177 F.2d 535 (2nd Cir. 1949), 61, Feres v. United States

Docket Nº:61, 21426.
Citation:177 F.2d 535
Case Date:November 04, 1949
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 535

177 F.2d 535 (2nd Cir. 1949)




Nos. 61, 21426.

United States Court of Appeals, Second Circuit.

November 4, 1949

Argued Oct. 10, 1949.

Page 536

Morris Pouser, Endicott, N.Y., for plaintiff-appellant.

H. G. Morison, Assistant Attorney General, Irving J. Higbee, United States Attorney, Edmund Port, Assistant United States Attorney, Syracuse, N.Y., and Paul A. Sweeney, Massillon M. Heuser and Morton Hollander, Attorneys, Department of Justice, Washington, D.C., for defendant-appellee.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This is an appeal from an order dismissing an action brought by the executrix under the will of Rudolph J. Feres, deceased, against the United States to recover damages under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. The decedent, an army lieutenant, while on active duty in the service of the United States, was killed by fire in a barracks in Pine Camp, New York, a military post of the United States in which he had been required to be quartered by superior officers.

The complaint alleged negligence on the part of the officers who required the deceased to be quartered in barracks which they knew or should have known to be unsafe due to a defective heating plant further negligence on the part of the fire guard assigned to the area in which the fire occurred and of the supervisors of the latter. Judge Brennan dismissed the complaint on the authority of United States v. Brooks, 169 F.2d 840. That decision was by a divided court in the Fourth Circuit. The majority in an opinion by Judge Dobie, in which Judge Watkins concurred, held that there could be no recovery on behalf of two soldiers who while on furlough and taking a pleasure drive suffered death and personal injury respectively through collision with an army truck. Judge Parker dissented on the ground that the language of the statute allowed suits by soldiers. The majority relied on the analogy to the decisions in this court refusing to allow naval personnel to recover damages under the Public Vessels Act, 46 U.S.C.A. § 781 et seq. Dobson v. United States, 2 Cir., 27 F.2d 807 certiorari denied 278 U.S. 653, 49 S.Ct. 179, 73 L.Ed. 563; Bradey v. United States, 2 Cir., 151 F.2d 742, 743, certiorari denied 326 U.S. 795, 66 S.Ct. 484, 90 L.Ed. 483, rehearing denied 328 U.S. 880, 66 S.Ct. 1348, 90 L.Ed. 1647.

The Supreme Court reversed the Court of Appeals for the Fourth Circuit in an opinion by Justice Murphy (Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 920), from which Justices Frankfurter and Douglas dissented. The majority allowed recovery on the ground that the 'accident (to the soldiers) had nothing to do with the Brooks' army careers, ' and added, 337 U.S.at page 52, 69 S.Ct.at page 920, 'were the accident incident to the Brooks' service, a wholly different case would be presented. We express no opinion as to it, but we may note that only in its context do Dobson v. United States, 2 Cir., 27 F.2d 807; Bradey v. United States, 2 Cir., 151 F.2d 742, and Jefferson v. United States, D.C., 77 F.Supp. 706, have any relevance. See the similar distinction in 31 U.S.C. § 223b, 31 U.S.C.A. § 223b.'

The Tort Claims Act provides that the United States shall be liable 'in the same manner...

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