Petition for Writ of Certiorari — McCord v. United States

LIDMRARN I FILED?

SUPREME COURT, U. B. :

— 1973.

‘

IN THE MICHAEL RODAX, JR CUE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

FIELD C. McCORD, JR. and wife, WILLIE

MAE McCORD, Father and Mother and next of

kin of KENNETH WAYNE McCORD, deceased,

Petitioners,

a

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EDWARD C. WHITE,

53203 Charlotte Avenuc,

Nashville, Tennessee 37209,

Altorney for Peclitioners

TENNESSEE LAW PRINTERS, P. ©. Box 277, Knoxville. Tennessee, Phone 525-4202

Boz=13-oU a

NNN faicritecinctesdibds 0 4b tie ddéin aaa slienidas 2

JURISDICTION ...... ALES AC eee 2

QUESTION PRESENTED .............cccccceeee. 2

CONSTITUTIONAL, STATUTORY AND OTHER

PROVISIONS INVOLVED ................00.-. 3

STATEMENT OF EE neeninectaaeewween 5

REASONS FOR GRANTING THE WRIT .......... : 7

CONCLUSION ........ VMPC bEnKed nee mbe maw 14

APPENDIX A—Memorandum and Order, 10/25/72,

a Ne

AUTHORITIES CITED

.

Cases:

Buer, Appt. v. United States,

ee Pe Ry CE vc icvcndn towhioewewcemecas 13

Brooks v. United States,

337 U.S. 52, 69 S.Ct. 918, 93 L.Ed. 1200 .... 12

Feres v. United States,

SOO U.S. 1FS (IGS) 2... cc cccccccscccccacee. »

Hale v. United States,

iid cicdniinddbetiunavcenaas ienemae 12

Lee v. United States,

261 F.Supp. 252 (D. Cal. ee a 12

Tastor v. United States,

124 F.Supp. 548 ........... MMe eben eewe 7

United States v. Brown,

1954, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 12

Statutes:

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Miscellaneous:

64 A.L.R. 2d, p.- 674-8 eee eee eo ee Be es 13

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EE CER WE OREAPE A Peg OPA . ’

PME tee SLAC ARO Le PETES NOS BREMEN, ON A

IN THE f

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO. :

FIELD C. McCORD, JR. and wife,

WILLIE MAE McCORD, Father and

Mother and next of kin of

KENNETH WAYNE McCORD, deceased,

Petitioners,

UNITED STATES OF AMERICA,

Respondent .

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioners, Field C. McCord, Jr. and wife, Wiilie

Mae McCord respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States Court

of Appeals for the Sixth Circuit entered in this proceeding on

May 7, 1973. Upon granting of this petition, the Petitioners

further respectfully pray that this Court summarily reverse

the judgment below and remand the cause to the District Court

for an assessment of damages.

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2

The Respondent in this matter is the United States of

America.

OPINIONS BELOW

The opinion and order of the United States District

Court for the Middle District of Tennessee, Nashville

Division, granting the Respondent's motion for a summary

judgment, is attached hereto as Appendix A, page A. l.

The opinion of the United States Court of Appeals for the

Sixth Circuit is attached hereto as Appendix B, page A. 4.

JURISDICTION

The judgment of the United States Court of Appeals for

the Sixth Circuit was entered on May 7, 1973. This peti-

tion for certiorari was filed within ninety (90) days of this

date. The Court's jurisdiction is involved under 28 U.S.C.

1254 (1).

QUESTION PRESENTED

This suit was brought by dependent pursuit of a deceased

serviceman for the unlawful death of their son at the hands

of a fellow serviceman.

Do the theories of Workmen's Compensation Law or do

the theories of Tort Law prevail in a case instituted

under the Tort Claims Act, 28 U.S.C. 1346 et seq.

and was the act causing the death incidental to the

service and the injuries and death stem from activities

that involved an official military relationship between

the tortfeasor and the decedent?

3

CONSTITUTIONAL, STATUTORY, AND OTHER

PROVISIONS INVOLVED

The statutory provisions involved are the Tort Claims

Act, 28 U.S.C. 1346 et seq.

"(b) Subject to the provisions of Chapter 171 of this

title, the District Court, together with the United States

District Court for the District of the Canal Zone, and

the District Court of the Virgin Islands, shall have ex-

clusive jurisdiction of civil actions or claims against

the United States, for money damages, occuring on and

after January 1, 1945, for injury or death caused by the

negligence or wrongful act or omission of any employee

of the Government while acting within the scopy 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 act or omission occurred in North Carolina.

"Section 28-173 N.C.C.A. Death by wrongful act;

recovery not assets; dying declaration. — When the

death of a person is caused by a wrongful act, neglect

or default of another, such as would, if the injured party

had lived, have entitled him to an action for damages

therefor, the person or corporation that would have

been so liable, and his or their executor, administrator,

or collector of the decedent... ."'

"28-174 Damages recoverable for death by wrongful

act; evidence or damages.—(a) Damages recoverable

for death by wrongful act include:

(1) Expenses for care, treatment and hospitalization

incident to the injury resulting in death.

(2) Compensation for pain and suffering of the decedent.

“SEPT 3

‘iter Hoe ee é

4

(3) The reasonable funeral expenses of the decedent.

(4) The present monetary value of the decedent to

the person entitied to receive damages recovered, in-

cluding but not limited to compensation for the loss of

the reasonably expected.

(A) Net income of the decedent.

(B) Services, protection, care and assistance

of the decedent, whether voluntary or obligatory to the

person entitled to the damages recovered.

(5) Such punitive damages as the decedent could have

recovered had he survived and punitive damages for

wrongfully causing the death of the decedent through

maliciousness, willful or wanton injury or gross negli -

gence.

(b) All evidence which reasonably leads to establish

any of the elements of damages included in subsection (a)

or otherwise reasonably tends to establish the present

monetary value of the decedent to the person entitled

to receive the damages recovered, is admissible in an

action for damages for death by wrongful act.

The plaintiffs insist that this act was not anassault, nor

an assault and battery in fact, nor according to the law of

North Carolina.

The law of North Carolina does not have a statute as to

the criminal offense of assault and battery and is governed

by the common law.

“Common law assault is overt act, or attempt, with

force and violence, to do some immediate physical

injury to person of another, which show of force or

menace of violence must be sufficient to put a person

of reasonable firmness in fear of immediate bodily

harm." State vs. Roberts, 270 N.C. 655, 155S.E. 303.

5

STATEMENT OF THE CASE

On the evening of November 22, 1970, Kenneth Wayne

McCord, E-3, 21st M.P., 503 M.P. Battalion, and Roger

R. Klay, Sgt., 118 M.P. Company, were on duty at the

M.P. Station in the basement of the City Police Building

of the Fayetteville, North Carolina Police Department.

They were not from the same battalion and were co-workers

at this station. ‘ .

About 10:10 P.M. Kenneth Wayne McCord entered the

M.P. Station in the basement of the building from another

part of the building and was shot in the chest by Roger R.

Klay with a .45 revolver, and Kenneth Wayne McCord died

instantaneously. Roger R. Klay was sitting at a bench

that was on a raised platform facing the doorway to the

Station. The platform wag raised about one foot and was

enclosed with the exception of a step-way to the side of

the platform and from the top of the bench to the ceiling.

Roger R. Klay and Kenneth Wayne McCord were the

only two people present. Roger R. Klay gave a statement

and said:

"McCord and myself came to work approximately

1540 (3:40 P.M.) 11/22/70. We went downstairs to

the M.P. desk. Upon arriving there, the only one

there was SP/4 Washington. McCord and myself talked

to him (Washington) approximately three or four minutes,

then he (Washington) left and at that time I was behind

my desk, and do not remember seeing the weapon. |

then turned around, walked around the desk and went

upstairs to check the blotter. I left McCord at the desk

by himself. Upon returning approximately ten minutes

later, I walked around behind the desk to my chair, and

laying on the desk was my weapon and my holster; the

weapon at this time was in the holster.

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We then carried on our regular routine working chores

until approximately 10:05 P.M., then we discussed clean-

ing our weapons. McCord took his weapon out of his

holster, laid it on the desk and stated, clean my weapon,

too. I said jokingly, clean your own weapon, and McCord

said O.K. be like that, picked up his weapon, put it in

his holster and walked out.

I then reached over on the desk and got out the clean-

ing equipment. I got the equipment out of the box, and

squeezed some oil ona pad. I then laid the oil pad

down, reached in my holster and pulled out my weapon.

I pushed the magazine release button, and let the clip

drop out while holding the gun pointed upward and toward

the right wall and away from the entrance door. |

then reached with my left hand to pull the slide back on

my weapon, and about the same time McCord stepped

up on the top step in front of the path which my weapon

was pointed and the gun went off. When the gun went

off, I saw McCord fall backward. The gun fell and struck

the counter top. I then ran around the desk to McCord,

where he was laying under the sink on the floor. Iran

upstairs and saw a Police Captain, and told him to call

an ambulance.

I was not aware that McCord had not come back into

the room that I was in, until he stepped in front of the

weapon at the time it went off. 1 did not intend to point

the weapon at McCord or to shoot him. Iwas not en-

gaged in horseplay at the time, but was cleaning my

weapon. Ican never recall pointing the weapon at him

at any time. When the weapon went off, I was attempting

to clear it."

The City Police found a part of a pint of gin in the waste -

basket and a breathalyzer test was given Roger R. Klay.

The test report is as follows:

7

"In reference to the above, I, E. G. Brown, took

Sgt. Roger R. Klay upstairs and he willingly took a

BA test, and results were negative on him, so far as

whiskey ...."

The plaintiff's sergeant of the battalion stated that the

cleaning of arms was not necessary and was prohibited.

(See the affidavit of Sgt. Bane.)

REASONS FOR GRANTING THE WRIT

1. The Petitioners Present Important Questions Not

Settled by This Court.

The facts in this case show that it was not an overt act

nor an attempt on the part of Klay to do immediate physical

injury to person of another, and McCord was not in fear

of immediate bodily harm. Similar facts are discussed

in the case of Tastor vs, United States, 124 F. Supp. 548

and on pages 550-551, the Court stated as follows:

(1) The Government's position is that, if tortious,

the mere drawing of a gun by Private Beltz constituted

an assault and that of necessity, everything following ~

therefrom was a battery. Under the facts this position

is untenable. Private Beltz testified that the regulations

provided that he was to draw his gun in order to make

an arrest, and that he drew his gun pursuant thereto for

the purpose of making an arrest. Therefore, the act

of drawing his gun was not "unlawful" as used in Section

240, supra. Or in the language of the Restatement of

Torts, Sec. 21, the act was privileged and therefor not

tortious.

(2) It was after Beltz had drawn his gun that his

conduct therewith became extraordinary. He cocked

his weapon twice, ejecting a live cartridge upon the

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‘9 pincitinnectciatantesiiai

deck. He then fired it wildly. In Rudd v. Byrnes,

156 Cal. 636, at page 640, 105 P. 957, at page 959,

26 L.R.A., N.S. 134, the Court said:

"That defendant's conduct was negligent may well

be conceded. ‘As firearms are extraordinarily

dangerous, a person who handles such a weapon is

bound to use extraordinary care to prevent injury

to others, and is held to strict accountability for a

want of such care.’ (Citing authorities).

By reasons of the dangerous nature of such weap-

ons, a person handling them is held toa high degree

of care. If he has not used the degree of care ap-

propriate to the circumstances, and injury result,

he will be liable to the person injured, if the latter

was without fault."

This Court agrees with the language quoted and finds

that the manner in which Private Beltz handled his gun

did not measure up to an ordinary standard of care

much less the higher degree of care required of him.

I, therefore, find that Private Beltz was negligent in

the manner in which he handled the gun after it was

drawn.

The Lewis, Stepp, and Maddux cases relied upon by

the Government are distinguishable from this case. In

those cases, the sentry involved intentionally fired at

or in the direction of the plaintiffs. In this case, Private

Beltz testified that he did not intend to fire his gun at

all, much less fire it at Tastor.

(3) The Government further contends that decedent

Tastor'’s own negligence in attempting to disarm the

sentry Beltz was a proximate cause of his own death.

If Tastor was guilty of contributory negligence, he cannot

9

recover under the law of Guam. Walterv. U.S.,

D.C., 110 F. Supp. 631. But here the plaintiff urges

that the "sudden peril rule" applies, see 19 Cal. Jr.

598. A recent expression of this doctrine appears in

Leo v. Dunham, 41 Cal. 2d 712, 714, 264 P. 2d 1, 2::

“However under the cases and the authorities,

a person who, without negligence on his part, is

suddenly and unexpectedly confronted with peril,

arising from either the actual presence, or the

appearance, of imminent danger to himself or to

others, is not expected nor required to use the same

judgment and prudence that is required of him in the

exercise of ordinary care in calmer and more

deliberate moments." (Citing cases.)

There is conflict in the evidence as to exactly what

happened. Private Beltz testified that Tastor and others

jumped him when he drew his gun and that in the scuffle

the first shot killed Tastor. Eye-witnesses, Harry

Rissman and Don Saunders testified that Beltz fired

wildly once before Tastor and Saunders attempted to

disarm him, the second shot killing Tastor. (Saunders'

deposition page 16). The Court observed the demeanor

of Private Beltz on the witness stand. He appears to be

highly nervous and an unstable individual. Since this

accident happened in 1948, Beltz was only nineteen at

the time and less stable if anything. This view is

strengthened by his admitted act of cocking his gun

twice, ejecting a live cartridge before firing it. He

explained this act by saying that he was nervous. Beltz

was not faced with any desperate situation. This was

a minor infraction of the Orders and Regulations. If

in doubt, the Sergeant of the Guard was available.

tr RRA GRAS 4

eat

10 .

The case most often discussed by the defendant in answer

is that the "Feres" ruling applies.

In the Feres case, the plaintiff, the administrator of

a deceased serviceman, brought action to recover for wrong-

ful death when the decedent perished by fire in the barracks

at Pine Corps, New York, while on active duty in service

of the United States.

Negligence was alleged in quartering the decedent in

barracks known or which should have been known to be

unsafe because of a defective heating plant, and in failing

to maintain an adequate fire watch.

The Court concluded:

"that the Government is not liable under the Federal

Tort Claims Act for injuries to servicemen where the

injuries arise out of are in the course of activity

incident to service."" Feres v. United States, 71

S. Ct. 153, page 159, 340 U.S. 135 (1950).

The plaintiffs conclude that the Feres decision was of

limited nature and that this was not a doctrine but on the

law to the facts in that case and not to all cases and is

discussed in Volume 32, Journal of the American Trial

Lawyers Association, as follows:

"The operative scope of Feres was benignly limited

in United States v. Muniz, 374 U.S. 150 (1963), which

held that the government may be held liable for the

negligent acts of its employees causing person injuries

to federal prison inmates. In the course of a luminous

opinion by Chief Justice Warren, the Court examined

the various rationales for Feres and found all of them,

except one, to be wanting. The Court concluded: "In

the last analysis, Feres seems best explained by the

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peculiar and special r«lationships of the soldier by 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...." 374 U.S. at 162.

Since this explanation evidently now provides the only

authoritative and satisfactory basis for Feres, it may

plausibly be contended that coverage under the Tort

Claims Act should not depend upon whether military

personnel were on active duty or on leave (as some

opinions indicate) at the time of their injuries, stemmed

from activities that involved an official military relation-

ship between the negligent person and the plaintiff.

PY OR eee

Support for this position is derived from the recent

case of Lee vs. United States, 261 F. Supp. 252 (D.

Cal. 1966). Inthat case, two enlisted men of the

United States Marine Corps, on active duty were in

the process of being transferred to Viet Nam, and for

that purpose were placed on board an airplane operated

by the Military Air Transport Service, United States

Air Force. In the course of taking off from a Marine

Corps air station in California to begin the overseas

flight, the airplane crashed, and the two servicemen,

along with many other people, were killed. Their

personal representative brought an action under the

Federal Tort Claims Act. The complaint made no

charge against the Marine Corps or against the Military

Air Transport Service; it alleged, instead, that the

crash was caused by the negligence of the Federal

Aviation Agency in operating, maintaining, and con-

trolling the departure of the aircraft from the ground

and in giving adequate terrain clearance information.

The Court denied the government's motion to dismiss

AAR gr RO aD RRET 4

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12

and stated that recovery would depend “upon whether

or not the injuries stemmed from activities that in-

volved an official military relationship between the

negligent person and the claimant. If so, the claimant

would be precluded; otherwise, he would not ...."

The Brooks, Brown, and Lee cases, Brooks v. United

States, 1949, 337U.S 52, 69SCt. 918, 93 L. Ed. 1200,

United States v. Brown, 1954, 348 U.S. 110, 75S. Ct.

141, 99 L. Ed. 139, and Lee v. United States, 261 F.

Supp. 252 (D. Cal. 1966), all show the thinking of the

Court as to factual situation where the acts complained

of are not of an official military relationship between the

tortfeasor and the injured party.

In support of the plaintiffs’ writ, the plaintiffs are

relying on the affidavit of Sgt. Bane, who was the decedent's

immediate superior, and the official military documents,

plus the reasonings set forth in the case of Lee v. United

States, 261 F. Supp. 252 (D. Cal. 1966), and that is:

Did the injury and death stem from activities that involved

an official military relationship between the negligent

person and the claimant? In the Lee case, the plaintiffs

were enlisted men on active duty.

The Feres and Hale cases, Feres v. United States,

340 U.S. 135 (1950) and Hale v. United States, 416 F.2d

355, show the thinking of the Court as to factual situation

where the acts complained of are of an official military

relationship between the tortfeasor and the injured party.

_ However, in the Hale case, the tortfeasors, military

policemen, were offering a ride to a serviceman from a

hitchhiking flag station to the base, and were involved in

a collision with a private automobile wherein the plaintiff

was injured.

13

The Court stated in that case, "The more fundamental

reason for excluding tort action against the United States

for injuries inactive military service pertaining to such

military factors as military discipline and government

immunity from the results of errors of military judgment."

(1, 2) page 357, Hale v. United States, 454 F.2d 355.

“The Brooks case, however, makes clear that the mere

fact that a claimant at the time of his injury is a serviceman

does not automatically‘bar his tort claims act relief."

(Emphasis supplied by writer) (3) page 358, Hale v. United

States, 454 F.2d 355.

1 SPRL NER ROS STINE RRS RINE q

The case discussed in 64 A.L.R. 2d, page 674 through

678, Richard W, Buer, Appt. v. United States of America

(241 F. 243, Dec., 1956) and the annotations from page

679 through 691 discuss the above cases and the Court in

the Buer case gave the anchor on which the decisions were

based as follows:

“Had plaintiff, while on leave, been injured on the

North Carolina highway by a government truck, and

had he sought damages because of those injuries, clearly

the case would come within the rule of Brooks v. United

States, supra. It is interesting to note the prophetic

quote in the Brooks' opinion, 337 U.S. at page 52, 69

S. Ct. at page 920, 93 L. Ed. at page 1204: The -

Government envisages dire consequences should we

reverse the-judgment. A battle commander's poor

judgment, an army surgeon's slip of hand, a defective

jeep which causes injury, all would ground tort actions

against the United States. But we are dealing with an

accident which had nothing to do with the Brooks’ army

careers, injuries not caused by their service except

in the sense that all human events depend upon what has

already transpired. Were the accident incident to the

Brooks’ service a wholly different case would be presented.

14

Here we have the "army surgeon's slip of hand".

Plaintiff was in the army hospital at Fort Bragg because

he was a member of the armed forces of the United States

located at that station. Under army regulations he was

no longer on leave. We hold the rule announced in Feres,

Jefferson and Griggs is applicable, and the judgment

dismissing the complaint is Affirmed."

CON CLUSION

For these reasons, it is respectfully prayed that a

writ of certiorari be granted to review the judgment and

opinion of the United States Court of Appeal for the Sixth

Circuit and that the said judgment and opinion be sum-

marily reversed and the case remanded to the District

Court for the assessment of damages.

Respectfully submitted,

EDWARD C. WHITE,

5203 Charlotte Avenue,

Nashville, Tennessee,

Attorney for Petitioners.

APPENDIX A

[fol. 1]

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

5

FIELD C. McCORD, et al.

vs. ry Civil Action No. 6593

UNITED STATES OF AMERICA 7

MEMCRANDUM AND ORDER

(Filed October 25, 1972)

Field C. McCord and wife, Willie Mae McCord, indi-

vidually as next of kin and as executors of the estate of

Kenneth Wayne McCord, ‘brought suit against the United

States of America under the Federal Tort Claims Act,

28 U.S.C. $1346, et seq., to recover damages for the

death of their son, Kenneth Wayne McCord, who was killed

on November 22, 1970, when he was shot by Sgt. Roger R.

Klay, both of whom were on duty in the United States Army.

The case is now before the court on motion of the United

States for summary judgment.

On the evening of November 22, 1970, Pfc. Kenneth

Wayne McCord and Sgt. Roger R. Klay, both stationed at

Fort Bragg, North Carolina, and assigned to the 21st

Military Police Company, were on duty at their station in

the basement of the Police Department of the City of

Fayetteville, North Carolina. At about ten o'clock that

evening McCord was shot and killed when a .45 revolver

which Sgt. Klay was cleaning discharged. A Fayetteville

Police Department investigation ruled the incident accidental

homicide.

re = a eee ee

RE ee rr 3

A.2

Memorandum and Order

The issue for determination is whether plaintiffs are

precluded from recovering damages in this action under

the Federal Tort Claims Act by reason of the

[fol. 2] fact that Pfe. McCord was on active duty and

acting within the line of duty at the time of the

shooting.

Plaintiffs allege that Army regulations prohibited the

cleaning of weapons at the location of the accident, and

they therefore reason that recovery should be allowed

since the decedent's death did not arise from an activity

that involved an official military relationship between the

negligent person and the decedent, but was caused by care -

lessness and inattention to an unauthorized and needless act.

Defendant asserts that the deceased was acting incident

to service and within the line of duty at the time of his

accidental death, and that plaintiffs are therefore precluded

from recovery under the Federal Tort Claims Act.

The Supreme Court in Feres v. United States, 340 U.S.

135 (1950), held 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."' 340 U.S. at 146 (Emphasis

supplied.) The court in United States v. Brown, 348 U.S.

110 (1954), affirmed the Feres doctrine, but spoke in

somewhat different terms: "We adhere also to the line

drawn in the Feres case between injuries that did and

injuries that did not arise out of or in the course of military

duty."" 348 U.S. at 113 (Emphasis supplied.) Thus, the

Supreme Court in considering claims under the Federal

Tort Claims Act has employed both an ‘incident to service"

standard and a more restrictive "in the course of military

duty" standard in characterizing the origin of injuries sus-

tained by servicemen. The Sixth Circuit, on the basis of

A.3

Memorandum and Order

language by Chief Justice Warren in United States v. Muniz,

374 U.S. 150 (1963), has concluded that "in the course of _

military duty" properly describes the origin of service -

related injuries which are nonrecognizable under the

Federal Tort Claims Act.

In this case, the court finds that the accidental homicide

of plaintiffs’ deceased son arose from activity which was

both "incident to service" and "in the course of

(fol. 3] military duty." In making this determination,

the court feels that the cleaning of weapons is

an activity which is commonplace in military life, and

which is clearly activity undertaken in the course of

military duty. This result is not changed by the fact

that Sgt. Klay was negligent in the conduct of cleaning his

weapon, or even that it was a needless act which was un-

authorized for one at this particular station. The crucial

element is that the accident resulted from activities en-

gaged in by active duty personnel in the course of military

duty. Therefore, the claim for damages is not one within

the scope of the Federal Tort Claims Act, and the motion

for summary judgment filed by the defendant must be and

hereby is granted.

/s/ L. Clure Morton

United States District Judge

APPENDIX B

NO. 73-1007

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FIELD C. McCORD, JR., and Wife,

WILLIE MAE McCORD, Father and

Mother and next of kin of

KENNETH WAYNE McCORD, deceased,

Appellants, |

Ve

UNITED STATES OF AMERICA,

Appellee.

ORDER

(Filed May 7, 1973)

Before: WEICK, McCREE and KENT, Circuit Judges.

This is an appeal from a summary judgment entered

by the District Court in favor of the defendant, United

States, in a case instituted under the Tort Claims Act,

28 U.S.C. §81346 et seq.

After consideration of the briefs and record, and the

arguments of counsel, we conclude that there was no error

in the court below. Judgment of the District Court is af-

firmed for the reasons stated in the memorandum opinion

of District Judge L. Clure Morton, and on authority of

Feres v. United States, 340 U.S. 135 (1950), and Hale v

United States, -416 F.2d 355 (6th Cir. 1969).

A.5

Order

IT IS ORDERED that the judgment of the District Court

be and it is hereby affirmed,

ENTERED BY ORDER OF THE COURT

/a/ James A. Higgins

Clerk