Ritzman v. Trent, Civ. A. No. 368.

• Decision Date: 18 November 1954
• Docket Number: Civ. A. No. 368.
• Citation: 125 F. Supp. 664
• Parties: Willie RITZMAN, Plaintiff, v. Robert L. TRENT and the United States of America, Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

125 F. Supp. 664

Willie RITZMAN, Plaintiff, v. Robert L. TRENT and the United States of America, Defendants.

Civ. A. No. 368.

United States District Court E. D. North Carolina, Fayetteville Division.

November 18, 1954.

Rose & Sanford, Fayetteville, N. C., for plaintiff.

Anderson & Nimocks, Fayetteville, N. C. (for Robert L. Trent, defendant), Julian T. Gaskill, U. S. Atty., Goldsboro, N. C., for the United States.

GILLIAM, District Judge.

This action was instituted by plaintiff against defendants to recover for personal injuries allegedly resulting from the negligence of defendant Trent in driving a Buick into another vehicle to which plaintiff was making repairs, and the negligence of the United States in theretofore striking the Trent Buick and causing it in turn to collide with the vehicle to which plaintiff, as above stated, was making the repairs. As to the United States, the action is brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq.; as to the defendant Trent, diversity of citizenship is alleged.

Trent has answered, denying negligence, alleging negligence of the United States and seeking recovery by cross action from the United States for damages to his automobile which allegedly resulted from the collision of the United States vehicle with his. The United States has filed a motion for summary judgment as to both the plaintiff's claim for personal injuries and also Trent's cross action for property damage, and has filed an affidavit of Assistant United States Attorney Samuel W. Howard; contra affidavits have been filed by plaintiff. It appears to me from the pleadings, the admissions and the affidavits on file that no genuine issue as to any material fact exists and that, therefore, the motion should be allowed in both respects, as provided in Rule 56, 28 U.S.C.A.

These facts are found: The collisions which caused the personal injuries to plaintiff and the property damage to Trent occurred on the Army Reservation at Fort Bragg, N. C.; plaintiff, at the time, was a member of the Army stationed at Fort Bragg, on active duty and not on leave or furlough; at the time he was not engaged in the performance of any military duty; he was engaged in repairing a private automobile and his activity was in no way related to his duties as a soldier; at the time he was assigned to no military mission, as it was pay day and the usual military activities had been suspended for the day and the personnel of plaintiff's unit temporarily relieved of specific military duty; at the time the defendant Trent was in the Military Intelligence Group, U. S. Army, stationed at Fort Bragg, N. C., and was returning from the Main Post after completing a mission for his unit.

The question whether the United States is liable to the plaintiff for his personal injuries is definitely established, as I believe, in the negative by the decision in Feres v. United States, 340 U. S. 135, 71 S.Ct. 153, 95 L.Ed. 152. The intestate of Feres died by fire in the barracks at Pine Camp, N. Y., while on active duty in service of the United States, plaintiff alleging negligence in quartering decedent in unsafe barracks. Recovery was denied. The Court, after a thorough analysis of the Tort Claims Act and setting forth its background, said, 340 U.S. at page 146, 71 S.Ct. at page 159: "We conclude 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." This case, therefore, seems to dispose of plaintiff's claim, for certainly his injuries were "in the course of activity incident to service" as much so as the death of the serviceman in the Feres case, who was asleep in his barracks at the time of the fatal fire. While plaintiff here had been relieved of specific duty during the balance of the day on which he was hurt, so the decedent in the Feres case had been relieved of specific duty during the night on which he was burned to death in his barracks. In both cases the soldier was on active duty in the service of the United States, and of course, at the time, was subject to call for military duty.

In the Feres case, Mr. Justice Jackson wrote, 340 U.S. at page 138, 71 S.Ct. at page 155: "We do not overlook considerations persuasive of liability in these cases." Neither do I, but the conclusion reached in that case, in spite of such considerations, seems to govern in this case.

In that case, 340 U.S. at page 138, 71 S. Ct. at page 155, the Court opens its reasoning by saying: "The common fact underlying the three cases (Feres, Jefferson and Griggs) is that each claimant, while on active duty and not on furlough (it does not add "and at the time not performing any military duty" although such was true in each case), sustained injury due to negligence of others in the armed forces. The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining `incident to the service' what under other circumstances would be an actionable wrong. This is the `wholly different case' reserved from our decision in Brooks v. United States, 337 U.S. 49, 52, 69 S.Ct. 918, 920, 93 L.Ed. 1200."

Quoting further from Feres, 340 U.S. at page 141, 71 S.Ct. at page 157: "It will be seen that this (Tort Claims Act) is not the creation of new causes of action, but acceptance of liability under circumstances that would bring private liability into existence. * * * We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving."

Plaintiff's counsel relies heavily upon the decision...