Parker v. United States, Civ. A. No. CA-5-76-58.

• Decision Date: 05 October 1977
• Docket Number: Civ. A. No. CA-5-76-58.
• Parties: Janet Alene PARKER, Surviving Widow, Individually, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Texas

437 F. Supp. 1039

Janet Alene PARKER, Surviving Widow, Individually, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. CA-5-76-58.

United States District Court, N. D. Texas, Lubbock Division.

October 5, 1977.

Claude W. Harland, Bowers, Cotten & Harland, Lubbock, Tex., for plaintiffs.

Kenneth J. Mighell, U. S. Atty., Dallas, Tex., Robert B. Wilson, Asst. U. S. Atty., Lubbock, Tex., for defendant.

ORDER

WOODWARD, Chief Judge.

The court has received and considered the motion of defendant, United States of America, for summary judgment. After considering the briefs of the parties and various affidavits submitted in the record and oral argument, the court concludes that the motion should be GRANTED.

The question presented is whether the death suffered by plaintiffs' decedent was caused by activity incident to military service.

The following facts of the accident and resultant death of plaintiffs' decedent are uncontradicted. By affidavit, 1 Sgt. Leonard Judd noted that:

"On 28 August 1974, Specialist Five Parker had requested permission to have time off from after normal duty hours on that day until the following Monday to enable him to go home to pack his household goods for eventual shipment to Lovington, New Mexico. To the best of my recollection Specialist Five Parker was driving a vehicle which had apparently been borrowed from a Mr. Neel. Specialist Five Parker's request to accomplish this task was approved by me. This time off was considered to be a pass and not ordinary leave. At the time of the accident, Specialist Five Parker was in a military fatigue uniform."

Judd further observed that Parker was on active duty at the time of the accident, yet was proceeding to his home in McGregor, Texas. Moreover, it is uncontradicted that Parker's accident occurred on the West Range Road on the Fort Hood military reservation, which road is owned and maintained by the United States. Further, Parker was killed while driving a privately owned vehicle when it collided head-on with a military vehicle driven by another member of the military stationed at Fort Hood, Private Ted Peters.

These facts must be applied to the relevant decisional law. The most important case is Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). There the Supreme Court determined that injuries to a serviceman cannot be compensated for under the Tort Claims Act if such injuries arise out of or are in the course of activity incident to service. Feres applied a series of three fact situations to this service-connected exception, and, as in this case, each of the three claimants in Feres sustained his injuries while on active duty and not on furlough. In the fact situation most analogous to ours, a serviceman was killed when the barracks in which he was sleeping caught fire allegedly because of the negligence of the United States. In concluding that this fact situation came within the Court's exception, the Court, as noted in Stencel Aero Engineering Corporation v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), discussed three factors that caused the unanimous Court to deny a serviceman on active duty recovery under the Tort Claims Act if his injuries resulted from activity incident to military service. It is not necessary that these be discussed in detail here as all of these factors are present insofar as Sgt. Parker's death is concerned. The plaintiffs are receiving substantial sums monthly from the Veterans Administration as benefits to which they are entitled under the Veterans' Benefits Act, the relationship between Parker and the military is distinctly federal in character, and there exists here that special relationship between a soldier and his superiors, all of which the Court found present in Feres. This Court must only determine if his death was caused by activity incident to military service.

The plaintiffs forcibly argue that under these facts the law entitles the plaintiffs to recover their damages from the Government because his death was not sustained while engaged in activities incident to the military service. Brooks v. U. S., 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) is cited as authority for plaintiffs' position. However, in that case, Brooks was on furlough, as distinguished from a weekend pass, was traveling with members of his family on a public highway and off the base when the accident in that case occurred. The United States Court of Appeals for the Fifth Circuit in Zoula v. United States, 217 F.2d 81, 84 (5th Cir. 1955) has interpreted the Supreme...