United States District Court, Northern District of Illinois, E. D
January 13, 1964
MCNICHOLAS, PLAINTIFF, V. UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Wham, District Judge.
The captioned cause came on for hearing on the Motion of the
defendant UNITED STATES OF AMERICA entered herein November 21,
1963, to dismiss this action, under Rule 12(b) of the Federal
Rules of Civil Procedure. The Motion was based on the
assertion that plaintiff at the time of her alleged accident
was engaged as a volunteer in providing recreational
activities for patients of a Veterans Administration Hospital
with the prior approval and consent
of that hospital, and that by reason of such volunteer work
she became an "employee" of the United States of America and
ineligible to bring her action here under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b). The United States filed its
brief in support of this Motion, plaintiff filed her brief and
two affidavits in opposition to the Motion, and the United
States filed its reply brief and two affidavits by way of
additional reply. The Court having considered the Complaint,
the said Motion, briefs, and affidavits, and having heard the
arguments of counsel and being fully advised in the premises,
now enters the following findings of fact, conclusions of law
FINDINGS OF FACT
1. Plaintiff was a member of a volunteer organization which,
in the words of her complaint, was engaged on the day of the
"* * * in providing recreational activities for
patients of the West Side Veterans Administration
Hospital at 820 South Damen Avenue in the City of
Chicago, and State of Illinois, by providing
refreshments and entertainment for said patients
with the prior approval and consent of the
Recreational Director and officials of said
hospital * *"
2. Plaintiff was herself present on the day of the alleged
accident to participate personally in the activities of her
volunteer organization. As stated in her affidavit filed as
part of her brief in opposition to the Motion of the United
States, she had herself brought coffee and cookies that were
to be served as part of the activities on the day, and
"* * * that her purpose, and the purpose of the
other ladies, in being present on the date in
question was to assist in the conduct of a bingo
game for the patients, and to provide prizes for
the winners * * *"
3. The alleged accident took place while plaintiff was
present in the hospital as a member of her volunteer group,
present for the purposes thus stated by her, in a room where
those purposes were being carried out.
4. No allegation has been made by either party that an
express contract or agreement of employment existed between
plaintiff and the United States of America, and the
allegations by plaintiff in her affidavit that no express
agreement or contract was ever made are taken as true for
purposes of considering the Motion of defendant.
5. No allegations have been made by either party that
plaintiff was to be compensated in any form or amount, or ever
was compensated, for her services, and the allegations by
plaintiff in her affidavit that her services were wholly
voluntary and uncompensated are taken as true for purposes of
considering the Motion of defendant.
CONCLUSIONS OF LAW
From the foregoing facts the Court concludes that:
1. An employee of the United States to whom the Federal
Employees' Compensation Act is available is precluded from
recovery under the Federal Tort Claims Act. Johansen v. United
States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952);
Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3
L.Ed.2d 971 (1959); United States v. Meyer, 200 F.2d 110,
(C.A.5, 1952); Sasse v. United States, 201 F.2d 871 (C.A.7,
2. The question of whether an employment relationship
existed between the plaintiff and the United States of America
must be determined by reference to Federal law. Pattno v.
United States, 311 F.2d 604 (C.A.10, 1962); Courtney v. United
States, 230 F.2d 112, 114, 57 A.L.R.2d 1444 (C.A.2, 1956);
United States v. Sharpe, 189 F.2d 239, 241 (C.A.5, 1951).
3. The Federal Employees' Compensation Act includes as
employees of the United States
"[P]ersons rendering personal services of a
kind similar to those
of civilian officers or employees of the United
States to any department, independent
establishment, or agency thereof * * * without
compensation or for nominal compensation, in any
case in which acceptance or use of such services
is authorized by an Act of Congress * * *."
Title 5 U.S.C. § 790(b)(2).
4. Plaintiff, when injured, was providing recreational
supplies and services which the Administrator of the Veterans
Administration is authorized by law to provide. Title
38 U.S.C. § 233(3). Plaintiff was volunteering those supplies and
services without compensation, and the Administrator is
authorized by law to accept such volunteered services. Title
38 U.S.C. § 213. Accordingly, plaintiff was "rendering personal
services * * * authorized by an Act of Congress" as
contemplated by the Federal Employees' Compensation Act. She
was therefore an "employee" under Federal law within the
meaning of the Federal Employees' Compensation Act.
5. The "duty" of plaintiff in her employment, though
voluntary, was to provide food, assist in games, and help in
related recreational activities. Since she was in the correct
place to help carry out that duty, during a time her purposes
were being carried out, and was standing available to help
when allegedly injured, her injury was received "while in the
performance of (her) duty" under the meaning of Title 5 U.S.C. § 751(a),
and she is accordingly entitled to Federal Employees'
Compensation Act benefits.
6. This finding is within the intent of Congress to protect
those who volunteer their services under prescribed
conditions. U.S. Code Congressional Service, 81st Congress,
1st Session, 1949; pages 2133-2134. Plaintiff can claim both
medical treatment for her injuries under Title 5 U.S.C. § 759(a),
and compensation for injuries according to a formula
that covers her even though not salaried, under Section
762(c)(2)(D) of that Title. She is both protected and — as in
the case of all Federal employees — she is relegated to a
claim under the Federal Employees' Compensation Act as her
Wherefore, the Court having made the aforesaid findings of
fact and conclusions of law, and being fully advised in the
It is hereby ordered that the Motion of the defendant UNITED
STATES OF AMERICA to dismiss this action be and the same is
hereby sustained, and that this cause and action and the
Complaint herein be and they are hereby dismissed with
prejudice, and that the defendant UNITED STATES OF AMERICA
shall go hence without day.
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