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November 4, 1965


The opinion of the court was delivered by: Will, District Judge.

Plaintiffs bring this action against Pfc. Robert Kumm and the United States to recover damages for injuries sustained in an accident between their automobile and an automobile driven and owned by Pfc. Kumm. The United States has been named a party defendant on the theory that, at the time of the accident, Pfc. Kumm was "acting within the scope of his office or employment" as a member of the United States Army, rendering the United States potentially liable for his conduct under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

The United States moves for summary judgment, asserting that Pfc. Kumm was not acting within the scope of his employment at the time of the accident, but rather, was pursuing his own interests on leave.*fn1 The relevant and uncontroverted facts are as follows. On June 25, 1963, Pfc. Kumm was receiving medical treatment at Fitzsimons General Hospital, Denver, Colorado. On that day, he received orders reassigning him to the 113th Intelligence Corps in Chicago, Illinois and authorizing fifteen days leave between the date of his release from Fitzsimons and the day he was due to report in Chicago. Pursuant to Army regulations, no mode of transportation was specified in the orders.

Pfc. Kumm was free, from the moment of his departure from Fitzsimons, to travel at his own pleasure and discretion, subject only to the requirement that he report for duty in Chicago at the time specified. The leave authorized under his orders is defined as absence from duty "to afford periods of respite from routine duty or to permit personal attention to matters not related to the military service". United States Army Regulation AR 630-5, 22 December 1960. ¶ 2(1). Under the same regulation, ¶ 20c, Kumm. was entitled to receive reimbursement for travel expense, not to exceed six cents a mile, based on the official mileage between Denver and Chicago, rather than on the route his leave entitled him to take.

Kumm was discharged from Fitzsimons on June 27 and traveled to his home in Winnetoon, Nebraska. On July 9, he purchased a Chevrolet motor vehicle. Three days later, on July 12, he left Winnetoon and began driving to Chicago, intending to report to the 113th Intelligence Corps on the 13th. En route, in Freeport, Illinois, he was involved in the collision which is the subject of this lawsuit.

The sole question raised by the instant motion is whether, under the facts stated above, Pfc. Kumm was acting within the scope of his employment. This is a question governed by the law of Illinois. See Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955).

Under Illinois law, the doctrine of respondeat superior is applicable only where the employment relation can be found to exist at the time and with respect to the conduct giving rise to the injury. Haynes v. Holman, 319 Ill. App. 396, 49 N.E.2d 324 (1943); Olender v. Gottlieb, 344 Ill. App. 552, 101 N.E.2d 622 (1951). Moreover, as Haynes clearly demonstrates, travel by an employee is not within the scope of employment unless it is in furtherance of the specific duties the employee was hired to perform, notwithstanding the fact that, insofar as the employee is concerned, his motivation for travel bears some relation to a business purpose and might have benefited his employer. For example, when traveling to work, an employee is preparing to perform his business duties. In doing so, however, he is engaged in his business and not the business of his employer. His arrival at work is theoretically necessary to further his employer's business, but that in itself does not require a finding that the act of travel is within the scope of his employment. See Hogan v. City of Chicago, 319 III.App. 531, 537-538, 49 N.E.2d 861 (1943); see generally, Annotation, 52 A.L.R.2d 287, 303 (1954).

Similarly, the nature of the employment relationship may vary with respect to the acts involved, partaking, with respect to certain elements, of a master-servant relationship and, with respect to other elements of a relationship akin to that of an independent contractor. Burster v. National Refining Co., 274 Ill. App.? 104, 110 (1934).

Burster is particularly relevant in establishing guidelines for the disposition of the instant case. That action arose out of a collision involving a vehicle driven by one Shockey, a salesman employed by defendant National Refining Company. The evidence showed that the employer exercised a considerable degree of supervision over Shockey's selling activities and that he was authorized to use his privately-owned vehicle for such purposes. The accident, however, occurred while Shockey was driving to his home (and office) at Woodstock, Illinois from a company sales meeting in Peoria. Shockey was directed to attend the Peoria meeting but was given no directions as to the route or method of travel to be used. He received an expense check calculated on the basis of the rail fare from Woodstock to Peoria and return. Relying principally on the finding that Shockey's automobile travel was not at the direction nor under the control of his employer and that he was free to use his own discretion as to how and when he should travel, the court found that he was not acting as a servant of National Refining Company at the time of the accident.

Plaintiff in Burster, of course, contended that Shockey's trip had a "dual purpose", that he was acting in his own behalf and as a servant of his employer. Plaintiffs here similarly submit that Pfc. Kumm was both enjoying his last day or two of leave and proceeding to his new military post. However, the dual purpose concept is applicable only if the employment relationship exists at the time of the accident. Burster suggests that the relationship of master and servant exists only insofar as the employer sought to be charged has some right to control the party involved in the accident with respect to the conduct giving rise to the injury.

Hogan, however does not overrule the Burster principle that the right to control the conduct involved is an element to be considered in determining the preliminary question, viz., whether the employment relation necessary to respondeat superior existed at the time of the incident. In the instant case, there is neither actual control nor any basis for implying control.

In general, control will be implied by law if the activity of the employee at the time bears such a connection to the business of the employer as will permit the conclusion that responsibility for the employee's conduct in such a situation is fairly included within the risks of doing business assumed by the employer. The absence of such a connection may indicate that the employment relation has been temporarily suspended. Thus, in Rupp v. Walgreen Co., 270 Ill. App. 346 (1933). The court concluded that the employment relation was suspended during an employee's dinner hour, resting its decision on the fact that the employee's conduct during such period is in no way determined by the fact of his employment. Quoting from Bloom v. Krueger, 182 Wis. 29, 31-32, 195 N.W. 851 (1923), the Illinois court pointed out that the time involved was the "employee's time" and not the employer's. 270 Ill. App. at 352. Of course, the fact that the employee must return to work at the conclusion of the period affects his liberty to utilize the time away from duty. However, the factors which determine the employee's conduct during such a period are ones which are unrelated to the business of his employer. The employer cannot fairly be said to have assumed the risk inherent in the employee's decision as to whether he should walk to a nearby restaurant or drive home or visit a friend on the outskirts of town. These are choices made on the basis of the employee's personal preferences and he alone assumes responsibility for the related risks.

This same distinction is evidenced in decisions in other jurisdictions respecting the second facet of the problem here presented, viz., the responsibility of the United States for travel by military personnel between assignments. Plaintiffs point to several cases entering judgment under the Tort Claims Act, however, in each instance where scope of employment was in issue, the court distinguished the case of travel coupled with leave from the point-to-point transfers involved in the case before it. The basis for this distinction is identical to that suggested in the Illinois cases, supra: when the soldier is at liberty, the act of traveling between posts at his own leisure and discretion bears no relation to the ...

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