United States District Court, Northern District of Illinois, E. D
June 24, 1964
NEWMAN G. DEGENTESH, ADMINISTRATOR OF THE ESTATE OF ROBERT J. DEGENTESH, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Parsons, District Judge.
This action is brought by the Administrator of the Estate of
P.F.C. Robert J. Degentesh against the United States of
America under the Federal Tort Claims Act, 28 U.S.C. § 1346(b),
§ 2680 et seq. The complaint alleges the death of plaintiff's
decedent due to injuries arising out of a motor vehicle
collision on April 25, 1962, in Hawaii, caused by the alleged
negligence of an employee of the United States. By way of
affirmative defense, defendant contends that decedent was, at
the time of the occurrence, engaged in activity incident to his
military service. The cause comes on today for ruling on
defendant's motion for summary judgment.
The material facts are undisputed. Plaintiff's decedent
entered on active duty with the United States Marine Corps on
November 10, 1959. On April 20, 1962, a few days before the
fateful occurrence, P.F.C. Degentesh was assigned to the
Marine Barracks at the United States Naval Base at Pearl
Harbor, Oahu, Hawaii.
On April 25, the decedent was a member of Starboard Section
of Security Company at the Marine Barracks, and accompanied
the Section for a special services recreation party,
authorized by Naval and Marine Regulations. The Section left
for the party in a Navy tractor-trailer driven by a Marine
assigned as driver. While en route to the recreation area, the
bus overturned, causing injuries to the plaintiff's decedent,
which resulted in his death.
The sole question presented for decision is whether a
soldier on active duty, accompanying his Marine company
section to a service recreation party authorized by service
regulations, is, as a matter of law, engaged in activity
"incident to his military service" at the time of an
occurrence resulting in his death, so as to bar recovery by
his administrator under the Federal Tort Claims Act. Feres v.
United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152
(1950). This is an issue of first impression.
Plaintiff does not contest the fact that the decedent was on
active duty with the Marine Corps at the time of the
occurrence which caused his death. The argument is made,
however, that riding to a recreation party, which plaintiff
characterizes as "an optional beer party at the beach", is not
activity "incident to his military service" within the rule of
the Feres case.
Plaintiff attempts to bring this case within the scope of
Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed.
1200 (1949), where personal-injury claims of several soldiers
under the Federal Tort Claims Act were upheld. The opinion of
the Circuit Court of Appeals in that case indicated that the
were on leave or furlough, engaged in their private concerns
and not on any business connected with their military service"
at the time the car in which they were riding was struck by
the negligent driver of an army truck. 169 F.2d 840, 841 (4th
Cir. (1948). The Supreme Court in affirming this decision
emphasized that recovery was allowed "for injuries not
incident to their service." 337 U.S. at 50, 69 S.Ct. at 919.
Similarly, summary judgments in favor of the United States
have been denied where soldiers injured were "on pass". Wilcox
v. United States (Blond v. United States), 117 F. Supp. 119
(S.D.N.Y. 1953); Rosen v. United States, 126 F. Supp. 13
The present case is distinguishable from these cases. Here,
the decedent was not on leave, pass, or furlough. Nor was he
on a private concern. Rather, he was engaged in an authorized
military activity. The fact that he was en route to a merely
pleasurable activity makes it no less so. See, Richardson v.
United States, 226 F. Supp. 49 (E.D.Va. 1964). With the
recognition of the long standing military point of view that
the absence of substantial recreational activities creates
difficulty in the morale of members of the armed services, and
that, except when he is on leave, the whole of the serviceman's
activities are under military planning, the recreation party
was an official one designed to boost company morale, and to
produce a healthier and better working atmosphere for military
men. Thus, the recreation party can be considered as much an
incident of military service as classroom work or field drill.
The alleged "optional" character of the party involved in the
instant case is irrelevant, since Marines refusing to go to the
party would have had to perform other service obligations
I conclude, therefore, that the decedent was engaged in an
activity incident to his military service at the time of the
occurrence which resulted in his death, and that plaintiff is
not entitled to recovery under the Federal Tort Claims Act as
a matter of law.
I observe that plaintiff is not entirely without relief.
Apart from the Tort Claims Act, there exists a much more
broadly based and comprehensive compensation system for
injured service personnel and their survivors. The benefits to
which survivors of deceased servicemen are entitled were found
by the Supreme Court, in the Feres case, to have compared
"extremely favorably with those provided by most workman's
compensation statutes." 340 U.S. at 145, 71 S.Ct. at 159.
Those benefits were subsequently expanded by Public Law 881
enacted by the 84th Congress in 1956, the law under which
P.F.C. Degentesh designated his parents to receive benefits.
The benefits as later codified into 38 U.S.C. § 410 et seq.,
provide for compensation to survivors of servicemen who die
from service-connected incidents while on active duty.
Survivors who may benefit include parents of the deceased
serviceman. 38 U.S.C. § 415.
The presence of such a system of compensation was one of the
principal reasons articulated for the rule in the Feres case.
It was the inadequacy of a somewhat analogous system in effect
for Federal prisoners that prompted the decision in United
States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805
(1963). Noting that the reasons for the decision in the Feres
case were not compelling in the case involving Federal
prisoners, the Supreme Court in the Muniz case announced "we
find no occasion to question Feres, so far as military claims
are concerned." 374 U.S. at 159, 83 S.Ct. at 1856.
Accordingly, since no reasonable man could doubt that the
decedent's activity was incident to his military service,
defendant's motion for summary judgment must be, and the same
hereby is, allowed. Judgment is entered in favor of the
defendant. And it is so ordered.
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