Knoch and Kiley, Circuit Judges, and Major, Senior Circuit Judge.
MAJOR, Senior Circuit Judge.
These actions were brought under the Federal Tort Claims Act (28 U.S.C.A. Secs. 1346(b) and 2671 et seq.) to recover damages occasioned by the negligence of Specialist 4th Class Ronald R. Wehe while an enlisted member of the Armed Forces of the United States. An action was commenced by plaintiff Paul Allen Tilden, to recover for the wrongful deaths of his three minor children. Another action was commenced by plaintiff Arlene Tilden to recover for personal injuries and expenses incurred in connection therewith. The two cases involve the same factual and legal questions and were consolidated and tried before the District Court without a jury. The Court made its findings of fact, entered its conclusions of law and rendered a judgment adverse to plaintiffs, from which this appeal is taken.
The occurrence giving rise to the controversy took place about 6 p.m. on Monday, November 19, 1962, when Wehe, driving his automobile at a high rate of speed in a westerly direction on Oakhill Road drove into the intersection of Wagner Road and Oakhill Road in the town of Porter, Indiana, without stopping for a stop sign, and collided with a car owned by plaintiff Paul Allen Tilden and operated by his wife, Arlene Tilden. As a proximate result of such collision, Arlene Tilden suffered personal injuries and the minor children were killed.
The case appears to have been tried in the District Court on two theories, (1) that Wehe was driving his own automobile in line of duty and that the United States was liable for his negligence, and (2) that the government was negligent in permitting Wehe to drive his automobile in an intoxicated condition in violation of an asserted agreement between Wehe's supervisors and a state officer. Plaintiffs here have abandoned the first issue and rely on the second.
On this issue it is ably argued that the government was negligent under the Good Samaritan doctrine by its failure to perform an agreement made between its officials and those of the State of Indiana, by which the activities of Wehe were to be restricted. Further, it is argued that in any event if the restrictive agreement terminated prior to the time of the accident, the government was negligent in not giving notice thereof to the state officials.
We shall first state the unquestioned facts as found by the District Court and follow with those which plaintiffs would have us reject. Wehe was on active duty with the Army on and prior to November 19, 1962. He was assigned to Battery B, 1st Missile Battalion, 60th Artillery, Porter, Indiana (Porter Nike Site). Orders transferring him to Alaska were to become effective on November 20, 1962, at 12:01 a.m. Thereafter, he had thirty days' leave in transit before reporting for duty at his assigned base in Alaska.
Early Saturday, November 17, 1962 (the fatal occurrence took place about 6 p.m. on Monday, November 19), Wehe was arrested by Indiana State Trooper Charles T. Miller, on charges of drunken driving, reckless driving, running a stop sign and property damages. He was placed in the Porter County Jail pending filing of charges. Curtis L. Jordan, Duty Officer at Porter Nike Site, was notified at about 2 a.m., November 17, of Wehe's detention and of the charges to be filed against him. Lt. John F. Bateman picked up Wehe at the jail in the morning of November 17, and transported him to the court of Justice of the Peace of Porter County, Reginald Pomeroy. Wehe entered a plea of guilty to a charge of drunken driving, a fine was imposed and his Wisconsin driver's license suspended in Indiana for a period of one year. Upon payment of the fine, Wehe was returned to Porter Nike Site by Lt. Bateman, who reported the nature of the proceedings and the outcome of the trial to Jordan, who restricted Wehe to the base and ordered him not to drive his car pending review of his case by Capt. Jose Pena, Commanding Officer of Battery B.
Pena made an investigation and on Monday morning, November 19, prior to 9:30 a.m., lifted the administrative restriction which had been imposed upon Wehe. In doing so he determined that no outstanding charges were pending against Wehe and no basis existed for imposing any form of punishment or further restriction. By 9:30 a.m., November 19, Wehe had completed the signing out and clearance procedures in connection with his transfer to Alaska. At approximately the same time, he was released from the Porter Site as a passenger in a military vehicle driven by another enlisted soldier. He was thus released so that he might attend to some business matters and was then to be driven to the residence of his wife and family outside the base. The military vehicle and its driver, without Wehe, returned to the base at or before noon on November 19.
Later in the morning Wehe went to an auto repair shop in Chesterton, Indiana, to have some minor repair work done to his automobile. He returned for the automobile at about 5:30 that evening, under the influence of intoxicating liquor. About thirty minutes later the car owned and operated by him collided with the car operated by Arlene Tilden, with the consequences already noted. At the time of the collision Wehe was not acting within the scope of his employment or within his line of duty as a member of the Armed Forces.
The sole attack here is upon a portion of Finding 6, Finding 10 and Conclusion of Law No. 2. The disposition of the case here may well depend upon whether such findings and conclusion are approved or rejected.
Finding 6 relates to an agreement between Bateman and Miller, allegedly made prior to the appearance of Wehe in Judge Pomeroy's court. The finding states:
"Officer Miller and Lt. Bateman then discussed the charges to be filed against Wehe. Miller agreed to file the charges in Judge Pomeroy's Court where no jail sentence would be imposed. Lt. Bateman stated that Wehe would be restricted to the Porter Nike Base until he was released from said base to go to Alaska. Officer Miller and Lt. Bateman contemplated this ...