(dissenting).
I cannot agree with the conclusion reached by my associates.
Since the government concedes negligence the only question before us is whether or not the driver of th.e army truck was, at the time the accident occurred, acting within the line of his duties or the scope of his office or employment so as to create liability on the part of the United States under the Federal Tort Claims Act. That Act , establishes liability only “under circumstances where the United States, if a private person, would be liable.” Clearly Congress did not intend for the United States, as an employer, to be singled out as standing iii some “peculiar relationship” to its employees so as to subject the sovereign to greater liability than that imposed upon an ordinary private employer under the “law of the place.”
The Fifth Circuit has held that, as used in the Act, “line of duty” is equivalent to “scope of employment” and is to be determined by the doctrine of respondeat superior in the same manner and to the same extent ¿s the liability of private persons *747under that doctrine is measured in the various states. United States v. Campbell, 5 Cir., 172 F.2d 500, certiorari denied 337 U.S. 957, 69 S.Ct. 1532.1 See also Hubsch v. United States, 5 Cir., 174 F.2d 7. I think that these two cases correctly state the proper rule of law, are in point, and (under California law) should control our decision in this case.
The majority opinion states, “It is not questioned that it was within Sergeant Brander’s line of duty to seek recreation in the town of Klamath.” I disagree with that conclusion. It avoids the question before us. Perhaps Brander was given “permission” to use the army truck but the majority has apparently confused “line of duty” or “scope of employment” with “permission” or “authority.”
The officer in charge testified that the only “permission” given was to use the truck for the purpose of transporting the men to town; it was then supposed to be parked alongside a building there. Evidence that this rule had not been strictly enforced might perhaps be sufficient to suggest implied authority to use it for personal purposes. However, it is immaterial whether or not the driver had “permission” or “authority” to drive the truck from the center of town to the dance because in so doing he was merely using the truck for his own personal pleasure and not in any manner fulfilling his duties of employment. Even if he had express permission to use the truck for that purpose his employer would not be liable under recognized uniform respondeat superior rules. On this point see 22 A.L.R. 1400, 45 A.L.R. 480, 68 A.L.R. 1053, 80 A.L.R. 727, 122 A.L.R. 858, Restatement of Agency § 238(b). The California decisions are in accord. Kish v. California State Auto. Ass’n, 190 Cal. 249, 212 P. 27; Kadow v. City of Los Angeles, 31 Cal.App.2d 324, 87 P.2d 906.
In the Kadow case it was held that a policeman, who, out of courtesy, was transporting his superior officer from a policemen’s barbecue in Elysian Park to the police station in a city-owned vehicle, was not acting within the scope of his employment. In the Kish case the servant had express authority to use his master’s truck to drive to and from meals and the meals were paid for by the master. The purpose of this permitted use was to allow the employees more time to devote to their work. The accident occurred while the driver was on his way downtown to get his evening meal. Judgment of nonsuit in favor of the employer was sustained. In view of the “recreation-morale” theory adopted in the instant case, it is interesting to note that the California court in the Kish case said [190 Cal. 249, 212 P. 29], “We cannot assent, to the reasoning of plaintiff that because it was necessary for employees to eat and sleep in order to perform the labor for which they are employed, that these acts are incidental to their employment.”
Section 402 of the California Vehicle Code imposes liability on owners of motor vehicles for acts of drivers who are driving the vehicles with the permission of the owners, without regard to the question of scope of employment. As the trial court correctly pointed out in its opinion, D.C., 79 F.Supp. 925, 928, that statute has no application here because, in the Federal Tort Claims Act, the sovereign surrendered its immunity to suit only where the act in. question is performed within the scope of (here army) employment. I take it that the majority, despite its discussion concerning the Sergeant’s “authority” to drive the vehicle, does not impose liability on the basis of this California imputed liability' statute.2 The decision of the court appears to rest solely on the ground that recreation and pursuit of pleasure are, as a matter of law, a part of a soldier’s duty and within the scope of his army employment.
This is a novel doctrine and one which places upon the government (contrary to the plain terms of the Act) a higher degree of responsibility than rests upon private employers. It opens a vast area of gov*748ernmental liability whose boundaries, if any there be, will only be limited by the ingenuity and resourcefulness of our sailors and soldiers in their energetic search for entertainment and diversion. To be sure, soldiers and sailors are permitted to seek and find recreation and enjoyment wholly aside from official duties doubtless with the thought that such “outside” activities will help their morale. A realistic appraisal of such diversions must lead to the conclusion that in general they represent nothing but an expenditure of energies in a restless search for pleasure. To give them the legal status of “duties” incident to the “scope of employment”, of our fighting men will invite, a veritable Niagara of suits based on causes of action which I believe to be entirely .outside the orbit of the Act.
The cases relied upon by the majority which concern seamen’s suits for maintenance and cure are not in point. They were based on the long established policy of “encouraging marine commerce and assuring the well-being of seamen.” See Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. at page 932. Legislation in favor of seamen has always been accorded liberal construction by the courts. A recent restatement of that policy is found in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 790, 69 S.Ct. 1317, 1321, “The Jones Act [46 U.S.C.A. § 688] was welfare legislation that created new rights in seamen for damages arising from maritime torts. As welfare legislation, this statute is entitled to a liberal construction to accomplish its beneficent purposes.”
In support of their position the majority finds an analogy in our Ellis v. American Hawaiian S. S. Co., 9 Cir., 165 F.2d 999. But our holding in that case is not authority for our decision in the instant case. In the Ellis case we see exemplified the traditional spirit of liberality displayed (and required) in dealing with a seaman’s claim against his employer for wages, maintenance, care, cure and repatriation to his port of shipment. Our decision was but a reflection of a historic policy which is part of general maritime law—a policy so clearly described by Professor James Henry Willock. 46 U.S.C.A. The claim of Ellis under maritime law for the relief he sought from his employer is in no wise analogous to a situation where Ellis might, have ■ committed an 1 independent tort against a civilian (of the character shown in the instant case) and then an effort be made to impress legal liability on the employer for this wrong.
For similar policy reasons an opinion of the Attorney General concerning allowance of pensions or other disability benefits seems inapposite! So much may also be said concerning the opinion of a Judge Advocate General who was of the view that engaging in “athletic exercises” is within a soldier’s line of duty. Even so, this is a far. cry from imposing liability on the government for the torts of a soldier merely because he is permitted to “exercise” to aid his morale. Killing a private citizen with an army truck being driven for pleasure purposes is not the equivalent of indulging in bodily exercise for health and morale purposes.
The Federal Tort Claims Act is not in any sense “welfare legislation” and I see no policy reason for the so-called “liberal construction” we have applied to it. To all of the foregoing may be added the further observation that statutes which relinquish the immunity of the sovereign must be strictly interpreted. United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058, and cases there cited.
I think that the majority is here assuming that the government somehow stands in loco parentis so far as regards its relationship to members of the armed services. Even if that be true, I take it to be the well established common law rule that parents are not responsible for the torts of their children. Hudson v. Von Hamm, 85 Cal.App. 323, 259 P. 374. Perhaps the instant decision rests, by analogy, upon the “family car doctrine” which imposes liability upon the parent for torts committed by children in the course of their driving the family automobile. See Crittenden v. Murphy, 36 Cal.App. 803, 173 P. 595. But if Congress had intended to create broad liability of that character it would have done so in plain terms and only a tortured con*749struction. will expand the Act. to include such a principle of law.
Sergeant Brander was, at the time of the accident, engaged in the pursuit of his own personal recreation and pleasure, and even though such pursuit would indirectly tend to contribute to the efficient performance of his duties by aiding his “morale,” (and to that end was encouraged and authorized by his superior officer) such use of the army truck was not incidental to his employment and not within the scope of his employment within the permissible limits of the respondeat superior doctrine.
The judgment of the lower court should be affirmed.
. For similar holding by Fourth Circuit, see United States v. Eleazer, 177 F.2d 914, 918.
. See Long v. United States, D.C., 78 F.Supp. 35. See also Hubsch v. United States, supra.