“special soldier-Govemment relationship which embraces the incident-to-service concept covers those wrongs which, although not sustained in the course of active duty, are so closely related to it that they may be deemed ‘incident’ to that duty”
How later courts described this case
- “special soldier-Govemment relationship which embraces the incident-to-service concept covers those wrongs which, although not sustained in the course of active duty, are so closely related to it that they may be deemed ‘incident’ to that duty”
- availability of veterans benefits not controlling
- aggravation of pre-existing heart condition
- “incident” to service includes activities arising from life on the military reservation
Written by the judges who cited it.
The opinion
PER CURIAM.
The complaint alleges that prior to induction into military service Healy was given a physical examination by a Government doctor who negligently certified him as physically qualified for service in the Air Force; that he was inducted in February 1959, ordered into basic training and such training aggravated a preexisting heart condition and caused the injuries for which he seeks damages; that in April 1959 he was discharged from the Air Force because of physical disability which existed prior to entry into service.
The United States moved to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted. The motion was granted, the court holding that the Federal Tort Claims Act does not impose liability for injuries that arise out of or in the course of military duty.
The main dispute in the court below as well as here, is whether the case is controlled by Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 , or by Brooks v. United States, 337 U.S. 49 , 69 S.Ct. 918 , 93 L.Ed. 1200 , and United States v. Brown, 348 U.S. 110 , 75 S.Ct. 141 , 99 L.Ed. 139 . In a thorough and well reasoned opinion Judge Weinfeld concluded that the Feres case controls. We agree. His opinion is reported in 192 F.Supp. 325 . Judgment is affirmed on the opinion below.