Curnutt v. Holk

• Decision Date: 12 November 1964
• Citation: 41 Cal.Rptr. 174,230 Cal.App.2d 580
• Court: California Court of Appeals Court of Appeals
• Parties: James L. CURNUTT, Plaintiff and Appellant, v. Herbert C. HOLK, Defendant and Respondent. Civ. 27195.

Page 174

41 Cal.Rptr. 174

230 Cal.App.2d 580

James L. CURNUTT, Plaintiff and Appellant, v. Herbert C. HOLK, Defendant and Respondent.

Civ. 27195.

District Court of Appeal, Second District, Division 3, California.

Nov. 12, 1964.

Paul S. Garstang, Santa Maria, for appellant.

Parker, Stanbury, Reese & McGee, and Daren T. Johnson, Los Angeles, for respondent.

NOURSE, Justice pro tem.

Plaintiff appeals from a judgment dismissing his action after a general demurrer to his first amended complaint had been sustained without leave to amend. The action is one to cover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant.

In substance the facts alleged in plaintiff's first amended complaint are: ¹ On October 8, 1959, the day of the accident in question, plaintiff was a Lieutenant Colonel and defendant was a Captain in the United States Air Force. Both plaintiff and defendant were on active duty at the Vandenberg Air Force Base, Santa Barbara County, California, a military reservation, jurisdiction over which had been ceded by this State to the United States. ² On that date the Commander of the base ordered six officers, including plaintiff and defendant, to kill deer which were a hazard to aircraft in the vicinity of the base runway. The Base Commander ordered that no rifles should be carried on the hunt but only shotguns with rifled lead slugs should be used, that no shooter should fire unless he had a back-up man behind him observing the surrounding terrain for any potential hazard, and that the hunt should be conducted in a safe manner. The officers ordered to conduct the exercise were divided into three groups, two officers being assigned to a motor vehicle, one officer driving and the other in the back seat in order to comply with the Base Commander's order. The three vehicles proceeded along the edge of the runway in heavy brush. After they had proceeded approximately half the length of the runway the vehicle in which the defendant was riding encountered mechanical difficulties. Plaintiff told the occupants of the stalled vehicle to leave it and mount his vehicle and the defendant and the other occupant of his vehicle entered the rear of the vehicle driven by the plaintiff. After driving for a few minutes plaintiff decided to cross the runway and while waiting for clearance from the control tower the defendant left the rear of the vehicle and entered the cab in the seat beside the plaintiff. He was then carrying a rifle and a shotgun. He placed the shotgun between the parties alongside of plaintiff's shotgun with the barrels leaning back against the seat and held the rifle between his knees. Plaintiff then proceeded to drive across the runway. At this time it was dark and the headlights of the vehicle were on. While proceeding across the runway plaintiff and defendant saw a deer 200 or 300 yards ahead in the beam of the headlights and immediately thereafter saw three other deer about 40 yards ahead in the heavy brush alongside the runway. Plaintiff stopped the vehicle and defendant started to leave the vehicle with his rifle. Plaintiff reminded him that a rifle could not be used. Defendant then reached for his shotgun while still holding the rifle with the result that a large lead slug entered plaintiff's right arm and he was permanently crippled. ³

The question presented on this appeal: Is one member of the Armed Forces of the United States liable to another member of the Armed Forces for injuries caused by his negligence while both members were engaged in carrying out a lawful order of their superior officer?

It is established that a member of the Armed Forces may not be held liable to a civilian for injuries resulting from his act in carrying out the orders of a superior unless the order is not only illegal but its illegality would be at once palpable to one possessing the knowledge which is to be expected of him who obeys it. (Armstrong v. Sengo, 17 Cal.App.2d 300, 307, 61 P.2d 1188; Herlithy v. Donohue, 52 Mont. 601, 161 P. 164, 167 L.R.A. 1917B 702; Neu v. McCarthy, 309 Mass. 17, 33 N.E.2d 570, 573-574, 133 A.L.R. 1291; 6 C.J.S. Army and Navy § 37, p. 420; 36 Am.Jur. 264, § 116; Restatement of the Law, Torts, Vol. 1, p. 343, 344.) The authorities we have cited are not decisive of the question here before us for none of them concerned the rights and liabilities of members of the Armed Forces inter sese nor have we been cited to or found any decisions deciding that question. It is clear, however, that the rights and liabilities of members of the Armed Forces would be the same as that affecting civilians if the order under which they were acting was not only unlawful but its illegality was at once palpable to the subordinates carrying out the order.

It is appe...