Fernando Quinones Perez v. United States

First Circuit

Fernando Quinones Perez v. United States

368 F.2d 320, 1966 U.S. App. LEXIS 4353

CourtCourt of Appeals for the First Circuit

DecidedNovember 16, 1966

Docket6781_1

StatusPublished

Cited by4 cases

This text of 368 F.2d 320 (Fernando Quinones Perez v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fernando Quinones Perez v. United States, 368 F.2d 320, 1966 U.S. App. LEXIS 4353 (1st Cir. 1966).

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Opinion

OPINION OF THE COURT.

PER CURIAM.

Plaintiff appellant was injured in Connecticut by a car belonging to, and driven by, one James, an enlisted man, who was on liberty, but driving between his home and his duty station. He seeks recovery under the Federal Tort Claims Act, on the ground that James was acting in the line of duty, viz., in the course of his employment. Merritt v. United States, 1 Cir., 1964, 382 F.2d 397, 398. We do not agree. James was merely commuting. That the Navy gave him a subsistence allowance, or that he was subject to call (but had not been called) at other than his regular duty hours, or that he could be court-martialed for proscribed activity while on liberty, did not mean that such commutation was for the benefit of, or was sufficiently controlled by, his employer to bring it within the scope of his employment. We have examined the Connecticut cases and find none rejecting the ordinary rule that a servant is not engaged in his master’s business when travelling between home and work. Restatement (Second), Agency § 229, comment d. In the absence of an affirmative showing we will not assume that Connecticut would hold otherwise. Merritt v. United States, supra.

Affirmed.

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OPINION OF THE COURT.

PER CURIAM.

Plaintiff appellant was injured in Connecticut by a car belonging to, and driven by, one James, an enlisted man, who was on liberty, but driving between his home and his duty station. He seeks recovery under the Federal Tort Claims Act, on the ground that James was acting in the line of duty, viz., in the course of his employment. Merritt v. United States, 1 Cir., 1964, 382 F.2d 397, 398. We do not agree. James was merely commuting. That the Navy gave him a subsistence allowance, or that he was subject to call (but had not been called) at other than his regular duty hours, or that he could be court-martialed for proscribed activity while on liberty, did not mean that such commutation was for the benefit of, or was sufficiently controlled by, his employer to bring it within the scope of his employment. We have examined the Connecticut cases and find none rejecting the ordinary rule that a servant is not engaged in his master’s business when travelling between home and work. Restatement (Second), Agency § 229, comment d. In the absence of an affirmative showing we will not assume that Connecticut would hold otherwise. Merritt v. United States, supra.

Affirmed.

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368 F.2d 320, 1966 U.S. App. LEXIS 4353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernando-quinones-perez-v-united-states-ca1-1966.

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