
    McCluggage et al., Appellees, v. United States, Appelllant.
    (No. 17638
    Decided April 5, 1968.)
    United States Court of Appeals, Sixth Circuit.
    
      Mr. John C. Eldridge, Mr. Barefoot Sanders, Mr. Morton Hollander, Mr. Harvey L. Zuckman and Mr. Robert M. Draper, for appellant.
    
      Mr. Robert P. Mone, Mr. Charles E. Shanklin, Messrs. George, Greek, King & McMahon and Mr. Raymond E. Daily, Jr., for appellees.
    Before Peck, McCree and Combs, Circuit Judges.
   McCree, Circuit Judge.

This is the government’s appeal from a judgment for plaintiffs in the aggregate sum of $247,682.59 in a federal tort claims action for injury to plaintiff Sibyl McCluggage resulting from the negligent act of an enlisted member of tbe United States Air Force. Tbe substantial amount of tbe judgment is amply supported by tbe evidence and no appeal bas been taken from tbis determination or from tbe finding that tbe serviceman was negligent. Tbe only question presented by tbis appeal is that of tbe liability of appellant.

Tbe parties concede and we agree that tbe law of Obio is applicable in determining wbetber tbe serviceman, con-cededly an employee of tbe government, was acting witbin tbe scope of bis employment at tbe time tbe injuries were inflicted. 28 U. S. Code Section 1346(b); Williams v. United States (1955), 350 U. S. 857, 76 S. Ct. 100, 100 L. Ed. 761; Christian v. United States (6tb Cir. 1950), 184 F. 2d 523.

Tbe District Judge overruled tbe government’s motion for summary judgment, and at tbe conclusion of tbe trial, found that tbe airman’s negligence occurred while be was acting in the scope of bis employment.

Tbe pertinent facts which are not in dispute are as follows: At tbe time of tbe accident, Airman Kyle was traveling under Air Force orders directing him to proceed from bis permanent military station at Paris, Kentucky, to Fort George G. Meade, Maryland, for temporary duty as a radar bomb-scoring controller on or about January 2, 1962, and to report no later than 8 a. m. on J anuary 3, 1962. His commanding officer authorized bis early departure on December 29 because of weather conditions, “Thus assuring arrival at destination as per orders.” At tbe completion of bis 30-day tour of duty at Ft. Meade be was to “return to proper station” and bis orders did not authorize any leave or delay en route. He was authorized to use bis privately owned automobile and he decided to do so. His orders stated that tbe “travel directed is necessary in tbe military service” and bis commanding officer gave him a safety briefing before his departure. He was reimbursed at tbe rate of five cents per mile for using his own car and be transported the clothing which he would use while on temporary duty. His travel time was considered by tbe Air Force to be active duty service time and he was drawing bis full pay while traveling to Fort Meade. Because of potentially dangerous weather conditions, be decided to avoid the most direct route through the mountains since variations in his itinerary were specifically authorized, and he chose instead to employ the Ohio Turnpike which placed him on U. S. Highway 23 where he collided with the automobile driven by plaintiff Sibyl McCluggage.

The Supreme Court of Ohio has held that the expression “scope of the employment” cannot be accurately defined because it is a question of fact to be determined according to the peculiar facts of each case and that each case is sui generis. Tarlecka v. Morgan (1932), 125 Ohio St. 319. In Amstutz, Admr., v. Prudential Ins. Co. (1940), 136 Ohio St. 404, where an insurance agent became involved in an accident on his return' trip from a plant outside his “debit” for the purpose of making a required collection of a premium, it was held that the trial court was correct in not ruling as a matter of law that the employee was outside the scope of his employment and a verdict for the plaintiff was affirmed. See also Miller v. Metropolitan Life Ins. Co. (1938), 134 Ohio St. 289. Jozwiak v. United States (S. D. Ohio 1954), 123 F. Supp. 65, a federal tort claims action arising in Ohio, although decided for the government, recognized that scope of employment is usually a question of fact.

The three Ohio cases cited by appellant where it was held as a matter of law that the employee was acting outside the scope of his employment can easily be distinguished from this case. In Miller v. Western Union Telegraph Co. (1939), 63 Ohio App. 125, a messenger boy employed by a telegraph company and given express authority to deliver messages on a bicycle, unknown to his employer delivered a message by means of an automobile for the first time and negligently injured a third party. In the instant case there was express permission for the airman to use his privately-owned automobile.

In Senn v. Lackner (1952), 157 Ohio St. 206, it was held that the doctrine of respondeat superior did not apply when the employee, a half hour before he was to begin his day’s work, was driving from his home to his place of employment in a car owned by his employer and loaned to the employee for the sole benefit of the employee. In the instant appeal, Airman Kyle was performing a service for his employer in traveling from one duty station to another and was considered to be on duty at the time.

Appellant’s principal reliance is upon Boch v. New York Life Insurance Co. (1964), 175 Ohio St. 458, another case in which it was held that a master is not liable for the negligence of his servant while driving to work at a fixed place of employment, where such driving involves no special benefit to the master other than the making of the servant’s services available to the master at the place where they are needed. In that case the following test for vicarious liability was set forth in the syllabus:

1. An employer is liable for the negligence of his employee in operating the employee’s own automobile only where it is established by a preponderance of the evidence

(1) that the employer had expressly or impliedly authorized the employee to use his own automobile in doing the work he was employed to do,

(2) that the employee was at the time of such negligence doing work that he was employed to do, and

(3) that the employee was subject to the direction and control of the employer in the operation of the employee’s automobile while using it in doing the work he was employed to do.

In the instant appeal, the airman was expressly authorized to use the automobile in doing work he was employed to do, i. e., proceed to a post other than his fixed place of employment to perform duties as a radar-bomb-scoring controller, and was subject to the direction and control of his employer in the operation of the employee’s automobile. The Uniform Code of Military Justice, Article 111 provides,

Any person subject to this chapter who operates any vehicle while drunk, or in a reckless or wanton manner, shall be punished as a court-marital may direct. 10 U. S. Code, Section 911.

The opinion in Boch emphasized that an employer usually regards as “none of his business” the means employed or the route taken by its employee in getting to work. It recognized that some special arrangement such as a requirement that the employee use a certain mode of transportation or possibly a provision for payment of transportation expenses might permit a finding that an employee was subject to the direction or control of his employer on the way to work.

It follows that a question of fact on the issue of scope of employment was presented and we hold that on the evidence the District Judge’s finding was not clearly erroneous. F. E. Civ. P. Eule 52(a).

Judgment affirmed.  