Megge v. United States, 15856.
| Decision Date | 14 April 1965 |
| Docket Number | No. 15856.,15856. |
| Parties | Mary L. MEGGE et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
George L. Downing, Detroit, Mich. (Kelman, Loria, Downing & Craig, Detroit, Mich., on the brief), for plaintiffs-appellants.
John W. Douglas, Asst. Atty. Gen., Dept. of Justice, Civil Div., Washington, D. C. (Sherman L. Cohn, Kathryn H. Baldwin, Attys., Dept. of Justice, Washington, D. C., Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for defendant-appellee.
Before O'SULLIVAN, PHILLIPS and EDWARDS, Circuit Judges.
This suit was brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b) and 2671-2680. The question presented is whether a right of action lies under this statute for personal injuries and death resulting from an automobile accident allegedly caused by the negligence of an intoxicated Air Force sergeant who, while already intoxicated, was sold liquor at the bar of a noncommissioned officers' club at the Selfridge Air Force Base in Michigan.
Plaintiffs contend that the United States is liable under the Federal Tort Claims Act because of the provisions of the Michigan dramshop act, which creates a cause of action in favor of a person injured by reason of the unlawful sale of intoxicants to an already intoxicated person. M.S.A. §§ 18.993, 18.1000. The district court sustained the Government's motion to dismiss, and plaintiffs have appealed.
Under the averments of the complaint, a noncommissioned officers' club was operated on the premises of the Air Force Base for the use and entertainment of Air Force personnel and their families and friends, where beer and other intoxicating liquors were sold. It is charged that on July 6, 1961, beer and other intoxicating liquors were sold "negligently, wrongfully and unlawfully" to the sergeant in question, in large quantities, and that such sales were continued after he had become intoxicated. Thereafter, while still in an intoxicated condition, the sergeant drove his 1960 Ford automobile off the Air Force Base onto the public highways of Michigan, crossed the center line of the highway and collided head on with the 1959 Volkswagen in which appellants were riding, proximately causing severe injuries and damages and the death of a minor child. It is not contended that the sergeant was acting in line of duty at the time of the accident.
Under 28 U.S.C. § 1346(b), the jurisdiction of district courts under the Federal Tort Claims Act is limited to "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Under 28 U.S.C. § 2671, "employee of the government" is defined to include members of the military or naval forces of the United States, and with respect to them the term "acting within the scope of his office or employment" is defined to mean "acting in line of duty."
There was no cause of action at common law against a person selling or dispensing liquor in favor of those injured because of the intoxication of the person drinking the liquor. It was not a tort at common law to sell or give liquor to an "able-bodied man." State for Use of Joyce v. Hatfield, 197 Md. 249, 254-255, 78 A.2d 754, 756; Demge v. Feierstein, 222 Wis. 199, 268 N.W. 210; Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 3 L.R.A. 327; 30 Am.Jur., Intoxicating Liquors, § 520, p. 821; 48 C.J.S. Intoxicating Liquors § 430, pp. 716, 717, Annot. 130 A.L.R. 352, 357, 75 A.L.R. 2d 833, 839. In State for Use of Joyce v. Hatfield, supra, the Supreme Court of Maryland said:
78 A.2d at 756.
Appellants' cause of action is based upon the Michigan dramshop act which creates a liability unknown to the common law by providing:
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