Callaway v. Garber, 16889.

• Decision Date: 21 April 1961
• Docket Number: No. 16889.,16889.
• Citation: 289 F.2d 171
• Parties: Mrs. Robert F. CALLAWAY, individually, Mrs. Robert F. Callaway, as Mother and Next Friend of her Minor Children, Robert F. Callaway, Jr., Sandra K. Callaway and Richard E. Callaway, Appellants, v. W. L. GARBER and United States of America, Appellees, Stanley P. SORENSON, as Administrator of the Estate of Robert F. Callaway, Deceased, Appellant, v. W. L. GARBER and United States of America, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

289 F.2d 171 (1961)

Mrs. Robert F. CALLAWAY, individually, Mrs. Robert F. Callaway, as Mother and Next Friend of her Minor Children, Robert F. Callaway, Jr., Sandra K. Callaway and Richard E. Callaway, Appellants, v. W. L. GARBER and United States of America, Appellees, Stanley P. SORENSON, as Administrator of the Estate of Robert F. Callaway, Deceased, Appellant, v. W. L. GARBER and United States of America, Appellees.

No. 16889.

United States Court of Appeals Ninth Circuit.

April 21, 1961.

Myles J. Thomas, Helena, Mont., for appellants.

George Cochran Doub, Asst. Atty. Gen., Morton Hollander and Mark R. Joelson, Attys. for the Dept. of Justice, Washington, D. C., Krest Cyr, U. S. Atty., Butte, Mont., for appellees.

Before CHAMBERS, ORR and HAMLIN, Circuit Judges.

ORR, Circuit Judge.

On May 3, 1957, W. L. Garber, a recruiting officer in the United States Navy, while operating his car on Navy business on a highway in Broadwater County, Montana, negligently drove said car into the rear-end of another auto which was owned and operated by Sergeant Carl J. Lange of the United States Air Force. Riding with Sergeant Lange at the time were two other Air Force sergeants, Robert F. Callaway and George F. Strong. The impact of the collision forced Sergeant Lange's car into the opposite lane where it collided with an auto being driven by one Angus McArthur, a civilian. Sergeant Callaway received injuries from which he died about one hour after the accident.

At the time of the accident the three Air Force sergeants in Lange's car were traveling from Ellsworth Air Force Base in South Dakota to Seattle, Washington, to attend a special school at the Boeing Aircraft Plant in Seattle for six weeks. Their orders required them to leave South Dakota on May 2nd and report in Seattle on May 8th, but no means of transportation was provided or specified and they were free to do anything they wished and travel in any manner they desired so long as they reported in Seattle on May 8th. At the end of the six weeks of schooling they were to return to Ellsworth Air Force Base in South Dakota, and during the entire period they were to remain assigned to that base and subject to the orders of its Commander. The purpose of their journey was to receive training with respect to a new model of aircraft which was to be received at Ellsworth Air Force Base.

Mrs. Robert F. Callaway, individually and as mother and next friend of her minor children, brought a suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., and against W. L. Garber, alleging that Sergeant Callaway's death had been caused by Garber's negligent driving while he was within the scope of his employment for the Government. Stanley P. Sorenson, administrator of Sergeant Callaway's estate, brought a similar suit. The United States District Court for the District of Montana entered judgment for the defendants in both suits, holding that Sergeant Callaway was acting in the line of duty at the time he was fatally injured and that the doctrine of Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, therefore controls the case. Appellants seek review of these findings.

The Feres case, supra, was actually a consolidation of three different suits by or on behalf of servicemen injured while on active duty and as a result of negligence of other servicemen; one suit involved a soldier who had perished by fire while in his barracks, and the other two involved soldiers who had suffered injuries while receiving treatment from army surgeons. The Supreme Court, in holding for the Government, promulgated a rule 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." 340 U.S. at page 146, 71 S.Ct. at page 159. In reaching this decision the Court mentioned the following considerations: (1) The Tort Claims Act was designed to extend a remedy to those who had previously been without one, and this does not include servicemen, who are allowed compensation for service injuries under several special statutes. In addition the fact that Congress failed to provide any adjustment between those special remedies and the Tort Claims Act indicates that it did not intend both to apply at once. These considerations alone would not seem to be determinative since in Brooks v. United States, 1949, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200, and in United States v. Brown, 1954, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139, an injured serviceman and a veteran were allowed to recover under the Tort Claims Act even though they were covered by special injury compensation statutes. (2) Under the Tort Claims Act the United States is only liable to the extent a private individual would be liable under like circumstances.¹ Considering the unique status of the wronged and the wrongdoer in these service injury cases as part of the circumstances, there is no analogous private situation and thus no analogous private liability to apply. (3) The Tort Claims Act rests liability on the law of the place where the act or omission occurred, and it would be irrational to have this rule govern servicemen on active duty since they have no power to choose or determine where they will be at any given time. It is arguable that this consideration is not present in the instant case since Sergeant Callaway was free to get to Seattle in whatever way and by whatever route he chose.

The Trial Court held that this case falls within the rule in Feres v. United States that 340 U.S. 135, 71 S.Ct. 159 "the Government is not liable under the Federal Tort Claims Act...