Fidelity-Phenix Fire Ins. Co. v. United States, 30860

• Decision Date: 06 April 1953
• Docket Number: 31451-31454.,31000,31045,31033,No. 30860,30860
• Court: U.S. District Court — Northern District of California
• Parties: FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK v. UNITED STATES et al. PREFERRED INS. CO. et al. v. UNITED STATES. WHIPPLE v. UNITED STATES et al. STROPECK v. UNITED STATES et al. SONOMA COUNTY FARMERS' MUT. FIRE INS. CO. v. UNITED STATES. GOVERNMENT EMPLOYEES INS. CO. v. UNITED STATES. ST. LOUIS FIRE & MARINE INS. CO. v. UNITED STATES. SECURITY INS. CO. OF NEW HAVEN et al. v. UNITED STATES.

111 F. Supp. 899

FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK v. UNITED STATES et al.

PREFERRED INS. CO. et al. v. UNITED STATES.

WHIPPLE v. UNITED STATES et al.

STROPECK v. UNITED STATES et al.

SONOMA COUNTY FARMERS' MUT. FIRE INS. CO. v. UNITED STATES.

GOVERNMENT EMPLOYEES INS. CO. v. UNITED STATES.

ST. LOUIS FIRE & MARINE INS. CO. v. UNITED STATES.

SECURITY INS. CO. OF NEW HAVEN et al. v. UNITED STATES.

Nos. 30860, 31000, 31033, 31045, 31451-31454.

United States District Court, N. D. California, S. D.

April 6, 1953.

Kruger & Baker, San Francisco, Cal., for Fidelity-Phenix Fire Ins. Co. of New York.

William H. Levit and Long & Levit, Los Angeles, Cal., for Preferred Ins. Co. and others.

Cresswell & Davis, Oakland, Cal., for Albert G. Whipple and George Stropeck.

George W. Murphy and Murphy, Brownscombe & Gleason, Santa Rosa, Cal., for

Sonoma County Farmers' Mut. Fire Ins. Co.

Cranson L. Hopkins and Alfred W. Newman, Vallejo, Cal., for Government Employees Ins. Co., St. Louis Fire & Marine Ins. Co., Security Ins. Co. of New Haven, a corporation and others.

Chauncey Tramutolo, U. S. Atty., and Gerald B. Hansen, Asst. U. S. Atty., San Francisco, Cal., for United States.

GOODMAN, District Judge.

These eight consolidated actions under the Federal Tort Claims Act, 60 Stat. 812, 28 U.S.C. §§ 1346(b), 2671-80 are the aftermath of the tragic crash of an airforce B-29 aircraft at Fairfield-Suisun Air Force Base, California, the night of August 5, 1950. Within a few minutes after the crash, the B-29 exploded, scattering flaming debris over a wide area. The brunt of the explosion struck a trailer park on the base occupied by airforce personnel and their families. A number of the residents of the trailer park were injured, and many of the trailers and several automobiles parked alongside were destroyed or damaged. Several buildings on the base, as well as residences and buildings just outside the base were also damaged.

Much of this property was insured. The insurance companies, having paid the resulting claims, have brought these actions as subrogees. Recovery is sought for damage to a number of house trailers and their contents and three automobiles all belonging to enlisted men and their wives, for damage to the household furniture and personal effects of an enlisted man and his wife quartered in a government apartment on the base, and for damage to private residences and buildings off the base. The damage is alleged to have been caused by the negligence of the crew of the B-29. The Government has now moved to dismiss the complaints in so far as they seek recovery for the property losses of the airforce personnel.

The Government contends that the holding of the Supreme Court in Feres v. United States, 1950, 340 U.S. 135, 71 S. Ct. 153, 95 L.Ed. 152 that suits by servicemen for injuries which "arise out of or are in the course of activity incident to service" are not maintainable under the Federal Tort Claims Act, compels the granting of the motions. Although the Feres case denied to servicemen only the right to sue under the Tort Claims Act for personal injuries incident to their service, all the parties agree, and so does the court, that the same rule should apply to suits by servicemen for property losses. The parties are in disagreement as to the proper application of the rule to the stipulated facts in this case.

The stipulated facts concerning the nature of the trailer park, where the bulk of the property damage occurred, may be briefly summarized. The trailer park facilities were provided by the airforce for the use of airforce personnel and their families when personnel, who had such trailers, were assigned to the base. Airforce personnel were not required to live in the trailer park or on the base. But, there was insufficient Government housing on the base to accommodate all personnel, and the surrounding area was a critical housing area. Assignment and termination of assignment of trailer spaces in the park were made by the Base Billeting Officer, upon application and according to certain priorities. While trailers were assigned to the park, they were placed permanently in position by such means as jacks. The airforce provided toilet facilities and utilities for the park. Airforce installation personnel installed and maintained the airforce facilities. A fee was charged by the airforce for the use of the trailer space and for the utilities furnished. The occupants of the park received a "quarters allowance" in lieu of Government housing. The administration of the park was governed by airforce regulations and the park was under the jurisdiction of the base military police.

It has also been stipulated that the duties of the airforce personnel whose property was damaged did not involve any phase of the maintenance, servicing, loading, operation, dispatch or control over the plane which crashed.

Upon these facts, the plaintiffs assert that the property losses of the airforce personnel were not "incident to their service." The Government urges that the losses were "incident to service." Moreover, the Government contends, plaintiffs are estopped to deny that this is so.¹

It is unnecessary to resolve the asserted issue of estoppel for, in my opinion, the entire property loss of the airforce personnel was incident to their service and is not cognizable under the Tort Claims Act.

Plaintiffs have urged that the question of the incidence of a property loss to military service cannot necessarily be approached in the same manner as the question of the incidence of personal injuries to military service. I agree that this is so. For the key to the proper application of the term "incident to service" to property losses is the Military Personnel Claims Act of 1945. This act has no bearing on claims for personal injuries.

The Military Personnel Claims Act of 1945, 59 Stat. 225, 31 U.S.C.A. § 222c, was passed for the express purpose of providing a "single" statute for the settlement of claims of military personnel for the loss of their personal property incurred while in the service, House Report 237, Senate Report 276, 79th Congress, 1st Session, 1945 U.S.Code Congressional Service, p. 715. The Act was the culmination of years of effort to secure for military personnel a comprehensive system of compensation for loss of personal property in the service. Through the years the Congress had authorized the reimbursement of servicemen for certain property losses.²

These piecemeal enactments did not afford an adequate compensation system for personal property losses of servicemen. Many meritorious claims did not fall within the limited scope of these statutes. Noting that morale was adversely affected, the War Department proposed a single comprehensive system for the reimbursement of military personnel and civilian employees of the War Department for all property losses incident to their service. This proposal was part of a larger plan whereby the provisions for the settlement, in a substantially uniform manner, of all claims incident to the activities of the War Department, would be consolidated into three statutes. On April 22, 1943, the Congress began to implement this plan by enacting the Foreign Claims Act, 57 Stat. 66, 31 U.S.C.A. § 224d et seq. This Act provided a means for the settlement of claims for damage caused by the armed forces in foreign countries. On July 3, 1943, the Congress passed the Military Claims Act, 57 Stat. 372. This Act consolidated all the existing statutory provisions for the administrative settlement of claims arising out of the activities of the armed forces other than foreign claims and claims of military personnel. The Military Personnel Claims Act of 1945, which embodied the War Department's proposal for compensating military personnel for property losses, was the final step in the execution of the tripartite plan. House Report 237, Senate Report 276, 79th Congress, 1st Session, 1945 U.S.Code Congressional Service, p. 715.

The very next year, Congress passed the Federal Tort Claims Act, 60 Stat. 812. Section 424 of the Tort Claims Act repealed all previous statutes, which authorized the administrative adjustment of claims for property losses due to the negligence of government employees, if such claims were cognizable under the Tort Claims Act. The Military Claims Act of 1943, which provided for the settlement of claims of persons, other than military personnel, arising out of the activities of the armed forces in the United States, was one of the statutes specifically repealed pro tanto. No mention was made either of the Foreign Claims Act of 1943 or of the Military Personnel Claims Act, the other two statutes in the new tripartite system for the settlement of claims incident to the activities of the armed forces. It is inconceivable that these two statutes were overlooked by the Congress. The absence of any reference to the Military Personnel Claims Act in this repeal provision of the Tort Claims Act is a persuasive indication that the Congress did not consider the claims of military personnel, compensable under the Military Personnel Claims Act, to be cognizable under the Tort Claims Act. It was manifestly the intent of the Congress that the Military Personnel Claims Act should remain as the single comprehensive remedy for property losses of military personnel incident to their service.³

Since property losses of military personnel incident to their service are compensable exclusively under the Military Personnel Claims Act, that Act must be the guide in determining what losses are "incident to their service". General language was employed in the Military Personnel Claims Act to effectuate its comprehensive purpose. The Act provided that "the Secretary of War,⁴ and such other officer or officers as he may designate for such purposes and under such regulations as he may prescribe, are hereby authorized to consider, ascertain, adjust, determine, settle, and pay any claim...