The opinion of the court was delivered by: NOONAN
This is a motion for summary judgment. The plaintiffs instituted this action against the Government under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., to recover damages for personal injuries sustained, as a result of the alleged negligence of Ensign Richard Hull of the United States Navy.
For the purpose of this motion, made by the Government for summary judgment dismissing the complaint, the parties have stipulated the following facts:
1. In January 1947, Richard Hull was an Ensign in the United States Navy, and was assigned to duty as Security Officer at Special Devices Center, Office of Naval Research, Sands Point, Port Washington, Long Island, New York.
2. Pursuant to the standing orders of this Naval Center relating to tours of duty, Ensign Richard Hull was on a weekend leave, under no particular orders, which is commonly referred to as an off duty status, from 4:30 p.m. on Friday, January 3, 1947, until 8:00 a.m. on Monday, January 6, 1947. Accordingly, Ensign Richard Hull was at liberty to go and do as he pleased during this period.
3. During this weekend leave, Ensign Richard Hull went to visit his wife in Philadelphia, Pennsylvania.
4. On Sunday afternoon, January 5, 1947, at which time it was snowing, Ensign Richard Hull left his wife in Philadelphia to return to Sands Point, Long Island, weather permitting.
5. Ensign Richard Hull, when at Sands Point, Long Island, resided at the Bachelor Officers' Quarters, which quarters were outside the grounds of the Sands Point Naval Station.
6. At about 7 p.m. on Sunday, January 5, 1947, while proceeding, alone, in his own private automobile, en route from Philadelphia to New York, Ensign Richard Hull became involved in an accident which forms the basis of this action. A collision occurred between Ensign Hull's automobile and the automobile operated by the plaintiff, William Bach, in which latter automobile Kitty Bach and Albert H. Bach were passengers. This collision occurred on a public highway known as Route 25, in the vicinity of Cranberry, New Jersey.
The sole issue before the court on this motion is whether this action is maintainable against the Government under the provisions of the Federal Tort Claims Act.
The statute applicable, 28 U.S.C.A. § 931(a), now § 1346(b), provides in part: "Subject to the provisions of this chapter, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, * * * shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, * * * on account of damage to or loss of property or on account of 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 for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims, to the same claimants, in the same manner, and to the same extent, as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages * * *." 28 U.S.C.A. § 931(a). (Italics supplied.)
28 U.S.C.A. § 941(c), now § 2671, provides in part: " '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."
Thus, since the incident which gave rise to this claim arose in New Jersey, we must look to the law of that state to determine the liability of a master-employer for the negligence of a servant-employee. In Blackman v. Atlantic City & S.R. Coal Co., 126 N.J.L. 458, 19 A.2d 807, it was held that if the act of the employee which resulted in injury to a third person was an act done within the scope of his employment and for the benefit of the employer, the latter must answer for the harm. Previous judicial constructions of the Federal Tort Claims Act in cases involving service personnel have evolved a similar principle.
In United States v. Eleazer, 4 Cir., 177 F.2d 914, a Marine officer was transferred from a base in North Carolina to one in Texas. He was granted a 15 day delay en route. Permission was given to travel in his own car for which he would be reimbursed at a definite mileage rate. After leaving the base in North Carolina, his automobile collided with another. Suit was brought under this act against the United States. The Court of Appeals, 177 F.2d at page 916, said: "When he chose to drive his own car, instead of availing himself of commercial transportation, he was acting in furtherance of his own purposes, not those of the government; and his action in driving the car cannot reasonably be said to have been action taken within the scope of his employment or office."
In Rutherford v. United States, 6 Cir., 73 F.Supp. 867, affirmed 168 F.2d 70, a naval petty officer was assigned to recruiting duty. He participated in a radio program designed to aid the Navy Recruiting program. Upon leaving the program, he started for his home in his own automobile. En route, he became involved in an automobile accident. The court, in granting summary ...