United States v. Holly (two Cases).united States v. Saunders, 192 F.2d 221 (10th Cir. 1951)

The plaintiffs brought these separate actions under the Federal Tort Claims Act¹  to recover damages for injuries sustained when an automobile driven by C. B. Holly was struck by a jeep owned by the United States and driven by Emil H. Maness, a member of the Oklahoma National Guard. The cases were consolidated for trial. At the time of the accident Maness was employed as a "unit caretaker" assigned to Company F of the 279th Infantry, 45th Division, Oklahoma National Guard. The court found that the injuries to the plaintiffs were caused by the negligence of Maness in the performance of his duties as a caretaker of United States property and entered judgment for each of the plaintiffs. The United States has appealed.

The United States does not question the sufficiency of the evidence to sustain the findings that Maness was negligent and at the time was engaged in the performance of his duty as a caretaker of United States property assigned to the Oklahoma National Guard. It submits only the question of whether Maness was an employee of the United States within the meaning of the Federal Tort Claims Act. We think this question must be answered in the affirmative. 32 U.S.C.A. § 42 authorizes the employment of caretakers for the care and maintenance of matériel, animals, armament and equipment belonging to the United States and assigned to National Guard organizations. The compensation for these services is paid from funds allotted by the Secretary of the Army for the support of the National Guard under such regulations as the Secretary of the Army may prescribe. The compensation paid to caretakers who belong to the National Guard is in addition to any pay authorized for the members of the National Guard. 32 U.S.C.A. § 42a provides for the use of help employed as caretakers for duties other than that of caretaker "if such additional services do not interfere with the complete performance of the duties for which they are employed".

National Guard regulations No. 75-16, dated December 29, 1947, as amended April 16, 1948, promulgated by the Secretary of the Army, delegate to the several Adjutants General of the States authority to employ, fix rates of pay, establish duties and to discharge caretakers subject to instructions issued by the Chief, National Guard Bureau.²  Travel of caretakers essential to proper performance of their official duties is authorized.³  Maximum pay scale is fixed by the Chief, National Guard Bureau, but the Adjutants General are authorized to fix the actual pay within that maximum. Compensation for overtime work may not be paid from Federal funds.⁴  Payment is made on standard forms provided for by the United States.⁵  The regulations provide in detail the right of caretakers to annual leave, sick leave and military leave including accumulation of annual and sick leave.⁶ 

Thus the Federal statute creates the position of unit caretaker and generally outlines the duties. The pay for these services is wholly from Federal funds. The regulations define the duties and responsibilities in detail. The maximum pay scales are fixed by the Secretary of the Army, while actual rates of pay, within the limits fixed by regulation, are established by the State Adjutant General by virtue of the delegation of that power from the Secretary of the Army. The primary duties of the caretakers are the care and maintenance of Federal property assigned to the National Guard for military purposes. Through the State Adjutant General, the Secretary of the Army and the Chief of the National Guard Bureau have complete control over the work of the caretaker, including his employment and discharge. The federal government maintains a reasonable measure of direction and control over the method and means of a caretaker's performing his service. There is present every element necessary to constitute a unit caretaker an employee of the United States.⁷  The fact that under the regulations the caretaker must be a member of the National Guard and perform duties for the state is immaterial. The injuries were caused while the caretaker was in the performance of his duties for the United States, not the state.

The United States apparently is of the view that our decision in Williams v. United States, 10 Cir., 189 F.2d 607, controls here. The holding in that case was that members of a unit of the National Guard which had not been ordered into active service of the United States were in the service of the state and not of the United States and were not employees of the United States within the meaning of the Federal Tort Claims Act. The complaint in the Williams case alleged that the injuries were caused by the negligence of a member of the National Guard "while acting within the scope of his employment as a member of the National Guard of Oklahoma." If, at the time of the accident, Maness had been acting within the scope of his service as a member of the National Guard of Oklahoma, there could be no recovery from the United States, but he was acting in the course of his employment as a caretaker of United States property as contemplated by the foregoing statutes and regulations, not the National Guard.

Judgment in each case is affirmed.