United States v. Carroll

• Decision Date: 21 December 1966
• Docket Number: No. 18328.,18328.
• Citation: 369 F.2d 618
• Parties: UNITED STATES of America, Appellant, v. William G. CARROLL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

369 F.2d 618 (1966)

UNITED STATES of America, Appellant, v. William G. CARROLL, Appellee.

No. 18328.

United States Court of Appeals Eighth Circuit.

December 21, 1966.

Robert V. Zener, Atty., Dept. of Justice, Washington, D. C., for appellant. John W. Douglas, Asst. Atty. Gen., and Morton Hollander, Atty., Dept. of Justice, Washington, D. C., and also Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., were with him on the brief.

John J. Stewart, St. Louis, Mo., for appellee. Thomas P. Howe, St. Louis, Mo., was with him on the brief.

Before VOGEL, Chief Judge, MATTHES, Circuit Judge, and DUNCAN, Senior District Judge.

DUNCAN, Senior District Judge.

This appeal is from a judgment of the United States District Court for the Eastern District of Missouri awarding damages to the appellee for injuries sustained by him as the result of the crash of a military aircraft in which he was a passenger. The action was brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

At the time of the accident, plaintiff was a naval reservist traveling in uniform to a weekend drill with other members of his military unit. At trial, negligence was uncontested, and the amount of damages assessed by the District Court, $3,000.00, is not contested in this appeal. The sole question here presented is whether plaintiff's injuries were incurred, "incident to (military) service", within the meaning of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), so as to preclude recovery against the United States under the Federal Tort Claims Act, supra. The relevant facts are not in dispute.

In December, 1957, plaintiff was stationed at Lambert Field near St. Louis, Missouri. At that time, the Naval Reserve program there closed and plaintiff's squadron combined with another unit to form a new squadron stationed at the Naval Air Station at Millington, Tennessee, which is approximately 230 miles from St. Louis. Plaintiff was required to attend a minimum number of drills there each year. Failure to fulfill this requirement would result in a reservist's name being placed upon the active status pool list, making him subject to call into active duty by the order of the President of the United States for a period of 45 days. 10 U.S.C. § 270.

Since plaintiff and most of the other men in the new squadron lived in the St. Louis area, the holding of drills one weekend a month presented a transportation problem. It was therefore decided to furnish the St. Louis personnel with free transportation, i. e., a military airlift utilizing naval aircraft manned by naval personnel on active duty. This airlift was started in January, 1958, and was still in operation in March, 1963, when the accident involving plaintiff occurred.

Personnel desiring to utilize the military airlift for any particular drill would notify the squadron operations officer in advance so that their names would be placed on the preliminary flight manifest. This was usually done at the drill held a month before the transportation was to be supplied, so that the Navy could provide an adequate number of aircraft. Failure to make a reservation did not preclude a member of the unit from being thus transported, if space was available, but he would then be on a "standby" basis.

On the evening of any scheduled drill, the reservists who had expressed their intention of utilizing the free air transportation to Millington, would report in full uniform to Lambert Field for a roll call. At this formation, normal military commands and courtesies were in force. Moreover, the reservists were required, under arrangements with the National Guard, whose facilities they used at Lambert Field, to police the grounds for any litter that might be dropped as a result of their gathering.

The members of plaintiff's unit were not required to use the free naval transportation facility thus provided, but could avail themselves of any other transportation facility, including private transportation, which they desired to use. Even after the roll call of the unit at Lambert Field, prior to boarding the plane, any member of the unit was free to enter the aircraft, or not, as he chose. Upon once entering the plane, however, the reservists were under the command of the naval officers in charge of the plane. After the arrival of the plane at the Millington Naval Air Station, any member of the unit was free to attend the drill, or not, as he chose, subject to such penalties as might be imposed for his non-attendance.

On the night of the accident, March 15, 1963, plaintiff had orders to report to Millington at 8:30 P.M. for a training class. This drill was an "increment drill", not required as a condition of membership in the reserve squadron, but the men who attended were paid for the drill and credited with retirement points. The crash occurred on non-government property as the naval aircraft on which plaintiff was a passenger approached for a landing at Millington. After the accident, plaintiff was taken to the Naval Hospital at Millington where he was hospitalized for four weeks as a military patient. He received drill pay for the night of the accident and for the ensuing weekend, and subsequently, applied for and received Veterans Administration benefits based on his injuries.

In the action below, the United States admitted negligence and also that the unit, plane and crew were in the exclusive control of the United States. It was also admitted that the crew was acting within the scope of their authority at the time of the accident. The sole defense was that plaintiff's military status at the time of the accident precluded an action under the Federal Tort Claims Act, supra, under the doctrine of Feres v. United States, supra. The District Court rejected this defense.

The general rule governing the liability of the United States to servicemen under the Federal Tort Claims Act, supra, under which the present action was brought, was stated in Feres v. United States, supra at 146, 71 S.Ct. at 159. There the Supreme Court said:

"We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where injuries arise out of or are in the course of activity incident to service." (Emphasis supplied).

The Feres case involved three Tort Claims Act suits for damages involving injury or death of servicemen. None of these suits involved men who were actually performing military duties at the time of injury or death; in one case, the serviceman died in a fire at the barracks where he was quartered; in the other two cases, the men were injured by allegedly negligent medical treatment at military hospitals. In all three cases, it was held that the injuries were "incident to service."

There is no doubt that the Feres decision applies also to reservists. O'Brien v. United States, 192 F.2d 948 (8 Cir., 1951); Layne v. United States, 295 F.2d 433 (7 Cir., 1961), cert. den., 368 U.S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527; Drumgoole v. Virginia Electric & Power Company, 170 F.Supp. 824 (E.D.Va., 1959). Indeed, in every case subsequent to Feres, involving the Government's liability to servicemen under the Federal Tort Claims Act, supra, the determinative issue has been whether the injuries "arise out of or are in the course of activity incident to service."

Moreover, it is clear that the Feres case, itself, as well as subsequent decisions demonstrate that the "activity incident to service" test thus used to interpret the exclusionary provisions of the Federal Tort Claims Act, supra, under which the present suit was brought, is much broader than the requirements under 10 U.S.C. § 6148, which provides benefits for Naval Reservists ordered to perform inactive duty training who are "disabled in line of duty from injury while so employed". See e. g., Callaway v. Garber, 289 F.2d 171, 173 (9 Cir. 1961), cert. den. 368 U.S. 874, 82 S.Ct. 120, 7 L.Ed.2d 76; Layne v. United States, 295 F.2d 433, 434-435, (7 Cir., 1961), cert. den., 368 U.S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527; Zoula v. United States, 217 F.2d 81 (5 Cir., 1954); United States v. United Services Automobile Ass'n, 238 F.2d 364 (8 Cir., 1956); Chambers v. United States, 357 F.2d 224 (8 Cir., 1966). The latter decision, at 229 for example, held that a serviceman was covered by the Feres doctrine "(e)ven though he might have had a furlough order in his pocket or might have been engaged in swimming for recreation".

In all of these cases, the crucial question which determined liability of the Government under the Federal Tort Claims Act, supra, was not whether the serviceman was acting pursuant to orders at the time of the accident, but rather whether "the peculiar and special relationship of the soldier to his superiors" was in effect at the time of the accident. See United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954). In this case, the Supreme Court further explained the Feres decision in the following way, at 112, 75 S.Ct. at 143:

"The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character."

The foregoing precedents and policy considerations compel our conclusion that upon the facts of this case, the appellee comes within the scope of the Feres doctrine which prevents a serviceman engaged in "activity incident to (military) service" at the time injuries are incurred from recovering against the United States under the Federal Tort Claims Act, supra. We find the following factors to be significant, in this regard, in the present instance, but in nowise imply that all are required to bring any particular case within the purview of the Feres doctrine:

(1) Plaint

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