Rich v. United States, Civ. A. No. 13903.
| Decision Date | 26 January 1956 |
| Docket Number | Civ. A. No. 13903. |
| Parties | Francis X. RICH v. UNITED STATES of America. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Henry Bischoff, Herman A. Becker, Philadelphia, Pa., for plaintiff.
W. Wilson White, U. S. Atty., Arthur R. Littleton, Asst. U. S. Atty., Philadelphia, Pa., for defendant.
The question presented is, Under what circumstances may a soldier recover under the Federal Tort Claims Act, 28 U.S. C.A. §§ 1346, 2671 et seq. for injuries negligently caused by another soldier or employee of the Government?
In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200, recovery was allowed, the Court saying that the accident had nothing to do with the plaintiff's army career and that, had it been incident to the service, a different case would be presented. The opinion was mainly concerned with the question whether the effect of the World War Veterans' Act of 1924, 38 U.S.C.A. § 421 et seq., was to deny servicemen a remedy under the Tort Claims Act. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 155, 95 L.Ed. 152, the plaintiffs were soldiers "on active duty and not on furlough". The Court said "This is the `wholly different case' reserved from our decision in Brooks v. United States" and, after pointing out that Brooks "was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission", held that "the Government 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." Finally, in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 144, 99 L.Ed. 139, the Court pointed out that the Brooks case had not been overruled and the Court referred to "the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty."
Although there have been conflicting decisions, it seems to me that the determinative fact in each case is not where the plaintiff was at the time he was injured (whether on or off the military reservation) and not whether he was at the time on pass, furlough, or "leave" (although these things may have a bearing on the ultimate question), but whether what he was doing at the time was, in the language of the Feres case, "in the course of activity incident to service."
In the present case the evidence before the Court shows that the plaintiff had been a patient in the military...
To continue reading
Request your trial
-
Johnson v. U.S.
...42 (M.D.Ga.1966) (although accident occurred on-base, relevant question is what plaintiff was doing when injured); Rich v. United States, 144 F.Supp. 791, 792 (E.D.Pa.1956) ("The determinative fact in each case is not where the plaintiff was at the time he was injured ... but whether what h......
-
Bryson v. United States, Civ. A. No. 77-3367.
...determinative exists. Further, courts have held injuries to be actionable even though occurring on military bases. Cf. Rich v. United States, 144 F.Supp. 791 (E.D.Pa.1956) ("The determinative fact in each case is not where the plaintiff was at the time he was injured."); Downes v. United St......
-
Schwager v. United States
...Callaway v. Garber, 289 F.2d 171 (9th Cir. 1961); Chambers v. United States, 357 F.2d 224 (8th Cir. 1966). 6 Rich v. United States, 144 F.Supp. 791 (E.D.Pa.1956); Knecht v. United States, 144 F.Supp. 786 ...
-
Ordahl v. United States
...v. U.S., 602 F.2d 1334, 1339 (9th Cir.1979). See, e.g., Bryson, Id.; Downes v. U.S., 249 F.Supp. 626 (E.D.N.C.1965); Rich v. U.S., 144 F.Supp. 791 (E.D.Pa.1956); Nowotny v. Turner, 203 F.Supp. 802 (M.D.N.C.1962). Instead, the court mandated that the circumstances surrounding the actual acti......