Chambers v. United States, No. 18021.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: VAN OOSTERHOUT and MEHAFFY, Circuit , and VAN PELT
• Citation: 357 F.2d 224
• Parties: James CHAMBERS and Lydia Chambers, Appellants, v. UNITED STATES of America, Appellee.
• Docket Number: No. 18021.
• Decision Date: 03 March 1966

357 F.2d 224 (1966)

James CHAMBERS and Lydia Chambers, Appellants,
v.
UNITED STATES of America, Appellee.

No. 18021.

United States Court of Appeals Eighth Circuit.

March 3, 1966.

357 F.2d 225

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,

357 F.2d 226

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

357 F.2d 227

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...