United States, supra, we are obliged to apply the law of the State of Utah, which was the place of the accident; although cases involving the responsibility of the United States for damage caused in this type of situation can never arise in the state courts. This is due to the singular relationship of the United States to its military personnel, and, to the provision of the Tort Claims Act conferring exclusive jurisdiction upon the federal courts. It is, of course, obvious that state court respondeat superior decisions in areas of the law other than those involving the military do not produce precedents which are apposite. Consequently the federal courts must search in the reports of decisions from the state courts for cases which are as, nearly comparable as may be. None, ever, will be directly in point. The process is one of trying to match up sets of dissimilar facts, and applying to the facts of the case at hand the principles announced by the high court of the place where the accident occurred. The principles of the law of agency respecting the central issue in these cases, have been elaborated clearly enough by the Supreme Court of Utah, in fairly comparable civilian cases, that one can reasonably anticipate that when the court has an opportunity to apply them to factual situations more nearly resembling those in the instant cases it will do so. The unanimous decision of the Utah Supreme Court which, factually, comes closest to the cases at bar, and which may be as close as any civilian case we will ever be able'to find, is Chatelain v. Thackeray et al., 98 Utah 525, 100 P.2d 191 (1940). The Supreme Court affirmed a judgment entered upon the verdict of the jury, and held that the insurance agent was not an. independent contractor, that he “was engaged partly to effect contractual relations” between the company and third persons, and “partly to do physical errands for it — as when he delivered policies, made collections or turned over money” to the company. “The purpose of his trip to Salt Lake City on the day of the accident comprised all of these duties, as well as the duty of soliciting sales of insurance.” The court deemed it unnecessary to discuss the distinction between an agent and a servant. “Where the superior has right of control over his subordinate as to the means used by the latter in the conduct of the purposes of the relationship, that distinction becomes merely academic, since in either event the rule of respondeat superior applies.” (98 Utah at pages 548-549, 100 P.2d at page 201). The Supreme Court concluded since “the injuries to plaintiff resulted from the negligence of. the agent, Thackeray, while he was about appellant’s business, and within the scope of his employment, appellant is liable.” The court adopted the principles: (1) that it is the “right” to control, not the exercise of it that is essential; (2) that, “in the case of the use of an instrumentality, such as an automobile, by the agent or servant, there can usually be no right of control on the part of the principal or master unless the use of such instrumentality is with either the express or implied assent of the latter” (98 Utah at page 545,100 P.2d at page 200); (3) that “actual control over the manner or means of driving the automobile at the very moment of the accident is not necessary; (4) that the sole purpose of the trip need not be the furtherance of the master’s business, but the travel may be in part on the business of the servant (98 Utah at pages 536 and 547, 100 P.2d 191); that neither the fact that Thackeray was paid solely upon a commission basis, nor that he used his own automobile and personally paid the expenses of its operation, is controlling in determining when the relationship of employee exists. Thackeray was a life insurance agent who travelled in his own car, and who was “authorized and, in effect, directed,” to use the car in pursuit of the cornpany’s business. He paid his own car and travel expenses. And, he was at liberty to go anywhere, at any time, and by what means he pleased, to sell insurance. He was a full time employee under a provision of the written contract that the agent “shall devote his entire time and energies to the business of the company, carry out its instructions, promote its success and welfare, and shall do no business for any other life insurance company.” The contract further provided that “the agent shall be governed by the written and printed instructions and rules which he may from time to time receive from the company.” The company retained the power to discharge him on 30 days notice. The agent’s duties were to sell insurance in the states of Utah and Idaho, to deliver policies, collect premiums, and to perform other duties as might from time to timé be required by the company. As compensation he was paid commissions. The company main branch office for, Utah was in Salt Lake City; the agent’s office and district headquarters were in Ogden; his home was in Morgan, 22 miles beyond Ogden in Weber Canyon. On the day of the accident Thackeray drove from Ogden to Salt Lake City, accompanied by Wood, another agent of the company. It was on the return to Ogden from such trip that the accident occurred. There were three purposes for the trip: first, to confer with the main branch manager at Salt Lake City about proposal letters concerning salary savings insurance for employees of Ogden City and another employer in Ogden; second, to turn in some collections and some new applications for insurance; and, third, to make some collections and solicit prospects in Salt Lake. On the return trip to Ogden, the agent stopped at two towns, saw a prospect, and made an unsuccessful attempt to collect a premium. After this, the agent proceeded directly toward Ogden and the point where the accident occurred. While in Salt Lake City, Thackeray, . Wood and the main branch manager prepared letters outlining a plan to be submitted to the employees of Ogden City and the other Ogden employer. Thackeray and Wood had been working on such a plan in Ogden before the trip to Salt Lake. Thackeray intended to work on the company business that evening upon his return to Ogden. See 98 Utah 525 at page 547, 100 P.2d 191. Thackeray turned in at Salt Lake some money collected and applications obtained, which he had brought from Ogden; he made 3 or 4 calls on persons in Salt Lake soliciting prospects or collecting premiums; on the return trip to Ogden, he made two stops to solicit a prospect and to make a collection. He was entitled to have some of the money received on all of this business returned to him as commissions. Spelling out a comparison of the two cases may throw some light on the significant similarity. Both Thackeray and Williams drove their own cars, and were authorized by their employers to use them in pursuit of the employer’s business on the trip in question. Thackeray paid his own expense of the trip; the United States paid Williams’. Both had the option to choose mode of travel, by car or by whatever other means desired. (98 Utah at page 534, 100 P.2d 191). The government was indifferent to the mode of travel used. On the trip, both were acting in furtherance of the employer’s business, Thackeray travelling from the main office in Salt Lake to the company district office in Ogden, where he intended to work on company business that evening (98 Utah at page 547, 100 P.2d 191). Williams was carrying out his superior’s orders and proceeding from one permanent duty station to another. His transfer to Portland was for the purpose of Air Force duty. Williams intended also to go through Portland and on beyond to visit his wife’s folks. Thackeray intended to finish some work on company business in the Ogden office, and then go home to Morgan. On the trip from Ogden to Salt Lake and back to Ogden again, Thackeray was furthering the business of his employer and also his own. He was using his automobile “in the vital pursuit of not only his own, but appellant’s business.” (98 Utah at page 547, 100 P.2d at page 201.) Thackeray was entitled to commissions if prospective purchasers in Ogden accepted the proposals worked out in the Salt Lake office. Both Thackeray and Williams were on a direct route to their destination; neither had deviated in the slightest. Both were full time employees. Williams’ travel was necessary in the military service; Thackeray’s travel to Ogden was essential to the evening work in the Ogden office. Both employers had the right of control, the Air Force over Williams; the company over Thackeray. At all times during the trip Williams was accountable to his superior officers for all of his actions, including the driving of his private automobile. He was subject to discipline for driving recklessly. The company retained the power to discharge Thackeray on 30 days notice; to issue rules and instructions to him by which he was to be governed, and he agreed to carry out the instructions, “promote the company’s success and welfare”, and to perform other duties as might from time to time be required by the company. It is obvious, of course, that there are differences between the two cases but they do not strengthen the government’s position. First, the government paid Williams’ transportation allowance covering the movement of his household goods and furniture;, and, also paid travel allowances of 6‡ per mile for Williams’ travel and 6‡ per mile for that of his wife. Part, at least, of this was paid on August 24, 1965, at Portland, Oregon, long after the accident. This clearly appears to be a ratification by the Air Force of the acts of Williams. It was done with full knowledge. Second, the relationship of the subordinate Williams to his military superiors carried more authority over him than the insurance company had over Thackeray; and, this doubtless causes subordinates in the military to sense more keenly their responsibility, and must quicken the desire and the will to obedience. Third, the Air Force gave Williams a direct and formal order to “proceed” to Portland. He was doing just that. But he did a bad job of it. The Air Force business was being negligently performed. Professor Mechem explains the point by saying, “ * * * considering the nature of the job, the smoking cannot be thought of independently but must be thought of rather as a (bad) way of doing the job. If a truck driver uses both hands to light his pipe and loses control of the truck, we do not exonerate the master by saying that smoking is not within the scope of his employment; we say that driving is, and that this was a bad way of driving. On the other hand if the driver throws away the match and ignites the neighboring field, presumably the master is not liable; that is not a way of driving a truck at all. “ * * * In the cases under discussion the servant is most commonly one employed to handle gasoline or some other highly inflammable substance. When his cigarette ignites the gasoline, we do not say it was a poor way to smoke —but smoking is no part of the employment; we say it was a poor way to pour gasoline,” It is significant and emphasizes the point of Chatelain v. Thackeray, supra, that the Utah court (98 Utah at page 544, 100 P.2d 191) rejected the Missouri case of Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R. 1381. The government, in the cases at bar, relies heavily upon Bissell v. McElligott, 248 F.Supp. 219 (D.C. 1965); 369 F.2d 115 (8 Cir. 1966). That case was decided by both the district court and court of appeals upon the authority of Vert v. Metropolitan Life Ins. Co., and the Missouri law, which was stated to be: that an employer cannot be held liable unless “the right of the employer to control the physical acts or movements of the employee at the very moment of the occurrence”, is established as a necessary element of plaintiff’s cause of action. The Fourth Circuit in Cooner v. United States also rejects Vert v. Metropolitan Life Ins. Co., and the Missouri view which requires a showing that at the time of the accident, the master had the right to control the details and manner of the servant’s driving. And, instead, the view of Chief Justice Cardozo, while on the New York Court of Appeals is adopted in Cooner v. United States, supra, and in Utah. That view is expressed in Mark’s Dependents v. Gray, 1929, 251 N.Y. 90, 167 N.E. 181 : “ * * * Unquestionably injury through collision is a risk of travel on a highway. What concerns us here is whether the risks of travel are also risks of the employment. In that view, the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils. * * * “* * * The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Clawson v. Pierce-Arrow Motor Car Co., 231 N.Y. 273, 131 N.E. 914. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.” (Marks’ Dependents v. Gray, supra, 167 N.E. at pages 182-183. Emphasis supplied.) The Missouri anomaly also is rejected in the Tenth Circuit by Chief Judge Murrah in United States v. Mraz, 255 F.2d 115 (1958), and by Chief Judge Arraj of the Colorado District, in Court-right v. Pittman, 264 F.Supp. 114 (1967). Four years before Chatelain v. Thackeray, the Utah Supreme Court decided the leading case of Fox v. Lavender, 89 Utah 115, 56 P.2d 1049, 109 A.L.R. 105 (1936). The case has had a profound influence upon the law of agency in Utah. It is cited here for the illuminating opinion of Mr. Justice Wolfe, in which he said: “The test of whether one is the agent of the other depends upon the right of control of one over the other. The same principles of agency apply to the running of an automobile as apply to any other field of action. * * * “Control as applied to the operation of an automobile may be broken down into its elements — the when, the where, and the how. Complete control means that the principal could dictate when the car was to be used, the destination or where it should go, the route it should take, and how it should be driven, whether slow or fast, behind or around traffic, inside or outside the lane of traffic, etc. It is not necessary that the principal should be physically able to so direct or control, but only that he has the right to. Such legal right of control arises out of the relationship of master and servant, where the servant is the operator of the car. In contemplation of law, an individual employing a chauffeur or a corporation employing a hundred truck drivers has the right of control over the servants driving their cars, although it would be, in fact, an impossibility to exercise it. Each of such servants is in contemplation of law the agent or instrumentality through which the master acts, and in contemplation of law each is acting in place of the master or principal. Improvement in means of communication between a driver and an absent master may in time make possible actual driving by remote control. In such case the master will be actually doing what in law he already has the right to do." * * * “In this analysis we are only concerned with the question of who had the right of control of the car while it was on the journey.” * * * “The purpose of the trip is material only in so far as it throws light upon the question of agency or the question of who has the right of control during the trip. * * * “Therefore, the ultimate object of what is to be done at the end of the journey is not controlling, but simply a circumstance to throw light upon the question of whether there was the right of control during the journey. The inquiry must still be directed as to whether an agency existed in the operation of the car, or the more fundamental question of whether there was the right of control on the part of another during the time the car was operated.” Although the point was necessary to the decision in Chatelain v. Thackeray, and the court referred to it, the case which establishes the “dual purpose” doctrine in Utah law is Carter v. Bessey et al., 97 Utah 427, 93 P.2d 490 (1939) where an employee of the Jewel Tea Company took orders, made deliveries of merchandise and collections. He chose his own routes in the area assigned to him but was instructed not to drive the company truck for personal use. He, at night, after making his last call, purchased a Christmas tree for his personal use, placed it on the running board and was proceeding at the time of accident along the most direct route to employer’s garage situated across the street from employee’s home. When driving around the corner and into the street to his home and the company garage, he ran into the plaintiff. At that time he was on his master’s business to put the car, containing some of the company’s undelivered goods, in the garage for the night, and on his own business to deliver the Christmas tree to his home across the street. The Supreme Court said: “Appellant relies principally upon the case of Cannon v. Goodyear Tire & Rubber Co., 60 Utah 346, 208 P. 519 (1922), but the facts in that case are widely different from those in the case at bar. There the driver worked definite hours, and the accident occurred several hours after he had ceased his employment for the master and while he was using the truck upon business wholly and exclusively his own. Though he was driving the company’s truck he was completely dissevered from the master’s control or service. In the case before us, Bessey had not completed his day’s work for the master. He was still about his master’s business though also incidentally attending to some purposes of his own. That such dual activity does not ipso facto discharge the master from liability is settled by the overwhelming weight of authority. A slight deviation from orders or attending incidentally to other business than the master’s, but which does not dissever the servant from the master’s business does not relieve the master from liability for the servant’s negligence. If the servant is about the master’s business even though also attending to private affairs, he is within the scope of his employment and the master is liable. But when the servant, for purposes of his own or for purposes other than the master’s business, is engaged in activity which has no relation to the master’s business, to his employment, he has for such time departed from the scope of his employment and the master is not liable for his negligence. “ * * * We entertain no doubt that this question was properly submitted to the jury, and its findings in that regard should not be disturbed.” In the excellent case note in 45 Minnesota Law Review 275, at 277, the author says “ * * * if the right to control present in the military situation were found in a civilian situation, the existence of the master-servant relationship would be clear.” The insurance company’s right of control in Chatelain v. Thackeray, supra, and generally in insurance salesmen cases, comes pretty close. They “are full time employees, most emphatically doing the business of their employer * * * and functioning under constant exhortation and direction as to the manner at least in which they negotiate. Indeed, when one reads in some of the eases of the daily routine of the insurance salesman, beginning with a pep meeting at eight a. m. and terminating with another one at six p. m., with statements of sales made, rewards for those who have been successful and reprimand for those who haven’t, one gets the impression that it is not adequate to call these salesmen servants; they are more like slaves.” The government’s contentions were, first that the Air Force had no right to control the airman’s driving because he had the election to travel any way he might choose, the specific means of travel being a matter of indifference to the service; and second, he was using his own car. The statutory and employment arrangement in case of a member of the armed forces is such that the Air Force had the right, if it desired to exercise it, to tell the airman how he should travel. Cooner v. United States, 4 Cir., 276 F.2d 220, 234. 45 Minnesota Law Review 278, 278, Note 18. The regulations do not preclude the government from controlling military personnel while travelling; quite the contrary, as we have seen, supra. Third, the government contends that driving a car was not one- of the airman’s customary duties. Periodic travel from one permanent duty station to another permanent duty station is, however, a normal and customary part of military service, as witness the numerous cases which have arisen in this field. To refer to but a few, the following eases squarely hold against the government contentions : Cooner v. United States (4th Cir. 1964), supra; United States v. Mraz (10th Cir. 1958), supra; Hinson v. United States (5th Cir. 1958), supra; O’Brien v. United States (Dist. of Maine 1964), supra; Courtright v. Pittman and United States, (Dist. of Colo. 1967), supra. The fourth government contention is that Airman Williams “was ordered to go on a vacation for thirty-three days. He was never on the government’s business when (sic) he left the Ent- Air Force Base. At the time of the accident he had taken one day of leave. He was on leave at the time the accident occurred.” Even the young airman gave a better analysis than that (Deposition page 70): “Q. You stated you were not engaged in any duty of the Government at the time you were driving from Ent to Portland; that is not entirely correct, is it? “A. Well, I was still on active duty status; however at the time I was on vacation or leave status. I don’t know what bearing that would have.” The government cited the so-called “going to and coming from work” cases. The Fifth Circuit, in Hinson v. United States, supra, distinguishes these cases by asserting: “ * * * The battle lines here drawn on scope of employment separate the camps into the question in its simplest, most graphic form: Was Capt. Westeott ‘going to work’ or was he then already ‘at work’ in making his way to Texas? The total circumstances under Georgia law compel the latter view. “ * * * Thus it is controlling that at the time of this collision, Capt. Westeott was performing a specific duty which had been assigned him — to travel to Fort Sam Houston. In executing this order to proceed, he made use of his private automobile with the express authority of the Army. For this the Army bore the expenses which were ‘necessary in the military service.’ In so doing he was not going to work, he was then engaged in the performance of one of the very duties specifically assigned to him, receiving Army pay, subject to military discipline and not on leave. His only choice was the immaterial one of route and means of travel. “In this regard, the ‘going to work’ cases are distinguished * * * on the ground that the employee has not yet commenced his duties while en route to work. That is, he is not yet doing that which he has been ordered to do.” Hinson v. United States, supra, is annotated in 45 Minn.L.R. 275, 277. Contrary to the government’s position, the evidence is overwhelming that Williams was engaged primarily in the furtherance of the business of the Air Force; was acting within the scope of his employment; and was carrying out military orders at the time the accident occurred. Some of the many factors in this case which demonstrate the right of Williams’ superiors in the Air Force to control his driving activities are: 1— He was issued military orders to “proceed” on permanent change of station travel status from one permanent duty station to another. (Travel Order, Item 1, “Individual WP on PCS.”). 2— The reassignment of Williams to Portland, Oregon was for the purpose of Air Force duty. (Travel Order, Item 8.). 3— His travel order states that “travel as directed is necessary in the military service.” (Travel Order, Item 45 “TDN”.). 4— At all times during the trip Williams was accountable to his superior officers in the Air Force for all of his actions, including the driving of his private automobile. 5— By statute he was subject to discipline for driving any vehicle in a reckless manner. 6— The accident occurred less than 24 hours after he departed his permanent duty station in Colorado. 7— The time between departure and accident was not charged against his leave record. 8— He was specifically authorized to use his own private automobile. 9— He was reimbursed at a rate of per mile for using his personal car. 10— His personal belongings, furniture, household goods, etc., were moved for ■him by and at the expense of the government. 11— He was entitled to travel and transportation allowances only if he was in “travel status”, which requires that he be travelling on “public business”. 12— If the government is right in its contention here, the General Accounting Office must file a claim against him. 13— While “delay en route chargeable as ordinary leave” was authorized, he had taken no leave and didn’t intend to take any until he reached his wife’s folks’ home at Rockaway, Oregon. Moreover, he was entitled to a delay en route only if “individual has sufficient accrued leave.” There was no evidence that he had any accrued leave. 14— He had to go through Portland and beyond the permanent duty station to which he had been assigned to get to Rockaway. 15— The first time he intended to take any leave was at Rockaway, nearly 800 miles down the road from the accident. 16— Williams intended to go by way of the most direct route to Portland. 17— At the time of the accident, Williams was in fact on the most direct route. 18— He had not deviated from that route in the slightest and didn’t intend to. 19— Williams testified he was travelling under orders at the request of the United States. He didn’t have any “say about it.” LA RAISON D’ETRE The world’s work is done by agents, most of it by corporations which can act only through agents. “The present status of the corporation as. the dominant factor in modern business nearly furnishes an automatic justification of respondeat superior. The corporation could not exist without the law of principal and agent. A corporation can only act through agents; no one would deal with it if it were not bound by the acts of its agents. “ * * * The present writer has observed elsewhere that if there were no law of Agency it would be necessary to invent one. Large scale business would be impossible without it. Thus the rule of respondeat superior is congenial to and consistent with our industrial civilization. It may need no other justification.” A good deal has been written on the subject of the raison d’etre of respondeat superior. “The explanation or justification of master’s liability which undoubtedly finds the widest acceptance today is one that goes under the rather pretentious name of the Entrepeneur Theory. Every industry, it is suggested, takes a regular and more or less predictable annual toll, both in property and in flesh and blood. If, e. g., the records of the Shantytown & Southern Railroad were examined and subjected to a statistical computation, it could be predicted with considerable accuracy how many people would be killed and maimed in the coming year, how many cars wrecked, and the like. Restaurants doubtless have an accounting item named ‘breakage’; this is breakage, too, if on a bigger and more distressing scale. On whom should the replacement cost fall ? Unlike the restaurant, the railroad can get new victims without cost; to do so, however, leaves a tragic list of innocent and uncompensated victims. Why not treat it as a cost of the business, as the restaurant does? If the railroad pays, it will easily be able to spread the cost by raising its charges. The expense then ultimately rests, like other expenses of running a railroad, on that part of the public which needs, patronizes, and presumably profits by the existence of, a railroad. The cost, to each individual member of the railroad-interested public, is, per accident, insignificant; if left to lie on the victim of the particular accident it may be ruinous. “Thus in the light of the Entrepreneur Theory, respondeat superior achieves an allocation of the loss which is fair and reasonable; no better justification, it is thought, could be needed.” If, as Mechem says, “a corporation nearly furnishes an automatic justification” of respondeat superior, the United States government furnishes an a fortiori, fully automatic, peculiarly applicable one. The Tort Claims Act reflects a strong public policy, recognized by 'Congress, to protect the citizenry from torts committed by the public servants, to lift the risks that may be ruinous if left to lie upon the individual victim of the particular accident, to adopt respondeat superior as it is understood in the law of the states, and to achieve an allocation and apportionment of the loss among not a relatively small segment of the consuming public, but among the entire federal taxpaying public. We have come a long way since Holmes wrote in 1882: “I assume that commonsense is opposed to making one man pay for another man’s wrong * * *. I therefore assume that common sense is opposed to the fundamental theory of agency * * All that needs be said in summary is that this is the clearest of cases. The airman was given a direct order by his commander to travel from Colorado to Oregon. When he got into this accident he was doing just that, but in a shockingly reckless manner. “If a master choose to give orders to his servant, no one can fail to understand why he should be held liable for the consequences of their commission. Nor is the case in substance d