Armiger et al. Estates v. United States

• Decision Date: 11 December 1964
• Docket Number: Cong. No. 11-60.
• Parties: E. L. ARMIGER ET AL. ESTATES v. The UNITED STATES. Marjorie H. ALBRECHT, Gertrude and Donald Bein, Margaret K. Clark, Albert Desiderio, and Zebulon V. Young, Respectively, either as Personal Representative, Heir-at-Law, Next-of-Kin, and/or Next Friend, of William F. Albrecht, Henry Bein, Robert L. Clark, Albert J. Desiderio, and Jefferson B. Young, All Deceased v. The UNITED STATES.
• Court: U.S. Claims Court

339 F.2d 625 (1964)

E. L. ARMIGER ET AL. ESTATES v. The UNITED STATES.

Marjorie H. ALBRECHT, Gertrude and Donald Bein, Margaret K. Clark, Albert Desiderio, and Zebulon V. Young, Respectively, either as Personal Representative, Heir-at-Law, Next-of-Kin, and/or Next Friend, of William F. Albrecht, Henry Bein, Robert L. Clark, Albert J. Desiderio, and Jefferson B. Young, All Deceased v. The UNITED STATES.

Cong. No. 11-60.

United States Court of Claims.

December 11, 1964.

Eugene Gressman, Washington, D. C., for plaintiffs. William Howard Payne and Arthur P. Scibelli, Washington, D. C., of counsel.

Arthur E. Fay, Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

DAVIS, Judge.

This Congressional reference¹ arises out of a plane crash in South America on February 25, 1960, which resulted in the deaths, while on an official tour, of nineteen members of the United States Navy Band. Plaintiffs represent the estates of these band members.² On behalf of each member, the suit seeks to recover $50,000, the amount of commercial insurance which allegedly would have been obtained but for the failure of Navy officials to supply insurance application forms prior to the flight. Pursuant to 28 U.S.C. §§ 1492 and 2509, the House of Representatives has referred H.R. 11905, 86th Cong., 2d Sess. (1960), a bill for plaintiffs' relief.

Since at least as early as 1952, it has been an established practice to provide Navy Band members with commercial flight insurance forms prior to any band trip by air. This responsibility was assumed by the drum major, who was head of the operations department of the band. Although the forms were distributed primarily for the convenience of the individual members, their distribution was also for the benefit of the band as an entity — to prevent airport delays resulting from last-minute attempts to secure insurance. The members had come to rely on this practice.

The only time such insurance forms were not provided for an official trip was prior to the flight during which the fatal accident occurred. The unusual circumstances surrounding the South American tour, of which this flight formed one leg, provide an explanation for the slip-up. Prior trips had been planned well in advance. This one, however, was first conceived on January 25, 1960, in connection with a February visit to South America arranged for President Eisenhower. A meeting was held on January 26 to apprise the bandsmen that a tour was tentatively being planned. On or about January 28, their commander informed them that the trip was definite, but was to be kept secret. Only a few details of the flight itinerary were made known. The bandsmen were not told of the flight on which the crash occurred, since it had not yet been scheduled.

Prior to their departure from Washington to Trinidad on February 6, 1960, many band members inquired about obtaining flight or life insurance for the South American tour. Chief Petty Officer Zetty, the drum major, who regularly took care of the matter, made two different forms of commercial insurance available several days prior to that initial flight. One was a much costlier comprehensive policy covering accidental injury or death throughout the trip, for which at least two members (neither of whom died in the crash) applied. The other was typical one-way flight insurance, available only for flights with definite dates, and 68 of the 92 bandsmen chose that policy for the Trinidad flight.

Upon arrival by plane in Trinidad on February 6, the bandsmen boarded the U.S.S. Macon, which then departed for Rio de Janeiro and Buenos Aires, arriving at the latter port on February 20. On February 16, it was decided that a 19-man orchestral group of the band would fly back, on February 25, in a Navy plane from Buenos Aires to Rio de Janeiro to provide music at a reception for President Eisenhower and the President of Brazil. Until the evening before the flight, some of the bandsmen were not aware that they would be on this side-trip. Several others, who did know of the trip, requested insurance forms from Chief Petty Officer Zetty, but none were handed out. It was on this February 25th flight that the bandsmen met their deaths in a mid-air collision between the naval aircraft on which they were flying and a Brazilian plane of REAL Airlines. None of these men was covered by flight insurance on that trip.

Plaintiffs correctly acknowledge that their request for damages, based on the allegedly negligent failure of the Navy to provide insurance forms, presents no legal claim. Under the Federal Tort Claims Act, making the Federal Government responsible in tort, the United States is not liable for injuries sustained by servicemen, while on active duty, due to the negligence of others in the armed forces. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In addition, the Act does not apply to any claim arising in a foreign country. 28 U.S.C. § 2680(k) (1958); United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949).

Since this is a Congressional reference, however, we are to examine the broader "equitable" facets of plaintiffs' claim. We determine, in that connection, whether the nation owes a "debt" "based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law" (United States v. Realty Company, 163 U.S. 427, 440, 16 S.Ct. 1120, 1125, 41 L.Ed. 215 (1896)). In making that evaluation it is proper to consider, among other things, whether the claim is of a type recoverable against a private individual (Burkhardt v. United States, 84 F.Supp. 553, 113 Ct.Cl. 658, 667-668 (1949)). It is also relevant to take account of the general principles governing the particular area of the law bearing on the claim (Estate of Fairbank v. United States, Ct.Cl., Cong. No. 10-56, decided Jan. 24, 1954, slip op., pp. 7, 9-10).

We therefore take as our starting point the Federal Tort Claims Act, which makes the United States liable for "* * personal injury or death caused 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 * * *." 28 U.S.C. § 1346(b) (1958). Since this statute embodies the general principles of tort law applicable between private parties, it can suitably provide the general framework for appraising the plaintiffs' "equitable" claim. Because that claim is equitable, not legal, we can put to one side the specific statutory limitations which bar plaintiffs from recovering under the Act; those exclusions have a special purpose unrelated to general tort principles.³ Disregarding the exceptions, the issues are easily stated in the terms of the Act:

"(1) Was the alleged `act or omission of * * * the employee of the Government * * within the scope of his office or employment\'?

"(2) If so, was that act or omission `negligent or wrongful\'?"

Defendant asserts that Chief Petty Officer Zetty undertook the distribution of flight insurance forms in a purely personal capacity, rather than as part of his Navy duties.⁴ The Trial Commissioner seemed to voice a similar position at one point in his findings. Report of Commissioner, filed May 28, 1963, finding 16(a) (the drum major acted "on his own initiative and in a purely personal capacity outside of his prescribed duties"). We think, however, that the activities in question were well within the scope of the drum major's employment, as that term of art has been judicially construed.

Under 28 U.S.C. § 2671 (1958), "`Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty." The courts have not attempted to draw any precise line between the two terms. See United States v. Hainline, 315 F.2d 153 (C.A. 10), cert. denied, 375 U.S. 895, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963); O'Connell v. United States, 110 F.Supp. 612, 614 (E.D.Wash., 1953). Both have been frequently applied in litigation involving soldiers travelling under orders in their personal automobiles from one post to another, as well as to comparable situations. E.g., Cooner v. United States, 276 F.2d 220 (C.A. 4, 1960), summarizing prior case law in the area. For our purposes, we need point out only that the strictest view requires that the allegedly negligent serviceman be carrying out an authorized act rather than a detour or frolic, e. g., Witt v. United States, 319 F.2d 704, 709 (C.A. 9, 1963), and also that the act be part of his normal, regular, everyday duties over which his superiors may exercise control. Chapin v. United States, 258 F.2d 465, 468-470 (C.A. 9, 1958), cert. denied, 359 U.S. 924, 79 S.Ct. 607, 3 L.Ed.2d 627 (1959); Cooner v. United States, supra, 276 F.2d at 238-240 (dissenting opinion).⁵

Even under this stricter construction, Zetty's conduct in the present case lay within the scope of his employment. Under that more limited view, the act must first be part of the routine duties of the Government employee.⁶ Zetty, who assumed responsibility for the distribution of insurance forms prior to each flight, received no personal gain. As head of the operations department of the band, his duties included assuring that personnel was assigned for each engagement, that the required gear or instruments were provided, and that all details necessary for a successful engagement were taken care of. Finding 18(a) (emphasis added). Furthermore, though Zetty was then unaware of the provision, Article C-11112 of the Bureau of Naval Personnel Manual authorizes the commanding officer of any unit having cognizance over Department of Defense aircraft departures to make...