Chambers v. United States

Decision Date03 March 1966
Docket NumberNo. 18021.,18021.
PartiesJames CHAMBERS and Lydia Chambers, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Paul C. Zempel, St. Louis, Mo., for appellants.

Harold F. Reis, Executive Asst. to Atty. Gen., Department of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Dept. of Justice, Morton Hollander and Robert V. Zener, Attorneys, Dept. of Justice, Washington, D. C., and F. Russell Millin, U. S. Atty., Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge.

MEHAFFY, Circuit Judge.

Plaintiffs James and Lydia Chambers brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., seeking damages for the death of their son, Airman Third Class John E. Chambers.

The complaint alleged that on the date of his death, decedent was an enlisted man in the United States Air Force assigned to Whiteman Air Force Base in Johnson County, Missouri; that the United States maintained and operated a base swimming pool for its personnel; and that while swimming in the base pool on August 17, 1963, decedent drowned or died of a blow on the head, or a combination of both.

The Government filed a pleading entitled "Answer and/or Motion to Dismiss with Suggestions in Support," admitting that the Government was engaged in maintaining and training military personnel and in connection therewith maintained and operated the Whiteman Air Force Base, including the base swimming pool. The Government further admitted that on the date of his death, decedent was an enlisted man assigned to Whiteman Air Force Base and that on August 17, 1963, while engaged in swimming in said pool, he drowned. The Government denied that decedent received a blow on his head.

Plaintiffs alleged numerous acts of negligence, including failure to keep qualified life guards at the pool, failure to provide adequate life saving equipment, failure to instruct life guards properly in life saving methods, and in general failure to provide adequate protection for decedent while he was swimming in said pool.

The Government denied all the allegations of negligence and moved to dismiss the complaint on the grounds that plaintiffs had no claim under the Tort Claims Act.

The trial court dismissed the Government's motion without prejudice because at that juncture it did not appear from the pleadings whether or not the decedent's activities at the time of his death were incident to his military service.

Subsequently, the Government resubmitted its motion to dismiss attaching in affidavit form a statement of an Assistant United States Attorney based upon information furnished to him by other government agents, asserting that decedent was considered a capable swimmer who was training for underwater swimming activities in an intersquadron swimming meet, and that he was known to practice physical endurance in underwater swimming by using a method of breathing called "hyperventilation." The decedent was considered as being present and accounted for and subject to the command of the base authorities. He was not in furlough status. Also submitted was the certificate of Colonel R. J. Pugh, Director of Administrative Services of the Air Force and official custodian of the records of Air Force personnel, avowing that the records disclose that decedent was an enlisted man on continuous active service in the Air Force until his death on August 17, 1963. Additionally, the Government submitted the affidavit of First Lieutenant Hirum E. West, acting commander of decedent's squadron, to the effect that decedent was present and accounted for on the day of his death, and that decedent was immediately subject to the command of affiant and other of his military superiors while on the base, including that time decedent was in the base pool immediately preceding his death.

The trial court, in a memorandum and order sustaining defendant's motion, noted:

"From August 27, 1964 to November 27, 1964, plaintiffs sought and obtained various extensions of time to respond with suggestions in opposition to defendant\'s renewed Motion to Dismiss. The time granted in the last continuing order has now expired, and the plaintiffs still have not responded. We can only conclude that plaintiffs are unable to state controverting facts, or a tenable theory of law to rebut the defendant\'s motion and its supporting affidavits."

The trial court concluded that the uncontroverted affidavit established that, at the time of his death, decedent was on active duty status with the United States Air Force and subject to commands of his military superiors; that decedent's swimming activity was performed while on active duty, and sufficiently related to military service to preclude an action under the Federal Tort Claims Act. The trial court considered defendant's motion as a motion for summary judgment and sustained it. We affirm.

The sole issue here is whether the District Court was warranted, after considering the record before it, in dismissing plaintiffs' complaint and entering summary judgment for the Government under Rule 56 of the Federal Rules of Civil Procedure.

Plaintiffs have challenged the documents filed by the Government in support of its motion. We will ignore them in our initial discussion because we think the Government would have been entitled to summary judgment in this case even if no affidavit or supporting evidence had been offered in support of its motion.

The Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are incident to service." Feres also established that a serviceman cannot recover for injuries incident to service even though at the time he is not engaged in the performance of military duties.1 The complaint in the instant case does not allege or even suggest any fact that would take it outside the Feres rule and permit recovery.

We have consistently held that summary judgment is appropriate where, had the case gone to trial, a directed verdict would have been required. Wolf v. Schaben, 272 F.2d 737 (8th Cir. 1959); Rubenstein v. Dr. Pepper Co., 228 F.2d 528, 532-533 (8th Cir. 1955); Durasteel v. Great Lakes Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953).

It is not necessary for the defending party to support his motion for summary judgment by affidavits. Rule 56(b) Fed.R.Civ.P.

The purpose of our summary judgment rule is to expeditiously determine cases without necessity for formal trial where there is no substantial issue of fact and is in the nature of an inquiry to determine whether genuine issues of fact exist. If no factual dispute exists and the complaint does not state a cause of action, it should be disposed of by summary judgment rather than exposing the litigants to unnecessary delay, work and expense in going to trial when the trial judge would be bound to direct a verdict in movant's favor after all evidence is adduced.

Plaintiffs allege that Airman Chambers met his death while in service at the Whiteman Air Force Base when engaged in swimming in a pool that was a part of said base due to the alleged negligence of the Government. These facts do not constitute a cause of action under the Feres rule.

The Feres case has been consistently followed. In United States v. United Services Auto. Ass'n., 238 F.2d 364 (8th Cir. 1956), this court, speaking through Judge Van Oosterhout, discusses Feres at length and the reasons the Supreme Court there assigned for denying a serviceman relief under the Tort Claims Act. Judge Van Oosterhout noted there that Feres was decided by a unanimous court and its rule had been steadfastly adhered to.

The statement of the Assistant United State Attorney, based as it is upon information furnished by others, obviously does not comply with Rule 56 (e) and does not constitute admissible evidence. It is, therefore, not entitled to and will be given no consideration here. Hoston v. J. R. Watkins Co., 300 F.2d 869, 870 (9th Cir. 1962).

The certificate of Colonel R. J. Pugh to the effect that Air Force personnel records indicated that Airman Chambers was an enlisted man and in active service until his death need not be considered as there is other evidence to the same effect in the pleadings as well as in the affidavit of Lieutenant West.

Plaintiffs admit that the affidavit of Lieutenant West was in proper form and that in the Government's second motion it was alleged that Airman Chambers died in the swimming pool "while engaged in activities which were incident to his military service." The plaintiffs challenge this affidavit, asserting that it is devoted entirely to legal and factual conclusions not based on...

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