Hall v. United States, 71-1230.
| Citation | 451 F.2d 353 |
| Decision Date | 18 November 1971 |
| Docket Number | No. 71-1230.,71-1230. |
| Parties | Russell HALL, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Michael E. Mone, Boston, Mass., with whom Schneider & Reilly, Inc., Boston, Mass., was on brief, for plaintiff-appellant.
Robert M. Feinson, Atty., Dept. of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen., Herbert F. Travers, Jr., U. S. Atty. and Morton Hollander, Atty., Dept. of Justice, were on brief, for defendant-appellee.
Before ALDRICH, Chief Judge, BREITENSTEIN, Senior Circuit Judge,* and McENTEE, Circuit Judge.
Plaintiff appellant's Federal Tort Claims Act complaint for malpractice injury incurred in an army hospital while he was on active service was dismissed on the authority of Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152. Under the Feres doctrine, the government is not liable under the Act, 28 U.S.C. § 1346(b), "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159. Plaintiff seeks to distinguish, or more exactly, asks us not to follow, that case on the ground that the various rationale supporting it have been cut away, if not eliminated. We may assume that to some extent plaintiff is correct, but we think too facile his claim that there can be no valid economic reason for allowing recovery by a discharged soldier for malpractice in a veterans hospital, and denying recovery for such injury while on active duty. Congress may well wish to recognize one standard for veterans' benefits, and to provide a different package for in-service injury and disability. See 38 U.S.C. § 401 et seq.
Even more basic, we reject plaintiff's contention that Feres is inapplicable in any case where no military discipline was involved—"there must he says be a rational connection between the activity which injured plaintiff and the discipline." Even though there may have been no disciplinary element in this case, the much abused invocation of Pandora's Box will surely become appropriate if plaintiff's principle were to be established. If every injury "arising out of or * * * incident to service," 340 U.S. at 146, 71 S.Ct. at 159, must invite inquiry, not only would the difficulties of what, legally, would constitute discipline-connected be substantial, but the Armed Services would be faced with maintaining...
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In re Agent Orange Product Liability Litigation
...died when barracks he was sleeping in burned due to defective heating unit),22 nor subject to military discipline, Hall v. United States, 451 F.2d 353, 354 (CA1 1971) (no "connection between the activity which injured plaintiff and military discipline" Professor Jayson concisely and fairly ......
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Kessler v. United States
...v. United States, 473 F.2d 814 (9th Cir. 1973), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973); Hall v. United States, 451 F.2d 353 (1st Cir. 1971); Shaw v. United States, 448 F.2d 1240 (4th Cir. 1971); Buckingham v. United States, 394 F.2d 483 (4th Cir. 1968); Chambers v. Un......
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Alexander v. U.S., s. 73-1816
...In the development of the Feres rationale, this element has been the determinative factor in numerous cases. See, e.g., Hall v. United States,451 F.2d 353 (CA1, 1971); Lowe v. United States, 440 F.2d 452 (CA5), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L.Ed.2d 64 (1971); Shults v. United ......
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Watkins v. United States, Civ. A. No. 176-91.
...active duty is injured by negligent medical treatment at a military hospital, the Feres doctrine applies. See, e.g., Hall v. United States, 451 F.2d 353 (1st Cir. 1971); Lowe v. United States, 440 F.2d 452 (5th Cir. 1971); Shults v. United States, 421 F.2d 170 (5th Cir. 1969). This holds tr......