B-152852, NOV. 27, 1963

B-152852, NOV. 27, 1963

TO MR. GENE HATFIELD, CLAIM SUPERVISOR, FARM BUREAU INSURANCE:

YOUR LETTER OF OCTOBER 17, 1963, ADDRESSED TO MR. R. J. MADISON, CONCERNING YOUR CLAIM NO. 144380, HUBERT PAUL TUMLIN, POLICY NO. A248429, REQUESTED ADVICE AS TO WHETHER THE GENERAL ACCOUNTING OFFICE WOULD HANDLE THE CLAIM AND NEGOTIATE SETTLEMENT. THE CLAIM IN QUESTION AROSE FROM AN ACCIDENT IN WHICH MR. TUMLIN WAS INVOLVED ON SUNDAY OCTOBER 6, 1963, WHILE EN ROUTE TO AN ASSIGNMENT IN CONNECTION WITH HIS EMPLOYMENT WITH THE UNITED STATES GOVERNMENT.

THE RECORD BEFORE OUR OFFICE DISCLOSES THAT MR. TUMLIN WAS TRAVELLING ON AN ASSIGNMENT FOR THIS OFFICE UNDER TRAVEL ORDERS AUTHORIZING HIM TO TRAVEL BY HIS OWN PRIVATELY OWNED AUTOMOBILE FROM ATLANTA, GEORGIA, TO HIGH POINT, NORTH CAROLINA. THE ACCIDENT IN QUESTION OCCURRED WHILE MR. TUMLIN WAS TRAVELLING EAST ON ROUTES U.S. 19 AND 23, SEVEN MILES WEST OF ASHEVILLE, NORTH CAROLINA. IN HIS REPORT ON THE ACCIDENT, MR. TUMLIN STATES "THE ROUTE I WAS TRAVELING WAS AN INDIRECT ROUTE FROM ATLANTA, GA., TO HIGH POINT, N.C. I HAD STOPPED BY MY HOME IN RAINSVILLE, A., AND WAS TRAVELING THIS ROUTE FOR MY PERSONAL CONVENIENCE AND PLANNED TO CLAIM MILEAGE REIMBURSEMENT ON THE BASIS OF RAND MCNALLY MILEAGE FROM ATLANTA TO HIGH POINT.' IT READILY WILL BE NOTED FROM A MAP THAT THE ROUTE ACTUALLY BEING TRAVELLED BY MR. TUMLIN AT THE TIME OF THE ACCIDENT CONSTITUTED AN EXTENSIVE DEVIATION FROM THE DIRECT ROUTE FROM ATLANTA TO HIGH POINT WHICH HE WAS AUTHORIZED TO TRAVEL.

THE ONLY STATUTORY AUTHORITY UNDER WHICH LIABILITY FOR THIS ACCIDENT CAN BE ASSUMED BY THE FEDERAL GOVERNMENT IS THE FEDERAL TORT CLAIMS ACT, AS AMENDED, 28 U.S.C. 1346 (B), 28 U.S.C. 2671-2680. THIS ACT SUBJECTS THE UNITED STATES TO CLAIMS FOR MONEY DAMAGES "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.'

THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF WILLIAMS V. UNITED STATES, 350 U.S. 857, STATED THAT THE RESPONDEAT SUPERIOR DOCTRINE OF THE PLACE OF THE ACCIDENT APPLIES IN DETERMINING WHETHER THE GOVERNMENT EMPLOYEE WAS "ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT" FOR PURPOSES OF ASCERTAINING GOVERNMENT LIABILITY UNDER THE FEDERAL TORT CLAIMS ACT. SINCE THE ACCIDENT OCCURRED IN NORTH CAROLINA, THE LAW OF THAT STATE IS APPLICABLE HERE.

IT IS WELL-SETTLED IN NORTH CAROLINA THAT AN EMPLOYER IS RESPONSIBLE FOR THE TORTIOUS ACTS OF HIS EMPLOYEE ONLY WHEN THE EMPLOYEE COMMITS THE TORTIOUS ACT WHILE HE IS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. SEE PARRISH V. BOYSELL MFG. CO., 211 N.C. 7, 188 S.E. 817; FERGUSON V. REX SPINNING CO., 196 N.C. 614, 146 S.E. 597; BRYANT V. SAMPSON LUMBER CO., 174 N.C. 360, 93 S.E. 926; ROBERTS V. SOUTHERN R.CO., 143 N.C. 176, 55 S.E. 509; JACKSON V. AMERICAN TEL. AND TEL. CO., 139 N.C. 347, 51 S.E. 1015. IT IS ALSO WELL-SETTLED IN NORTH CAROLINA THAT WHERE AN EMPLOYEE DEVIATES FROM HIS EMPLOYMENT AND GOES ON A MISSION OF HIS OWN, THE RELATION OF MASTER AND SERVANT IS TEMPORARILY SUSPENDED AND THE MASTER IS NOT LIABLE FOR THE SERVANT'S ACTS DURING THE PERIOD OF SUCH SUSPENSION. SEE ROGERS V. TOWN OF BLACK MOUNTAIN, 224 N.C. 119, 29 S.E.2D 203; GILLIS V. GREAT ATL. AND P. TEA CO., 223 N.C. 470, 27 S.E.2D 283.

THE SUPREME COURT OF NORTH CAROLINA, IN PARROTT V. KANTOR, 216 N.C. 584, 6 S.E.2D 40, REITERATED THE ABOVE-STATED RULE AND HELD THAT THE DEVIATION COMMENCES WHEN THE SERVANT DEPARTS FROM THE COURSE OR PLACE WHERE IN THE PERFORMANCE OF HIS DUTY HE SHOULD BE, AND THAT THE RELATION OF MASTER AND SERVANT IS NOT RESTORED UNTIL THE SERVANT RETURNS TO THE PATH OF DUTY WHERE THE DEVIATION OCCURRED, OR TO SOME PLACE WHERE IN THE PERFORMANCE OF HIS DUTY HE SHOULD BE. THIS RULE WAS AGAIN STATED AND FOLLOWED BY THAT COURT IN VAUGHN V. BOOKER, 217 N.C. 479, 8 S.E.2D 603; AND IN HINSON V. VIRGINIA-CAROLINA CHEMICAL CORPORATION, 230 N.C. 476, 53 S.E.2D 448.

APPLYING THESE PRINCIPLES TO THE EVIDENCE BEFORE OUR OFFICE IN THE CASE AT HAND, IT IS APPARENT THAT MR. TUMLIN DEVIATED FROM HIS EMPLOYMENT AT THE TIME HE LEFT ATLANTA, GEORGIA, SINCE HE HEADED TOWARDS RAINSVILLE, ALABAMA, INSTEAD OF HIGH POINT, NORTH CAROLINA, WHERE HIS ORDERS DIRECTED HIM TO GO, AND THAT BY REASON OF THE ROUTE HE FOLLOWED HE WOULD NOT HAVE RETURNED TO HIS EMPLOYMENT UNTIL HE REACHED A PLACE IN HIGH POINT, NORTH CAROLINA, WHERE IN THE PERFORMANCE OF HIS DUTY HE SHOULD BE. THUS, IT IS CLEAR THAT, UNDER THE LAW PREVAILING IN NORTH CAROLINA MR. TUMLIN WAS NOT "ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT" AT THE TIME HE BECAME INVOLVED IN THE ACCIDENT FROM WHICH THE CLAIM HERE IN QUESTION AROSE. IN VIEW OF THIS FACT, THE UNITED STATES CAN HAVE NO LIABILITY UNDER THE FEDERAL TORT CLAIMS ACT AND OUR OFFICE CANNOT HANDLE THE CLAIM AGAINST MR. TUMLIN.