The opinion of the court was delivered by: Platt, District Judge.
The defendant, the United States of America, by the United
States Attorney, presents a motion to dismiss the complaint
for the following reasons:
1. It fails to state a claim upon which relief can be
granted;
2. The plaintiff lacks jurisdiction over all the defendants;
3. No defendant has consented to be sued;
4. The United States was not and is not the employer of any
person or agency which is alleged to have negligently caused
injury to the plaintiff.
The plaintiff, a civilian employee of Chanute Air Force Base
Exchange, brought this action under the Federal Tort Claims
Act, Title 28 U.S.C.A. § 2671 et seq., against the three
defendants to recover for personal injuries received in the
course of employment as result of the negligence of defendants.
At the outset in determining the validity of the motion it
must be borne in mind that a complaint is not subject to
dismissal unless it appears to a certainty that the plaintiff
cannot possibly be entitled to relief under any set of facts
which could be proved in support of the allegations. Chicago
& Northwestern R. v. First National Bank of Waukegan, 7 Cir.,
200 F.2d 383. This court*fn1 is not deciding that plaintiff
has a claim upon which relief can be granted for the reason
this cannot be ascertained until proof is made.
The defendants in their argument maintain that a post
exchange is not an agency of the United States and this suit
does not come within the meaning of the Tort Claims Act.
Section 2671, Title 28 U.S.C.A., defines "Federal agency" as
the executive departments, independent establishments and
instrumentalities of the United States. "`Employee of the
government'" includes members of the military or naval forces
of the United States. An officer of the armed forces is
usually in executive control of an exchange.*fn2 These
definitions would include an exchange as a "Federal agency"
and the officer in charge as an "employee" of the government.
This court believes that the case of Standard Oil Co. v.
Johnson, 816 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611, is
decisive in holding that the Army Exchange is an
instrumentality of the United States. The State of California
imposed a license tax measured by gallonage on the privilege
of distributing motor vehicle fuel. By the State Act the tax
was to be inapplicable "to any motor vehicle fuel sold to the
government of the United States or any department thereof for
official use of said government". St. 1923 Cal. p. 571 et
seq., § 10, as amended by St. 1927 Cal. p. 1309. A distributor
sold gasoline to an Army Post Exchange' in California and was
required to pay the tax. The Supreme Court of California
[218 Cal. 126, 22 P.2d 3] held that the exchange was not the
"government of the United States or any department thereof",
basing its decision on the relationship between the exchange
and the United States Government. The United States Supreme
Court held that whether exchanges are the "government of the
United States or any department thereof" was a federal
question. The California Supreme Court was reversed and in the
decision the Supreme Court described the status of exchanges
saying [316 U.S. 481, 62 S.Ct. 1169]:
"The commanding officer of an Army Post,
subject to the regulations and the commands of
his own superior officers, has complete authority
to establish and maintain an exchange. He details
a post exchange officer to manage its affairs.
This officer and the commanding officers of the
various company units make up a council which
supervises exchange activities. None of these
officers receives any compensation other than his
regular salary. The object of the exchanges is to
provide convenient and reliable sources where
soldiers can obtain their ordinary needs at the
lowest possible prices. Soldiers, their families,
and civilians employed on military posts here and
abroad can buy at exchanges. The government
assumes none of the financial obligations of the
exchange. But government officers, under
government regulations, handle and are
responsible for all funds of the exchange which
are obtained from the companies or detachments
composing its membership. Profits, if any, do not
go to individuals. They are used to improve the
soldiers' mess, to provide various types of
recreation, and in general to add to the pleasure
and comfort of the troops.
"From all of this, we conclude that post
exchanges as now operated are arms of the
government deemed by it essential for the
performance of governmental functions. They are
integral parts of the War Department, share in
fulfilling the duties entrusted to it, and
partake of whatever immunities it may have under
the constitution and federal statutes. In
concluding otherwise the Supreme Court of
California was in error."
It is obvious in the Johnson case that the Supreme Court
recognized the issue as to whether or not under federal law an
exchange was a "Federal agency." It concluded that gas sold to
exchanges was not subject to tax because under federal law
exchanges are "`the government of the United States or any
department thereof.'" Its decision was not based on the ground
that such a tax would be a burden to the federal government,
thus distinguishable here on the ground that exchanges are
"Federal agencies" only for the purpose of taxation. While it
was argued that if the California Act required exchanges to
pay such a ...