Johnson v. U.S., 79-1485

• Decision Date: 17 November 1980
• Docket Number: No. 79-1485,79-1485
• Citation: 631 F.2d 34
• Parties: Nora Faye JOHNSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 34

631 F.2d 34

Nora Faye JOHNSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 79-1485.

United States Court of Appeals Fifth Circuit.

Nov. 17, 1980.

Gary B. Tullis, Charles H. Murchison, Jacksonville, Fla., for plaintiff-appellant.

Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges.

HENDERSON, Circuit Judge.

This is one of three suits stemming from the homicidal rampage of Sgt. Jimmy Ray Johnson. On this appeal we hold that Mrs. Johnson may not recover damages under the Federal Tort Claims Act for her husband's death.

In 1970 Sgt. Johnson was assigned to Fort Stewart, Georgia. In September of that year, Major Merideth, a psychiatrist at Fort Stewart, hospitalized him for a possible mental illness, and concluded he was suffering from a severe psychosis accompanied by homicidal and suicidal tendencies. Early in January, 1971 the sergeant was jailed on a warrant issued after he assaulted his wife. He was released on condition that he re-enter the post hospital, and he did so on January 11, 1971. Major Merideth discharged the sergeant on January 21, 1971, even though he knew of his violent tendencies.

On January 25, 1971, Johnson requested leave, which was denied by his captain for fear he would cause more trouble. Unfortunately, the battalion executive officer overruled the captain and granted the leave. On January 27, 1971, Sgt. Johnson went to the home of his wife's brother in Waynesville, Georgia, approximately 80 miles from Fort Stewart. When he arrived he killed his brother-in-law, Carroll Johns, shot his wife and then killed himself. ¹

Carroll Johns' widow brought suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671 et seq. to recover for the wrongful death of her husband. Mrs. Johns alleged that the government was negligent in releasing Sgt. Johnson from the hospital and granting him leave. A bench trial resulted in a judgment in her favor. Johns v. United States, Civ. Action No. 769 (S.D. Ga., August 6, 1973). Meanwhile, Mrs. Johnson filed two suits against the government, both under the FTCA; one for her own injuries and one for the wrongful death of her husband. In the first appeal of these cases, a panel of this court held that the judgment in Johns was res judicata of the negligence issue in Mrs. Johnson's actions (i. e., the government was negligent in releasing Sgt. Johnson). Johnson v. United States, 576 F.2d 606 (5th Cir. 1978). The United States accordingly stipulated negligence and that this negligence was the proximate cause of the shootings. Mrs. Johnson now appeals from the subsequent order dismissing the wrongful death action. ² We affirm.

The FTCA provides that the United States shall be liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C.A. § 2674. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Court enunciated what has come to be known as the Feres doctrine, holding that the United States "is not liable under the Federal Tort Claims Act 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, 95 L.Ed. at 161. The Court, disposing of three cases, held there could be no recovery for injuries resulting from a barracks fire or the negligence of army surgeons.

The Supreme Court affirmed the vitality of Feres in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 52 L.Ed.2d 665, 97 S.Ct. 2054 (1977). Stencel grew out of injuries sustained when a National Guardsman's life-support system malfunctioned during a flight emergency. The airman sued the manufacturer, Stencel, which sought indemnification against the United States for damages it might incur as a result of the incident. In determining whether the "well-established doctrine of Feres " controlled the case, the Court looked to its rationale, 431 U.S. at 670, 97 S.Ct. at 2057, 52 L.Ed.2d at 669, and found that three considerations explained the decision: First, "(t)he relationship between the Government and members of its Armed Forces is 'distinctively federal in character,' " 431 U.S. at 671, 97 S.Ct. at 2058, 52 L.Ed. at 670 (quoting Feres), and therefore should not be governed by state law (as are FTCA claims). Second, veterans benefits are the generous but exclusive remedy for injured soldiers. Third, in some cases immunity is necessary because of "(t)he peculiar and special relationship of a soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty." 431 U.S. at 671-672, 97 S.Ct. at 2058, 52 L.Ed.2d at 670 (quoting Brown).

Viewing our situation in the light of Feres, as elucidated in Stencel, we believe that an FTCA recovery is barred. To the extent Sgt. Johnson's death is attributable to release from the hospital, the courts have consistently followed Feres and held that the medical care given servicemen in army hospitals is so entwined with the military relationship that a serviceman cannot bring an action under the FTCA for the negligent provision thereof. Veillette v. United States, 615 F.2d 505 (9th Cir. 1980); Henning v. United States, 446 F.2d 774 (3d Cir. 1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 676, 30 L.Ed.2d 664 (1972); Shults v. United States, 421 F.2d 170 (5th Cir. 1969). But cf. Bankston v. United States, 480 F.2d 495 (5th Cir. 1973) (jury issue on discharge at time of negligence). As to the negligence of the executive officer in granting Sgt. Johnson leave, there is surely no parallel in civilian life. To second-guess the decisions of officers in granting leave would interfere with "the peculiar and special relationship of the soldier to his superiors," Brown, 348 U.S. at 112, 75 S.Ct. at 142, 99 L.Ed. at 143, and "visit the Government with novel and unprecedented liabilities," Feres, 340 U.S. at 142, 71 S.Ct. at 157, 95 L.Ed. at 159.

Mrs. Johnson insists that there are situations where the government is responsible in an FTCA action for injuries incurred by a serviceman. While her contention is undoubtedly true, it will not avail her in this case. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), the Court held there was an FTCA action for injuries sustained by two off-duty soldiers who were driving in a private vehicle on a public highway when they...