Claims § 127.1 Act for injuries to servicemen which arise out of, or are in the To the extent that course of activity incident to the service. Brooks v. U. S., 337 US 49, 93 L ed 1200, 69 S Ct 918, has survived the decision in the Feres case, it must be confined strictly to its own facts. Zoula and Sterling v. United States (CA5th, No. 14901), 217 F2d 81, 24 November 1954. 3. OPERATION OF MOTOR VEHICLES § 127.1. Generally. § 127. Scope of Employment The A serviceman was ordered to act as military escort for the body of a deceased serviceman being transported to the next of kin. usual procedure was for the escort to travel in the mortician's vehicle with the body but in this case the escort did not get his orders until after the mortician had left. His orders authorized travel at his The orders said nothing own expense subject to reimbursement. about the means of transportation. A bus line was available and there were official cars which could be made available. The escort determined to use his own private car without making any inquiries While about public transportation or the use of an official car. making the trip he was involved in an accident and the driver of the other car brought an action for personal injuries against the government under the Federal Tort Claims Act which provides in pertinent part that the United States shall be liable for personal injury caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his employment under circumstances where the United States, if a private person, would be liable. It is also provided that acting within the scope of employment in the case of a member of the military forces means acting in line of duty. Held: The government was not liable under the Federal Tort Claims Act. The phrase "line of duty" in the statute as applicable to military and naval personnel does not expand the phrase "scope of employment" as generally understood in the doctrine of respondeat superior. In the instant case the escort was acting in the line of duty but he was not within the scope of his employment since there is nothing to warrant a conclusion that he was authorized to use his own automobile in carrying out his orders. There was no evidence that he had ever previously used his own automobile for government business and therefore no suggestion that his use of it was induced by prior knowledge, approval or acquiescence of his superior officers. He was directed to travel at his own expense subject to reimbursement but there was no direction either written or verbal to use his own automobile. (Citing U. S. v. Eleazer, 177 F2d 914, cert den 339 US 903, 9 L ed 1333, 70 S Ct 517; U. S. v. Sharpe, 189 F2d 239; Rutherford v. U. S., 73 F Supp 867, affd 168 F2d 70; Bach v. U. S., 92 F Supp 715; Jozwiak v. U. S., 123 F Supp 65 and other cases.) Paly v. United States (1954, DC Md), 125 F Supp 798. [Actions under Federal Tort Claims Act generally, see 54 Am Jur, United States, Supp $ 94.5.] The plaintiff in an action against the United States under the Federal Tort Claims Act was injured and his wife was killed in a collision with an automobile being driven by an Air Force enlisted man. The airman collected separate rations and was authorized to eat his meals wherever he chose. At the time of the accident he and some friends were on the way to lunch and he was driving his own private automobile. Held: The government was not liable. Responsibility may be imposed upon and recovery had from the government only when the negligence or wrongful act or omission of the employee occurred while acting within the course and scope of his office, employment, or duty 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. No business of the Air Force was served or furthered by the airman's decision to buy an automobile for his personal use or, by its use by him, to transport himself and his friends to places of his own choosing, none by his using it for his meals or other personal purposes. Where, as here, the car is the private car of the employee, no control whatever is assumed over, and no direction given to, the employee, in connection with his going to and from his work or to and from his meals or on other personal missions in it, and there is no evidence or even claim that he was expected to use, or did use, it on the business of his employer, it is the general rule that the employer is not liable. (Citing sec 3002 Blashfield's Cyclopedia of Automobile Law and Practice; Southwest Dairy Products Co. v. De Frates, 132 Tex 556, 125 SW2d 282, 122 ALR 854; 45 Tex Jur, sec 122; Holditch v. Standard Accident Insurance Co., 208 F2d 721; U. S. v. Campbell, 172 F2d 500 and other cases.) Moye v. U. S. (CA Tex, 1955) 218 F2d 81. [See 1 ALR2d 222.] 4. OPERATION OF AIRCRAFT § 137. In General A United States Military Academy cadet was killed in the crash of a military aircraft in which he was riding as a passenger while returning to West Point from leave. His parents sued the United States under the Federal Tort Claims Act (28 USC 1346(b), 2671–80). Held: A cadet riding in a military aircraft while on leave is under control of a superior officer and subject to military discipline, and, therefore, no action under the Federal Tort Claims Act for injuries sustained through whatever cause can be maintained. This principle would not vary even though the serviceman were on the plane voluntarily or by command. Under such circumstances his parents could not recover for his death. (Note: Although the Ninth Circuit Court of Appeals did not so state, it apparently found Archer's death to be "incident to service" and, therefore, within the doctrine laid down by the Supreme Court of the United States in Feres v. United States, 340 US 135, 95 L ed 152, 71 S Ct 153). Archer v. United States (1954), 217 F2d 548. 22 October 1954, Cert den 28 February 1955, 348 US 953. District Court decision, 112 F Supp 651, SD, Cal, 1953. COMMISSARIES, POST EXCHANGES, AND § 17.1. Generally. § 17. Selling Prices The book store at the Quartermaster School in Virginia procures its stocks from out-of-State publishers who refuse to sell to the store unless it agrees to maintain specified minimum prices on resale. The book store is a nonappropriated fund activity and, as such, limited to a profit of 10 per cent of net sales. If it is required to sell at the stipulated prices, its profits will exceed this percentage. Held: The act of 14 July 1952 (66 Stat 631), validating contracts made under state laws and policies authorizing agreements prescribing minimum prices for the resale of commodities and extending such minimum prices to persons who are not parties thereto, does not authorize a state to extend its fair trade laws over installations and activities of the Federal government. Accordingly, the Virginia Fair Trade Act which provides that a seller may agree not to sell his commodity to any retailer who does not agree to resell the same to consumers at not less than a stipulated minimum price is not applicable. However, in the absence of facts indicating a combination in restraint of interstate trade, the publishers have the right to refuse to sell to the book store at the Quartermaster School if the store does not observe the minimum specified resale prices. If the publishers will not voluntarily recede from such requirements the book store should seek other sources of supply. If it is not possible to maintain profits within the ten per cent net sales, guidance should be obtained from the responsible major commander. (See par 7, SR 210-130-1, 4 Feb 1954; U. S. v. Colgate & Co., 250 US 300, 302, 306-7, 63 L ed 992, 994, 996, 39 S Ct 465, 7 ALR 443; U. S. v. Bausch & Lomb Optical Co., 321 US 707, 721-2, 88 L ed 1024, 1034, 64 S Ct 805; and cases cited therein.) JAGA 1954/4517. 4 May 1954. COMMUNICATIONS AND CORRESPONDENCE § 5.1. Generally. § 5. Telephones and Telegraphs In the absence of statutory authority, the Army may not use funds appropriated for communications services to provide unofficial users on Eniwetok with telegraphic services. (Citing R. S. 3678, 31 USC 628; 15 Comp Dec 178; 28 Comp Gen 38.) JAGA 1954/1604. 23 Feb 1954. $ 5.51. Telephones in private residences. A telephone was installed in the private residence of the Chief of Staff of the Seventeenth Air Force located in Morocco. The commanding general of the Seventeenth Air Force advised that the Chief of Staff assumes command in the general's absence and hence it is imperative to have the means of contacting him during off duty hours. The general's statement further indicated that telephones were not common in Morocco because of the high installation charges and that only a few Americans in the area have telephones and accordingly a telephone for personal use would be of little value and the only use the officer would make of the phone would be for business calls to headquarters. He further stated the installation of a phone was a military necessity and that except for such necessity the phone would not have been installed. Held: The cost of the telephone service may not be paid from appropriated funds. The language of sec 7 of the Act of 23 August 1912 (37 Stat 414) as amended by the Act of 30 April 1940 (50 Stat 175; 31 USC 679), constitutes a mandatory prohibition against the payment from appropriated funds of any part of the expense of furnishing telephone service to a government officer or employee in a private residence irrespective of the desirability or necessity of such service from an official standpoint. (Citing 19 Comp Dec 198; 22 Comp Dec 602; 4 Comp Gen 19; 7 Comp Gen 651; 11 Comp Gen 87; 11 Comp Gen 365; 15 Comp Gen 885; 15 Comp Gen 963; 16 Comp Gen 59; 21 Comp Gen 239; 21 Comp Gen 997; 26 Comp Gen 668. Cf. 18 Comp Gen 502; 21 Comp Gen 905; 32 Comp Gen 431.) MS Comp Gen B-119536, 33 Comp Gen 530. 28 April 1954. § 5.61. Monitoring telephone conversations. There is wire recording equipment associated with two telephones in the office of the Secretary of the Navy and it has been customary for either a telephone receptionist or a secretary to monitor the telephone conversations of the Secretary and the Naval Aide to the Secretary. The Secretary can cut off any recording or monitoring of his telephone conversations if he so desires. All telephone recording devices in use in the Department of Defense are equipped with automatic tone-warning devices as prescribed by the Federal Communications Commission. Current conflict in court decisions regarding what constitutes an "interception" within the meaning of Section 605, Communications Act of 1934, 47 USC 605, is analyzed. Rulings of the Federal Communications Commission and Department of Defense directives are also considered. The composite effect of all of these restrictions is embodied in the holding. Held that: a sound recording device may be used only if all of the following conditions are met: (1) prior consent of all parties to the conversation has been obtained; (2) its use is authorized after a determination that there is a specific requirement for exact reproduction; (3) it is activated by some means other than an induction coil; and (4) it is equipped with a means for disconnection and used with an automatic tone-warning device installed and maintained in accordance with FCC requirements. stenographic monitoring or recording may be employed if it is done with the consent or by the authority of at least one of the parties to the telephone conversation. persons responsible for either sound or stenographic recording of a telephone conversation accomplished without consent or authority from at least one of the parties may be subject to civil and criminal liability if the intercepted message is divulged in any form to a third party. - persons responsible for the use of a sound recorder in connection with interstate or foreign telephone service without a means of disconnection and an automatic tone-warning device installed and maintained in accordance with FCC requirements may be subject to criminal liability. - the use of a sound recorder in violation of any of the conditions set forth in the first paragraph above, in connection with any defense establishment telephone which is connectable to a commercial switchboard, constitutes a violation of a directive of the Secretary of Defense. Op JAGN 1954/212. 3 April 1954. See also ACM S-9772, Ellwein, EVID § 69.5. § 8. Mails and Postal Service, Generally § 8.27. Part paid mail. Sections 5 and 6 of the Act of 3 March 1877 (19 Stat 335, 336), as amended (39 USC 321), which authorize free delivery of part paid mail addressed to any of the departments or bureaus of the government except where there is good reason to believe that the omission to prepay the full postage was intentional, authorize such free delivery only where the mail matter involved is addressed to a department or bureau at the seat of the government in Washington D. C. (See 15 Ops Atty Gen 262, 266-267; Note in sec 43.7, Title 39 of the Code of Federal Regulations.) JAGA 1954/6391. 2 August 1954. § 9. Official Correspondence § 9.11. Use of command line. It is not illegal to omit the command line on letters and other directives. However, the command line is essential to show whether |