Before SWAN, CLARK and MEDINA, Circuit Judges.
In the early hours of the morning of January 6, 1951 plaintiff was seriously injured when a government-owned automobile operated by Andrew Cunningham, an investigator assigned to the Alcohol and Tobacco Tax Unit of the Internal Revenue Service, left the highway, ran up on the sidewalk and struck a wooden telephone pole. Cunningham was pronounced dead on arrival at a hospital. The accident happened as he was driving plaintiff to her home after an evening spent visiting a number of bars and drinking beer. The trial judge found that the accident was caused by Cunningham's negligence, that he was intoxicated, and that plaintiff was guilty of contributory negligence and assumed the risk of driving with him "in his inebriated condition." The complaint was dismissed and plaintiff has appealed.
We do not find it necessary to consider the question of contributory negligence or assumption of risk. The principal contentions advanced by appellant are:
(1) That the trial judge erroneously applied the New York law; and
(2) That, in any event, any finding of substantial evidence to rebut the presumption arising out of Section 59 of the New York Vehicle and Traffic Law must rest on the testimony of the witness Walter Carroll, and that his testimony should not have been received because the government did not produce him as a witness in response to the demand served in connection with the taking of depositions before trial.
Cunningham and Theodore C. Daners, another agent of the Alcohol and Tobacco Tax Unit, were sent to participate in the raid of a still in Liberty, New York. They returned on January 5, 1951, and reported to their supervisor, Walter Carroll, at the Manhattan office of the Unit about 2:00 P.M., bringing the baggage they had used on the trip to Liberty, which was heavy and bulky. This was a Friday. They received their pay checks and, according to the finding of the trial judge, based on Carroll's testimony, Carroll granted Cunningham's request to borrow the government-owned automobile, later involved in the accident, for the sole purpose of taking his baggage to his home, about a 25-30 minute drive from the government garage. "This permission was granted upon the explicit and specified stipulation * * * that the car be returned to the government garage by 6:00 P.M. on January 5, 1951, immediately after depositing the luggage at Cunningham's home." (Finding No. 10.)
Instead of going home, Cunningham proceeded to visit a few bars and he was at Deviney's Bar in Astoria when he was joined by appellant and some other friends at about 6:30 P.M. The rest of the evening was spent going from one bar and grill to another, drinking and "socializing," until Cunningham and appellant finally left the Canary Cage Bar and Grill in Corona shortly before the accident.
It is suggested that perhaps Cunningham was for at least part of the time engaged on official government business. But the testimony of the various bartenders and that of other witnesses concerning the activities of appellant and Cunningham demonstrates beyond shadow of doubt that he was during the entire evening bent on his own pleasure and recreation and engaged on no government business whatever. Moreover, Carroll testified and the trial judge found as a fact that Cunningham was employed as an agent in the Enforcement Division of the Unit, in contrast to the Permissive Division "which deals with bar and grill violations." He was off duty until the following Monday morning, and under the applicable regulations, would not have been permitted in a bar and grill without the permission of a superior and unless accompanied by a member of the Permissive Division.
The relevant statutes, 28 U.S.C. Sections 1346(b), 2671 and 2674, and Section 59 of the New York Vehicle and Traffic Law (now Section 388) are set forth in the margin.*fn1 As 28 U.S.C. Section 1346(b), generally referred to as the Tort Claims Act, is the source of authority to sue the United States in cases of this type, it is arguable that the District Court has no jurisdiction unless plaintiff proves that the government employee whose wrongful act or omission causes personal injury or loss of property, was at the time "acting within the scope of his office or employment." In other words, the statute was susceptible of the interpretation that the words "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" were applicable and the government was subject to suit only in cases where the government employee was "acting within the scope of his office or employment," any state law to the contrary notwithstanding. Indeed, this was the precise holding in Williams v. United States, D.C.N.D.Cal. 1952, 105 F.Supp. 208.*fn2 On appeal the Ninth Circuit affirmed, 1954, 215 F.2d 800, but the rationale of the decision was different. It was held that ordinarily the law of California would govern but that with reference to members of the military and naval forces the federal statute, 28 U.S.C. Section 2671, applied, as that section defined "acting within the scope of his office or employment" to mean "acting in line of duty," with reference to members of the military and naval forces. This ruling was reversed by the Supreme Court, 1955, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761, in the following brief Per Curiam:
"This case is controlled by the California doctrine of respondeat superior. The judgment is vacated and the case is remanded for consideration in the light of that governing principle."
This decision by the Supreme Court disposed of the contention that the phrase "acting within the scope of his office or employment" was to be interpreted as matter of federal law. And state law was held to be controlling despite the fact that the jurisdiction of the United States District Courts over the United States as a defendant was limited to cases where the claim for damages for injuries to person or property was based upon the alleged wrongful act or omission of a government employee "while acting within the scope of his office or employment." But nothing was said, nor in the context of the facts of Williams was there any occasion to say anything, on the subject of whether or not, if state law imposed liability beyond the scope of the doctrine of respondeat superior, the United States could be held liable under the Tort Claims Act.
The interpretation of the Tort Claims Act by the Supreme Court in Williams has been applied by us in Mandelbaum v. United States, 2 Cir., 1958, 251 F.2d 748, 750.
Appellant contends that the trial judge in the case now before us misapplied the New York law as elaborated in Mandelbaum; and she also contends that the words "or otherwise" in Section 59 of the New York Vehicle and Traffic Law require a holding of liability here wholly apart from the doctrine of respondeat superior, and that the trial judge ...