Brief for the Petitioner — Feres v. United States

Supreme Court brief1950

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Index.

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Table of a ssciicasamcesianiolacns Sie eer gee il

Opinion in the Court Below ........ccecceecceeceseeo-e- peeeene I

Jere Fat ot MES REN ABI l

inGeeens OF. te Cee SERNA 9

-Vederal Statute Involved) 20.00.0000. PLLGR SDV 3

Questions Presented 2......... > tes AARON gx ERA eALERTS 3

eg i ae Sy. ce eee? SERA nt AE Ee 4

Argument ...... ESR EPI NONE SAC OP ELD US IIT EY aT AGUERT ORI BS)

Pornt I. The Federal Tort Claims Act gave

- the District Court jurisdiction of ‘tany claim”

against the United States. Since the peti--

tioner was not excluded by any of the excep-

tions, the District Court below had jurisdic-

tion of her claim for the negligent death

of her husband caused by an act or omis-

sion of an emplovee of the Government.

Neither the act as written, its legislative

history or avowed purpose permitted the

dA'ourt below to read into the Act an excep-.

tion that was not there 220000000... lL cclings tapared rs)

Pownr II. Since a soldier ts on duty at all times,

irrespective of his particular activity or non-

activity, the decision in ‘the: Brooks case is

CORTFOUNN GE TOTO oi ica isd pisiecesedesboidcis 14

Pornr IIL. The privileges granted hy federal

statutes are not a substitute to the rights

granted by the Federal Tort Claims Act... 19

Post IV. The authorities relied upon by the

Court below are not controlling 000.000.020.000... 2

Conelusion .......... POWER CR ire aten Se ccanman sacs onh dureniasvadsowate 24+

ADORRIEE sac snmsisclsctevoamanmetcs: son Maceadencabaa ete pecatanaias peo tee taste 20

ii.

TABLE OF CASES.”

Pare

Bamman v. Erickson, 259 A. D. 1040, 21 N.Y. S,

- i Fee ees eee al a CARs eee Re a “<a

Bradey v. United States, 151 Fed. 2d 742, cert. d. oe

al ee 21

Brooks v. U.S., 337 U.S. 49, 93 L. Ed. 1200 -... 3, 6, 8, 14,

ed Coe. oe ae oe. oe er Oe

Caminetti v. U. S., °242 U. 8. 476, 485 PR ane OEE ae S

Dobson vy. United States, 27 Fed. Jd S07, cert. d.

278 U.S. 653

Employees’ Fire Insurance Co., ef al.. v. U.S.

Civui Action No. 11743, 167- F. 2d 655.000... 23

Equitable Life Assurance Society v. Pettus, 140

U. S. 226, 233, 35 L. Ed. 497, 500, 11 S: ‘Ct.

* RSENS CARR ICTERAS etn RCE NE ae a

Federal Trade Commission v. Bunte, 312 U. S.°349,

TELE AES a i ltt JO aca eS pees a aad 9)

Green v. State of New York, 278 N. Y. 15 _.......... Is

Griggs v. United States, 178 F. 2d 1-00.00... 2, 13

In re Lindquist Estate, 144 Pac. 2d 458, 154 Pac. 2d

I a Nahas age cad cls uh chcaccinisaneniacienscisedeonnh ancedacces 4)

Jefferson v. United States, 74 F.Supp. 209 0. 9,14, 21

Moore v. United tSates, 48 Ct. Clins. 110, 113 2. 16

Osaka Shosen Kaisha Line y. UL S., 300 U.S. 98,

pantens ¥. Tee U.S. £75 Fed; 2d 320 ............:......:.... 18

State Farm Mutual Liability Ins. Co. vu UL S., 172

i Be F< RRO Rn a he CORR semen les sidat 12

ili. .

United States v. Aetna Cas. & S. Co., 94 L. Ed. 151

POA SEWED ciennent toda etomeacume materia aac:

United States v. Pulaski Co., 243 U.S. 97 20...

United States v. South Carolina ee Highway

ee 208 fee oe ec

Wham v. United States, 180 Fed. 2d 38 ..........0.000000000...

STATUTES:

Title IV, Federai Tort Claiin Act 2... 3.4. 10, 12,

United States Code, Title 28, Section 921, ef seq. ....

Federal Tort Claim Act, Section 410

Federal Tort Claim Act, Section 402 PASTA TRAN 6,

20. Ce eee he Si

100 USCA 903 and 456a .......0.002.02.., peetesghosa Sees Seite

38 USC., Sections 501(a) and SO1(azth 2

o8 C.F.R. Cum. Supp., Section 2.1128(0b) 22000000...

MISCELLANEOUS:

AI. sO ON TE | sec iiseecgtacic nests eckesctiitcsaseri ne

( creed Record, Vol. 86, Pt. TL, Tth Congress,

3d Sess., 1940, pp. 12015-12032 an

Report of Joint Committee, H. Con. Res. 1S, 7 C on-

. gress, 2d Sess., House Report No. 1675 0...

SRI INNES BOs ND rasa sascnntetarndntersnecticonensceapiowtsinkans

Judge Advoeate General School’s Text No. 3

. “*Miitary Aan,” pp. VUES

Manual for Courts-Martial, U.S. Army, 1949, par.

ee Sy Geenercnmucr pestis Acacdie a cichabaiaun ts ware

Judge Advocate. General’s Ne hool Text No. -3.

‘Military Affairs’’ (1945 ed, pp. N26. to

SNES soa oa ie Wietbne ance umtaqueameiaauaeaadesetotes rea eta

Page

16.

Supreme Court fit the United States

Oc TOBER T ERM, 1950. .

No. 9.

Bersxice B, Fires, as Teacuteix under

the Last) Will and Testament of

Rudolph J. Feres, Deceased,

Petitioner,

Vs.

THe U NITED STATES or AMERIC ‘A.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT.

BRIEF FOR PETITIONER.

Opinion in the Court Below.

The opinion of the United States Court of Appeals for

the Seeond Circuit is reported in 177 F. 2d°535 (Record,

p. 8). The opinions of the United States District Court for

the Northern District of New York are unreported, which

appears in the reeord, page 2.

Jurisdiction.

The judgment of the United States Court of Appeals

for the Second Circuit was entered on the 4th of Novem-

ber, 1949. Petition for certiorari was filed January 26th,

1950. Certiorari was granted by this Court on. March

13th, 1950, Jurisdiction was based upon NSeetions 1254

and 21IOL of ‘Title 28, United States Code. This. case

presents a situation where the United States Court of

Appeals for the Second Circuit has rendered a decision

in conflict with another United States Court of Appeals

on the same matter. See Griggs v. United States, 178

F. 2d L ; ;

Statement of the Case.

This action was brought under the Federal Tort Claims

Act to recover for the alleged wrongful death of the

petitioner’s .testater, Deced&ed was oa First Lieufenant

in the United States Army. and died in a fire that swept

the barracks in which he was quartered at Pine Camp,

New York, on December 10th, 1947. after hostilities had

ceased and removed from the combatant areas (R25):

The decedent was the hushand of the petitioner who

Was appointed executrix and authorized to maintain the

action (R.-5).> \ ‘

The complaint alleged (R. 6) that the agents of the

United States were negligent in assigning the deceaséd

to unsafe quarters because of a defective heating plant

which caused the fire, and were further guilty of negli-

gence in the supervision of the fireguard. Other specifiea-

tions of negligence are alleged including failure to provide

a safe place rag the decedent ‘to be quartered.

The complaint was filed August 19th, 1948, and no

answer was filed by the Government. There was no

trial and a motion madeson the complaint to dismiss the

jy action on November Sth, 1948. The order dismissing the

, complaint was entered February 10th, 1949, and on the

oth of April, 1949, appeal was taken to the United States

Court of Appeals for the Secand Cireuit. The United

States Court of Appeals on November 4th, 1949, rendered

a-decision affirming the District, Court.

Se 3

Federal Statute Involved.

The Federal Tort Claims Act is Title IV of Public

Law, 601—79th Congress, Chapter 753, Sksers Session,

60 Stat. S43, ef seq. (United States Code, Title 28, Section

921, ef seq. On 1 September 1948, while this action was

pending, the new Judicial Code became effective. In it

the provisjons of the Act were recodified as Sections

1346 (b), 2401 (b) and 2671-2680. Sinee the rights of

litigants of impending actions are preserved as they were

under the. prior law (Section 2 [b] of Act of 25 June 1948, |

». L. 773) 80th Congr., 2d Sess.), we will refer to the

Sections in the Act as or iginally enacted. (See Appentlix).

ee ; | "

uestions Presented. ;

In Brooks v. P. S., 337 U. S. 49, 93 L. Ed. 1200,

this Court Held. that the Government is. liable under

the Federal Tort Claims Act to a soldier on furlough

“ for injuries then tortiously inflieted by other miktary

personnel. The question presented: here is: .

Is a soldier sleeping in barracks removed from

combatant areas after hostililies have ceased under

the protection of the Federal Tort Claims Act so

that his widow and dependents may recover dam-

ages for his death caused by the fegligence of the

employees of the United States Government acting:

Within the scope of their employment? \

In the Brooks ease, this Court answered in the aflirma-

tive the question as fo whether members of the United

States armed forees were under the coverage of the Aet.

This Court, see expressly reserved the question -as

to whether the Act appled to accidents. whieh were

incident to the sldier’s military serviee, stating In way

.of dicta (p. 52): ;

—

\ : 3 ; 4

‘*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

ts has already transpired.” &.

The question presented, therefore, is whether the Fed-

eral Tort Claims Act made a distinction as to coverage

depending upon the soldier's particular activity. at the

time of the injury or death and whether if the soldier

is disqualified while a soldier from suing under the Act

is this disqualification grafted over to his widow and

dependents.

Summary of Argument.

The Federal Tort Claims Act as written gives the

District Court jurisdiction of petitioner's claim. The

legislative history shows that the purpose of the Federal

Tort Claims Act was to relieve C ongyess from considering

_ thousands of bills introduced each year for claims against

the Government arising out of multitude of cireumstances,

including those of the armed services and their dependents.

The history of the enactment shows that Congress had

consid«red members of the armed forces. The exception

that the Court below has read into the Act was once

excluded by “Congress. .The Act is a general waiver of

immunity intended to do away with the old practice of

waiving sovereign Lmmunity by special. Act of Congress.

it follows the trend of the last 25 years of the Govern-

ment waiving sowreign immunity as ‘their activities ex-

pand.

Since a soldier is on duty at all times as a member

of the armed forces until discharged or separated trom

the service, the Aét creates no distinction upon the rigit

of the plaintiff to sue depending upon the particular

activity of the soldier at the time of the Act complained —

of, except those of the combatant nature. Since this Court

has decided that a soldier on furlough is entitled to sue

under the Act, it necessarily follows that all other soldiers,

so long as they have the status of the soldier, are likewise

entitled to sue under the Act. Assuming for reasons of

military discipline, a soldier should not sue while a member

of the armed forces, this disability is net grafted to his

widow and children, the petitioners here.

The fact that the Gevernment has given to soldiers and

their dependents certain privileges by other Federal stat-

utes cannot be considered a substitute to or an exclusion

of the right granted under the Federal Tort Claims Act.

The decisions relied upen by the Court helow are those

under-an unrelated Act passed more than 25 vears ago

which Acts were limited waivers of immunity and not the

broad general waiver of immunity as the Federal. Tort

Claims Act.

ARGUMENT.

POINT I.

The Federal Tort Claims A® gave the District Court

jurisdiction of “any claim” against the United States. °

Since the petitioner was not excluded by any of the

exceptions, the District Court below had jurisdiction

of her claim for the negligent death of her husband

eaused by an act or omission of an employee of the

Government. Neither the act as written, ita legi-la-

tive history or avowed purpose permitted the Court

below to read into the act an exception that was not

there. ml

The Act, Section 410, vives the District Court exclusive

Firvisdiction to hear, determine and render jadement with

outa jury ‘fon any claim against the United . States,

—<————

for money only, accruing on and after January 1, 1945,"

‘un aecount of damage to or loss of property or on

account of personal injury or death caused by the negli-

gent or. wrongful act or omission of any employee of

the Government while acting within the scope of his office

or employment, under circtimstances* where the United

States, if a private person, would be liable to the claim-

ant for snch damage, loss, injury pr death in- aceardance

with the law °of the place where. the act. or omission

occurred.” |

In Section 402, an eraployee of the Government is defined

as follows: | °

**(h) *iEmplovee of the Government? includes offi-

cers or 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 perinanently

in the service of the United States, whether with

or without compensation.”

this Court, in Brooks v. United States, 337 U. S. 49,

unequivocally stated (p. 51):

‘The statute’s terms are clear.> They provide

,for District Court jurisdiction. over any claim

founded on negligence brought against the United

States. We are not persuaded that ‘any claim’

means ‘any claim but that of ser ricemen. | The

. statufe does contain twelve exceptions, See, 421,

None exclnde petitioners’ claims. One is for claims

arising in a foreign country. A/second extludes

claims arising out of combatant activities of the

wilitary or naval forces, or the Coast Guard, during

Aime of war. These and -ther exceptions are too

lengthy, specific, and close to the present. problem

to take away petitioners’ judgments. Without re-

sorting to an automatic maxiin of construction, such

exceptions make it clear to/us that Congress knew

what if was about when At used the term ‘any

‘efairh.’ Tt would be —beurd/to believe that Congress

a Mee

did not have the servicemen in mind in 1946, when

this statute was passed. ‘Thaloverseas and: com-

oF batant activities exceptions makes this plain.’’

(a) Ufider familiar canons ‘of instructions, the Act

does not need interpretation and should be administered

as written. ,

The proper viewpoint is well expressed, with citations

of numerous authorities, in 50 Am. Jr., pages 204-207, as

follows: eee

‘;A statute is not open to construction as. a

smatter of course * * *, Where the language of

a statute is plain ind unambiguous and conveys a

clear and definite meaning * * * the -Court has

no right to look for or impose another meaning.

In the ease of gsuch unambiguity, it is the estab-

lished policy of the Courts to regard the statute

as meaning wWhat\it says, and to avoid giving it

any other construction than that which its words

demand. The plain and obvious meaning of the

language used is not only the safest guide to

follow in construing it, but it has heen presumed

conclusively that the clear and explicit. terms of

(/ a statute expresses the legislative \intention, so

that such plain and ol. vious. provisions must control,

A plain and unambiguous statute is to be applied,

and not interpreted, since such a statute speaks

for itself, and any: attempt to make it cleaner is

a vain labor and tends ouly to obse uritv.””

Mr. Justice Holmes, in United States v. Pulaski Ue

243.U. S. 97; ste ited (p. 106): foods \ wv;

“There js 9 strong presumption , on thks the

literal meaning isthe true one, especially as/against

cacconstruction that is not interpretation, but. per-

version; that takes from the proviso its ostensible

purpose to inrpose a eghdition precedent. * * *7")

Another familiar canon of statutory construction that .

when the meaning of the statute is plain the sole funetion

of the Courts is to enforce its terms. - See Caminetti v.

-U.8., 242 U. S. 470, 485:- Osaka Shosén Kaisha dine v.

U. S.,-300 U. S. 9S, LOL.

\ Equitable Life Assurance Society v. Pettus, 140 U.

S. 226, 233, 359-L. Ed. 497, 500, 11 S. Ct. 822, 825, the

Court said:

“This construction is put beyond doubt: by see-

tion oYS6 which, by specifying four eases—in which

the three preceding sections ‘shall not be applicable’

necessarily implies that. those sections shall eon-

trol all cases not so specified.”’

The specific exclusions, therefere, carry the implication

that all claims not thus exeluded may be successfully .

asserted.*

(b) The legislative history yrecludes the construction

put upon the Act by the Coun below. — oe ter

This Court in the Brooks ease stated (p. 50):

‘*More than the language and framework of the

act support this view. There were eighteen tort

claims bills introduced in Congress between 192.

and 1955.2 All but two* contained exceptions deny-

ing recovery to members of the armed forecs. When

the present Tort Claims Act was first isikedeced

the, exception coneerning servicemen had heen

“dropped! What remained from previous bills was

an exclusion of all claims for which compensation

was provided by the World War Veterans Act of

(June 7) 1924-43 Stat. 607, e320, 38 U.S. C. A.

See. 421, 11 F.C. A. title 388, See. 421, compensation

for injury or death o¢eurring in the first World

War. H. R. 181, 79th Cong. Ist Sess. When HR.

181 was incorporated into the Legislative Reorgant-

* Volume 23, Arnerican Bar Association Journal (p. 962):

“When these exceptions ‘are considered, we are left in the field of

Megligence of governmental agents in (a) the operation of motor ve-

hicles; and (b) the maintenance,, operation, and contro) of highways,

bridges, publie lands, building, and structures of all kinds.”

zation Act, the last vestige of the exclusion for

members of the armed forces disappeared. See

also Note, 1 Syracuse L. Rev. 87,:93, 94..

Congress specifically considered and deliberatély re-

jected an exception having exactly the same effect as that

which the Court below now writes into the Act. - This

is to be seen undeniably in the following circumstances :

The original’ predecessor of the Federal Tort Claims

Act was a bill, H. R. 7236, introduced in the 76th Congress.

‘It, like.the present law, provided for general waiver of

the Government’s immuyity to tort suits and in it there

were listed substantially the same twelve exceptions and

exclusions which appear in the present Act. But, in addi-

tion to these, there was at that time another exception

Proposed which would have excluded from the coverage

of the Act:

‘*Any ¢laim for which compe nacabians is provided —

Boer i }

by the * World War Veterans’ Act of 1924,

as amended.’

The theery of this exception, just as the Government

now urges in support of the lower “Court’s decision in

the present ease, was that the World War Veterans’ Act:

of 1924, as amended, confers certain governmental bene-

fits, such as the right to compensations payments, upon

all persons injured while in the armed services of the

United States, and therefore such persons should not

also have the benefit of a general statute permitting tort

suits against th Government. The clear purpose and

effect of the proposed. exception was thus ‘to exclude all

members of the armed services from rights of action

under the contemplated statute. Conversely, it seems fo

have been considered dbbvious (see Congressional Record,

Vol. 86, Pt. TL, 76th Congress, 3d Sess., 1940, pp. 12015-

12032, and see also footnote, p. 212, Jefferson vf United

States, 74 F.Supp. P09). that under the proposed statute's

general opening of the way to tort suits against the Goy-

; - 10

ernment, members cf the armed services would be able to

sue like all other persons unless some such exception was

expressly written into the statute. Though deba’ed, the

bill was, of course, not eiheted by the 76th Congress.

In the 79th Congress, the same bill, retitled"H. R. 181,

Was again introduced with all its exceptions including the

additional, or thirteenth, exception quoted and discussed

above. Congress again considered the bill, struck out of

ut the exception-in question, and enacted the remainder as

the present Federal Tort Claims Act.

The Federal Tort Claims Act, as its history partially

outlined above indicates, was no hasty or ill-considered

piece of legislation. The Court below was in error. to

assume that when Congress gave its attention to the

subje@ of exceptions or exclusions from the Act and

carefully etched out twelve such exceptions, it overlooked

and failed to mention a thirteenth exception which it

really intended, Certainly and above all, the Court below

erred when it disregarded the fact that Congress did con-

sider such thirteenth exception. And for the Court below

to write the effect of that exception back into the statute

after Congress deliberately and specifically struck it out,

is unjustifiable.

In the Report of the Joint Committee pursuant to H.

Con. Res. 18, 79th Congress, 2d Session, House Report

‘No, 1675, it is stated at page 25:

78 Delegation of Private Claims.

‘*Recommendation: That Congress delegate au-

thority to. the Federal courts and to the Court of

4 _(4Yanns to hear and'settle claims against the Federal

Government; and that Government agencies and

- departments be empowered to handle |eeal and pri-

vate matters now provided-for in private bills, such

as private pension bills and legislation authorizing

eonstrnuetion of bridges ever navigable streams.

***Congress is poorly equipped to serve as a judi-

cial tribunal for the settlement of private claims

: against the Government of the United States. This

method of handling individual claims does not work

well either for the Government or for the individual

claimant, while the cost of legislating the settle-

ment in many eases far exeeeds the total amounts

involved. :

‘‘Long delays in consideration of claims against

the Government, time consumed by the Claims

Committees of the House and Senate, and crowded

private calendars combine to make this an ineffi-

cient method of procedure. — 7

‘The United States courts are “well able and

equipped to hear these claims and to deeide them

with justice and equity both to the Government

and to the gaimants. We,. therefore, recommend

that all claims for damages against the Government

be transferred by law to the United States Court

of Claims and te the United States D¥striet Courts

for proper adjudication.

“We further reeommend that private pension

hills and other bills aealing with purely loca] and

private. matters, including the authority to con-

struct bridges over navigable streams, be delegated

to the proper agencies of government for final

determination.’’ (Italies ours.)

In the Senate Report No. 1400 to accompany S. 2177,

at pages 18 and 19, it is stated: |

‘Part 2. Provisions Applicable to Both Houses.

‘**Seetion 121. Private bills banned.

“This section bans private bills, resolutions and

seeders aathotivas or directing the payment

~ of property damages for personal injuries or death

or for pensions; the construction of bridges across

navigable streams; or the correction of military

or naval records, It is provided, however, that

the provisions of this seetion shall not apply to

private bills or resolutions conferring jurisdiction’

on the Federal courts to hear, determine, and ren-

der judgment in connection with private claims

otherwise cognizable under the Federal Tort Claims

howe Act if the claim accrued between January 1, 1939,

and December 31, 1944, the last day heing the day

hefore the effective date (for the purpose of ae-

erual of claims) of the Federal Tort Claims Act.

This wiil permit consideration of bills or resolu-

tions covering claims going back for a period of

6 years and would seem to be ample to prevent

any inequities.’’ (Italies ours.)

Page 29;

‘Tithe [V—Federal Tort Claims Act.

“This title waives, with certain limitations, gov-

ernmental immunity to suit in tort and permits

suitz- on tort claims to be brought against the

United States. 1t is complenrentary to the provi-

sion in title [T bannivg private hills and. resolutions

in Congress, leaving claimants to their’ remedy |

under this title.”’

Therefore it seems evident to us tha

to rid itself of the great number of priv;

of military personnel and their famille

session,

Congress wanted

te bills for relief

presented at every

Several’.cases arising under the Act have been inter-

preted as its primary purpose or intention to relieve

Congress of the burden of dealing by private acts tort

claims and construction put upon the Aet by the Court

below and the Government defeats that purpose... °

United States v. South Carolina State Highway

Dept., 171 Fed. 2d 893. *

State Farm Mutual -Liability Insurance Co, v.

United States, 172 Fed. 2d 737.

The position now assumed by the Government in litiga-

tion under the Act is at variance with the original pur-

pose of the Act as so indicated by Congress.

For the first time -in’ the history of this country has

there been peacetime consctiption® and the present activi-

ties of the Federal Government reach corners never

dreamt of by the founding fathers. It should not seem

unusual that co-related with this extension of Government

activity that there shoulyl ye assumed Government liability

and waiver of immunity ite suit.

The Act is a genera ie of immunity intended to

do away with the old Practice of waiving sovereign im-

munity by special act of Congress.” It follows the trend

of, the last twenty-five years of waiving Government

immunity as Government activities multiply.

The proper view of the! Act we submit is as stated i

Griggs v. United State}, 178 FP. 2d, page 3:

“With dileverks m4 the views of the learned

judge, in the Jefferson case, we fail to find any-

thing in the context of the Act or its legislative

history justifying judicial limitation upon the

claims of servicemen. As pointed out in the Brooks

case, there were eighteen tort claims bills intro-

duced in Congress between 1925 and 1935, all but

two of which contained provisions expressly ex-

empting claims of members of the armed forees.

When, however, the Congress finally came te con-

fer. jurisdiction 5 the District Courts over tort

claims against the United States, it: conspicuously

omitted to exclatfe claims growing out of a govern-

ment-soldier relationship. We think the only logi-

eal conclusion is that it deliberately refr: ained from

Sanka so. If the result of its omission to exept

such elaims leads to dire consequences and absurd

results, it is for Congress and not this Court to

provide ration: il limitations. ’’

—

soya forces of 2,300,000, still goal for the year" (N. Y. Times,

Sunday, Sept. 10th, 1950).

{

POINT II.

BB ine

Since a soldier is on duty at all times, irrespective

of his particular activity or non-activity, the dec cision

in the Brooks case is controlling here.

Since this Court in the Brooks case has held that a

soldier on furlough is entitled to sue, they have recog-

nized that the Aet creates no distinetion dependent upon

the particular activity of the soldier at the time of the

act complained of (except those in the exceptions)... The

decision that a soldier on furlough is covered by the Act

capried with it the necessary liuplic ation that all solliers

must be likewise covered. dae

as te

While he has the status of a soldier, his particular ac-

tivities or non-activities may vary from time to time.

He way be performing the duties of a soldier of the

widest variety, from training* to combatant serviee. A

soldier may be on furlough, as the soldier in the Brooks

case, or he may be in the hospital, uncenscious on the

operating table, as the seldier in the Jefferson case (178

Fed. 2d 518, cert. granted March 13th, 1950, No. 381),

and the soldier in the Ostrander ease (No. 33, October

Term, 1950, application for certiorari to the Second

Cireuit.Coenurt is pending undecided before this Court),

or he may be a soldier sleeping in the barracks far

removed from combatant areas, as the soldier in this case.

ue soldier’s status is that of a member of the armed

In Skeels v. LU. S.. 72 Fed. Supp. 372, combatant activities were

corstrued to men actual conflict. If Congress intended to exclude

activities arising out of ‘training activities, it. would have been easy

to have said so for they did chai “Guinan activities as well as

those arising out of ditties of a discretionary: nature.

forces until separated by discharge or retirement, if he

Gbeys its laws and regulations. Once inducted into the

army, his status is that of a soldier and not of a civilian

and henee a decision in the Brooks case should be decisive

of the ; sue here. ,

Is it to be assumed that Congress intended to include

soldiers covered by the Act while on furlough or some other

siinilar status but not- when sleeping in a barracks or per-

forming some other activity? The error of the Court be-

low is in assuming that the Act created the distinction be-

tween a soldier who was or active duty and one who was:

not. There is nothing in the wording of the Act that cre-_

ates this distinction; on the contrary, the exceptions where

the Act does not apply are specifically set forth in meticen-

lous detail in Seetion 421 thereof. |

jos

What the Court below overlooked is that a soldier is

on duty at all times irrespective of his particular activity

at the time, ; 3 |

There is no doubt whatever that’ a soldier on furlough

is on active duty. He receives army pay and allowances

(see The Judge Advocate General School’s Text No. 3,

‘Military Affairs,’ p. VIII-25), is ‘subject to the Ar-

ticles of War and céurts-martial (see Manual for Courts-

Martial, U. S. Army, 1949, par. 10, pp. 10-11), and is en-

titled to army hospitalization and medical care (see see-

ond Fourth Cireuit decision in Brooks ease, 176 FL. Dd

482). If injured while on furlough and discharged from

the army, he is entitled to benefits under the Veterans

Act only because he was disabled in NE of duty while

on active duty. Active duty status is one of the prerequi-

sites of the Veterans Act of 1924, as amended, which

provides for the payment of disability benefits (88 USCA

71 fal) tor | i a

‘Cay Any person who served in the active iill-

tary or naval service and who is disable as a

~“-

result ol disease or injury or aggravation of a pre-

existing disease or injury incurred in line of duty

in such serv ice,”’

If fatally injured while on furlough, his: legal repre-

sentative is entitled-to the six months’ death gratuity

(10 USCA 9023 and 456.a). ‘Phese benefits inure to the

soldier on furlough, as was illustrated in the Rrooks

case, solely because he was on active duty and was in-

eee in line of duty.’’ The theory is set out in Moore

rv. UL S., 48 Ct. Clms. 110, 113: :

**As a general proposition, we believe a’ soldier

is in line of duty until separated from the service

by death or discharge, if during such time he is

submitting to all of its laws and regulations, * * *

The provisions for furlougus or leaves of absence

are a part of the disciplinary regulations of the

military service, and no more separate a man from

the service than an order to report to a different

command. ’

For the historical development of the rule see the

Judge Advocate General’s School Text No. 3, ** Military

Affairs’? (1943 ed.), pp. X-26 to N-54.

In the Court below the Gavernment contended in its

brief at page 16: ‘

“The Supreme Court has stated that while on

leave, a serviceman ‘is at liberty to go where he

will during the permitted *ahgence, to. employ his

time as hé pleases, and ag surrender his leave if

he chooses.” nited States Wiliamson, 23 Wall.

411, 415. The leave ‘is a pS extended for his

sole accommodation’ to permit him te ‘enjoy a

respite from military duty.” Mosterv. United

States, 48 C. Cis. 170. * A. leave of absenve ‘or ‘a

furlough ‘is a faver extended. A soldier cannot

» “ > Py ‘ 7 “a ge

have a furlough forced on him.” Hunt % Uaited.

States, 88 C. Cls. 704, 710.’

)

bac 4

We, therefore, argue that if a. furlough is merely a.

favor extended to the soldier it cannot be concluded then |

that it is such a radical change in his status as to again

make him.a civilian foi the purpose of the Federal Tort

Claims Act. The Government argued that:much when

in its brief before this Court in the Brodks ease it stated

(p. 18): 3 | Ahan

€ ee 3

‘*The soldier is subject to military discipline even

while at play, and his desertion is a serious ¢rime,

punishable at times by death."

(p. 29):

‘*Even in the absence of such statutory exten-

sion, it has been recognized that a serviceman is

entitled to compensation benefits for injuries sus-

tained while he was away from duty and on leave,

inasmuch as the military relationship is continuous

and is not broken because of a pass. ‘A pass grant-

ing temporary leave for recreational purposes can-

not change this status any more than a leopard can

change its spots. It would be dehors the.prineiples

of riilitary seience if it were otherwise.” Globe Jun-

demnity Co, v. Forrest, A65 Va. 267, 272."

The Court of Appeals” for the District of Columbia

in Wham v. United States, 180 Fed. 2d 38, cited the

ease at bar but refused to follow it, pointing out the

same error as we haves

In that ease a police officer of the District of Columbia

was injured while on duty by a Treasury Department

vehicle, Cfiven by a Treasury Department employee. An

action Was brought under the Tort Claims Act. _ The. po-

liceman was eligible for various special benefits under

Federal stAtutes but the Court refused to. apply thy

doctrine of the Cireuit Court below in the case at bar

or the doctrine of the Dobson* and Bradey™ cases, hold-

*See Point IV infra where these cases are discussed.

ing that the decision by this Court in the Brooks case

controlled. 9

The District of Columbia Court of Appeals said that

there was no reason to draw a distinction between a

soldier on furlough and a soldier acting in the line of

duty because on furlough soldiers enjoy the same benefits

generally as those on active duty, therefore, there could

he no distinction chetween>a policeman on duty or off

duty.