Scott v. United States
| Decision Date | 30 December 1963 |
| Docket Number | Civ. A. No. 951. |
| Citation | 226 F. Supp. 864 |
| Parties | Jack H. SCOTT, Edith L. Scott and Susan L. Scott, by Next Friend, Jack H. Scott, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Georgia |
L. B. Kent, Columbus, Ga., for plaintiffs.
Sampson M. Culpepper, Asst. U. S. Atty., Macon, Ga., for defendant.
This action is brought under the Federal Tort Claims Act, §§ 2671-2680 of Title 28, United States Code. This court has jurisdiction under § 1346(b), Title 28, United States Code. The cause of action asserted is based upon a claim for damages incident to injuries claimed to have been sustained by Edith L. Scott and Susan L. Scott by reason of alleged negligence in the operation of what is known as the "Hunt Club" which is located on the Fort Benning Military Reservation, Fort Benning, Georgia. The case was tried before the Court without a jury and was submitted by counsel for the respective parties on all issues of fact and law. This opinion is intended as compliance by the Court with the requirements of Rule 52, Federal Rules of Civil Procedure.
In 1956 a number of members of the United States Army stationed at Fort Benning, Georgia who either owned saddle horses or were otherwise interested for themselves or their families in the equestrian art and activities associated therewith, formed a voluntary association known as the Hunt Club. Army Regulations provided that activities of that nature which were organized, established and operated on the military reservation by individuals who were not acting within the scope of their official duties as members of the military establishment could exist only with the consent of the Post Commander. The Commanding General gave his consent for the establishment of the club and allowed it to use some land in a remote area of the reservation where once had existed a turkey farm upon which to construct such stables and other appropriate facilities as might be needed. He also permitted the club to use two or three small structures in the area which were remnants of the turkey farm.
The club began its operations under the provisions of a constitution and by-laws (adopted by the members of the club and approved by the Commanding General) which provided, among other things, that the club was to "be organized as a private association under the provisions of Paragraph 2(b) of AR 230-5 with the approval of the Commanding General, Fort Benning, Georgia."1 The constitution further provided that the club "shall not operate as an instrumentality of the Federal Government", and that the club would "be responsible for the upkeep of facilities made available to it by the Commanding General", and that "repairs to these facilities necessitated by the operation of the Hunt (Club) shall be the responsibility of the Hunt" (Club). The purpose of the club was stated as follows: "The purpose of the Hunt Club is to provide facilities where members may maintain horses or ponies, and to provide regulated activities connected therewith". Membership in the club was to be open to all military personnel on the Post and such others as might be invited to become members who were not members of the military establishment. Dependents of military members were to have club privileges.
A Board of Governors directed the activities of the club. This Board and the club officers, consisting of a President, Vice President, Secretary-Treasurer and Stable Officer, were elected initially and have since been elected annually by the club members.
All members of the club were required to pay an initiation fee of $20.00 and dues thereafter of $1.00 per month. The club prospered and built twenty-five permanent block stalls for horses, a tack room and a room for hay storage and two riding rings. In 1959 twenty-five additional temporary stalls were constructed, the materials being purchased by the club from a wrecking company in nearby Columbus, Georgia, and the actual work of construction being done by club members in off-duty hours. Mounts owned by club members were quartered for a monthly fee and the club purchased about twenty additional horses which were available for rent on an hourly basis. The club also engaged a riding instructor and an hourly charge was made for instruction. Veterinary service was provided by an off-Post veterinarian who was engaged by the club.
The club had no restaurant, bar, game room or other recreational facility. Occasionally the club members would have a picnic or a barbecue in the area, but the principal purpose for the club's existence was the stabling and riding of horses. The income derived from rentals and instruction was used to buy feeds and otherwise maintain the horses which the club owned and to buy saddles and bridles for the club-owned horses and to pay salaries, utility bills and other incidental expenses incurred by the club. The club kept its own books and maintained a bank account.
The Army never contributed any money or property to the club and under the provisions of the constitution the club members are subject to assessment if the income of the club is not adequate to pay expenses. Such assets as may be owned by the club if and when it is eventually dissolved will be distributed among the club membership. There have been times in the past when the club was sponsoring a horse show when members obtained the temporary use of some seating equipment in the nature of bleachers and some loud speaker sound equipment which was Army property for which the Army made no charge to the club. It also appears that there have been occasions when Army trucks have hauled wood shavings and sawdust to the club's stable area. In general, however, the club has been self-sustaining.
The constitution of the club provides that it shall be the duty of the Board of Governors to "act on" any matter called to its attention by the Commanding General, but the record indicates that no such occasion has ever arisen. Being responsible for everything at the Post, the Commanding General does require the club to submit its financial records to his accounting representative for monthly audit, as is required of all nonappropriated funds regardless of whether they are or are not considered by the Army as being instrumentalities of the Government.
On May 17, 1961 Jack H. Scott, at that time a Captain in the United States Army stationed at Fort Benning, was a member of the Hunt Club and owned a horse stabled at the club. His wife, Edith L. Scott, and his daughter, Susan Scott, were his dependents and entitled to use the club facilities. On that date Edith L. Scott and Susan Scott went to the club and Susan rode the Scott horse. After riding the horse Susan tied the horse to a hitching post and she and Mrs. Scott proceeded to "brush the horse down". While being thus tied, the horse pulled his head back in such manner as to put pressure on the reins, pulling the post back toward the horse and causing the post to fall upon both Mrs. Scott and Susan, inflicting injuries upon them.
It is clear that the hitching post which fell was erected and maintained by officers and employees of the Hunt Club and the complaint alleges that the Hunt Club was such an instrumentality of the United States Army as to make it a "Federal Agency" within the meaning of the Federal Tort Claims Act and that the hitching post was insecurely, inadequately and improperly erected and negligently maintained in the circumstances and that such negligence was the proximate cause of the injuries sustained. The Defendant contends that the Hunt Club is not a "Federal Agency" and further, that even if it is such an agency there has been no showing of any violation of any duty owed to the complainants so as to make the United States liable.
The Federal Tort Claims Act consents to suits against the United States for injury to or loss of property or for personal injuries 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.
The term "employee of the Government" includes officers and employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.
"Federal Agency" includes the Executive Department and independent establishments of the United States and corporations primarily acting as instrumentalities or agencies of the United States.
The crucial question involved here is whether the Hunt Club is a "federal agency" within the meaning of the Act.
The Hunt Club is an association of individuals in their private capacities. The funds with which it operates are privately owned. No appropriated funds of the United States are used. It is what is known as a nonappropriated fund activity. Nonappropriated funds have long been been associated with the military services. They are of many types, serve many purposes and are established and operated in various ways. It cannot be stated categorically that all nonappropriated fund activities are instrumentalities of the United States. Neither can it be said that none are. Each must be judged in the light of the particular circumstances surrounding it.
There can no longer be any doubt that nonappropriated fund activities such as post exchanges, ship's service stores, commissaries and messes are integral parts of the military establishment and that the Government is liable for negligence in their operation. It has been so held in Standard Oil Company of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942) (Army post exchange); in Aubrey...
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Witt v. United States, 661
...still not be liable since the Hunt Club was not a "federal agency" or instrumentality of the federal government. See Scott v. United States, 226 F.Supp. 864 (M.D.Ga.1963), aff'd, 337 F.2d 471 (5th Cir. 1964), cert. denied, 380 U.S. 933, 85 S.Ct. 939, 13 L.Ed.2d 821 (1965) (Fort Benning Hunt......