(dissenting).
I would affirm the judgments in these consolidated cases. In my opinion, United States District Judge Boyd correctly found upon the facts in evidence that, in operating the Army airplane for training purposes, the Lieutenant in command and the other members of the aircraft crew at the time of the crash were acting in their line of duty and within the general scope of their employment as officers and enlisted men of the United States Air Force.
Under Tennessee law, as well as the law generally, the mere fact that an employee is acting in disobedience of orders or instructions given him by his employer does not preclude a finding that he was acting within the scope of his employment. The officers and crew of the airplane were duly authorized to take off and use the airplane on a training flight. Their orders directed them to fly for six hours in a prescribed flying area and to perform various training operations.
The plane delivered to the men carried an eight-hour supply of gasoline. It was equipped with radio for communication with the Air Base. The prescribed local flying area was within a radius of some 85 miles from the Air Base. The plane remained in the local flying area for a time and made, as ordered, one simulated landing and take off. However, it departed from the local flying area by approximately 190 miles and made two low passes over the town of Huntingdon, Tennessee. This deviation was in disobedience of orders and in violation of regulations.
On the second pass over the courthouse at Huntingdon, the aircraft began to disintegrate; the gasoline streaming from it was ignited; and the plane crashed and burned in a field some one-half or three-fourths of a mile from the courthouse. All its crew members were killed.
Appellees, who were working in a garden nearby, were severely injured by burning gasoline which fell from the plane. Their injuries were admittedly directly and proximately due to the negligence of the occupants of the Army plane.
The controlling clause of the Federal Tort Claims Act, 28 U.S.C.A., § 1346(b), provides for recovery of damages caused to anyone “by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The Tennessee law is, therefore, the governing law of the case.
Fundamentally, the majority opinion applies the doctrine of deviation in master and servant cases relating to the operation of automobiles. In my judgment, the analogy is not a true one and its use is an unjustifiable extension of the case-law system beyond its proper confines. An airplane is operated in defiance of the laws of gravity and is a far more dangerous instrumentality than is an automobile. To afford earth-dwellers no compensatory protection from falling airplanes, negligently operated, merely because the doctrine of deviation is accepted in Tennessee as a defense in automobile damage suits, sets a dangerous precedent which in my view is not required, either in logic or under Tennessee law.
In the instant case, the negligent operators of the airplane were put in possession of the plane and were flying it in the line of their duty as trainees. The Government, being under the statute in the position of “a private person,” should *656be held to the same accountability, as ■would be a commercial airline. I consider that there is no binding Tennessee precedent compelling the decision which the majority has reached; and that this court is free to apply its Own independent reasoning to -reach the substantial justice of the case, which I think supports the judgments awarded the .injured persons.