Warner v. U.S., 83-1369

• Decision Date: 05 December 1983
• Docket Number: No. 83-1369,83-1369
• Citation: Warner v. U.S., 720 F.2d 837 (5th Cir. 1983)
• Parties: Dwayne G. WARNER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 837

720 F.2d 837

Dwayne G. WARNER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 83-1369

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 5, 1983.

Robert E. Hedicke, El Paso, Tex., for plaintiff-appellant.

Mark M. Greenberg, Asst. U.S. Atty., El Paso, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, RUBIN and JOLLY, Circuit Judges.

PER CURIAM:

The district court rendered summary judgment in favor of the government, dismissing a claim made under Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b), on the ground that the plaintiff, a soldier on active duty at the time of his injury, was barred from recovery because the injury he sustained was incident to his military service. We affirm the judgment, concluding that an injury suffered on a military base by a serviceman on private business during normal duty hours but during a period when he had been given permission to take the day off is incident to his military service and that no remedy is afforded by the Act.

Dwayne G. Warner was an enlisted man in the United States Army, stationed at Fort Bliss. One morning his sergeant gave him permission to take the remainder of the day off. Warner left his duty assignment shortly before noon and proceeded to the residence of a friend in order to repair his own automobile. Upon discovering that he needed some auto parts, Warner rode his motorcycle back to the Fort Bliss military base to obtain the parts at the auto craft store on the base. After he had returned to the base but before he had reached the store, he was injured when his motorcycle collided with an automobile driven by a federal employee as a result of the automobile driver's alleged negligence.

The Government is not liable under the Federal Tort Claims Act for injuries to servicemen that arise out of or occur "in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152, 161 (1950). Feres distinguished the situation of a soldier who was injured off the base while on furlough. In that situation, the Act was applicable. Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). As the opinion in Feres indicates, the primary factor in a case of this nature is the serviceman's duty status at the time of the accident; the case also noted the nature of the activity in which he is engaged and the location of the accident.

In Zoula v. United States, 217 F.2d 81 (5th Cir.1954), we denied recovery to servicemen who were injured on their base in an accident involving a government vehicle. At the time of the collision, the plaintiffs were dressed in civilian clothes, were on business of their own, and were going from one part of the base to the other. They were entitled to passes that would have permitted them to leave the base but had not obtained the passes at the time of the accident. Although the servicemen were in civilian clothes and conducting personal business, their claims were barred because they were on the post and still in the course of activity incident to service. 217 F.2d at 84.

Warner argues that Zoula "is a remarkable example of the misreading of the Feres doctrine." Zoula, however, remains the law of this Circuit, having been cited with approval in Mason v. United States, 568 F.2d 1135 (5th Cir.1978) and Parker v. United States, 611 F.2d 1007 (5th Cir.1980).

Warner contends that he was not involved in an activity incident to his military duties at the time of the accident, and that, therefore, the Feres doctrine does not bar his claim. In support of his argument, he cites Parker v. United States, supra. Parker had requested and received permission to be absent from duty from the end of his normal duty hours on August 28, 1974, until September 2, 1974. After he had finished work on the 28th and was en route home on this leave, but was still on the military base he was injured in an accident with a vehicle driven by another serviceman and subsequently died. We held that Parker was not engaged in any activity incident to his military service because he "was not...