518 F.2d 1138 (4th Cir. 1975), 74-1996, Hass for Use and Benefit of United States v. U. S.

Docket Nº:74-1996.
Citation:518 F.2d 1138
Party Name:Jon Edward HASS, for the sole Use and Benefit of the UNITED STATES of America, and Jon Edward Hass, Individually, Appellant, v. UNITED STATES of America et al., Appellees.
Case Date:July 01, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1138

518 F.2d 1138 (4th Cir. 1975)

Jon Edward HASS, for the sole Use and Benefit of the UNITED

STATES of America, and Jon Edward Hass,

Individually, Appellant,

v.

UNITED STATES of America et al., Appellees.

No. 74-1996.

United States Court of Appeals, Fourth Circuit

July 1, 1975

Argued March 5, 1975.

Page 1139

Robert R. Smiley, III, Washington, D. C. (Smiley & Lear, Washington D. C., Trawick H. Stubbs, Jr., New Bern, N. C. on brief), for appellant.

Joseph W. Dean, Asst. U. S. Atty., and William C. Lawton, Raleigh (Thomas P. McNamara, U. S. Atty., on brief), for appellees.

Before WINTER, CRAVEN and RUSSELL, Circuit Judges.

CRAVEN, Circuit Judge:

On May 30, 1971, Marine First Lieutenant Jon Edward Hass was injured while riding a horse he had rented from a stable owned and operated by the Marine Corps at its Air Station in Cherry Point, North Carolina. He sued Raymond Russ and William Williams, the civilian manager and assistant manager of the stable, alleging negligence in their failure to warn him of the horse's dangerous propensity to break its gait and bolt, and also sued the United States, as their employer, under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The district court granted summary judgment to Russ and Williams on the ground that they were immune from liability, and to the United States on the ground that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precluded Hass's suit against it. We affirm.

I.

Claim Against the United States

The district court held that Hass's suit against the United States was blocked because his injuries arose out of or in the course of activity incident to his military service. In reaching this conclusion the judge relied upon his findings that (1) Hass was on active duty though in an "off-duty" status at the time of the accident; (2) the government owned and operated the stable for the benefit of servicemen like Hass; (3) the stable was organized pursuant to military order, the Marine Special Services Officer had responsibility for its management and regulation pursuant to Special Services Rules, and Hass and other servicemen were subject to disciplinary measures for violation of the rules; (4) and the government "obviously" supported the stable financially.

It is settled that

the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.

Feres, supra, at 146, 71 S.Ct. at 159. See United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949); Shaw v. United States, 448 F.2d 1240, 1241 (4th Cir. 1971) (per curiam). Hass argues, however, that the district court misinterpreted what the Supreme Court meant by

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the phrase "incident to service" and thus looked to the wrong factors. We disagree.

In Brooks, supra, the Supreme Court found no incidence to military service in injuries and death incurred by two servicemen on furlough when the private car in which they were riding on a public highway was struck by an Army truck. In Feres, supra, the Court disallowed three suits, finding incidence to service in these situations: death of an active-duty serviceman in a barracks fire allegedly caused by negligence of military personnel, injury to an active-duty serviceman from a foreign object left in his abdomen during surgery by a military doctor, and death of an active-duty serviceman due to negligent medical treatment by Army surgeons. In Brown, supra, the Court found no incidence to service in an injury incurred by a discharged veteran during treatment in a Veterans Administration hospital.

The phrase "incident to service" was given content by Justice Jackson in Feres when, after setting out the facts of the three appeals there under review, he stated: "The common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces." 340 U.S. at 138, 71 S.Ct. at 155. This common fact was sufficient for the Court to find incidence to service in all three appeals without further discussion. Id. Brooks and Brown failed the Feres test of "incidence to service" because the claimants in those cases were not on active duty, the soldiers in Brooks being on furlough and the claimant in Brown having been discharged. Cf. Alexander v. United States, 500 F.2d 1, 5 (8th Cir. 1974), cert. denied, 419 U.S. 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975).

Hass argues, however, that language in Brown and the later case of United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), has enlarged liability and that the dispositive questions are...

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