The opinion of the court was delivered by: Napoli, District Judge.
MEMORANDUM OPINION AND ORDER
This is an action by the administrator of the estate of Jesse
B. Redmond under the Federal Tort Claims Act. The United States
has moved to dismiss, or alternatively, for summary judgment
claiming the lack of jurisdiction and a failure to state a claim
The factual situation underlying this controversy is undisputed
and relatively simple. As charged in the complaint, it appears
that plaintiff's decedent was inducted into the United States
Army. Prior to said induction, he underwent a physical
examination conducted by the Army at its Chicago Examination and
Induction Center. It is inferable that the Army found the
decedent to be physically qualified and then formally inducted
him. Thereafter, the complaint alleges that at Fort Leonard Wood
and Fort Carson the decedent requested medical examination and
treatment and that the Army rendered such medical examination and
treatment. Subsequently, the decedent was discharged and then
died. It appears that the cause of death was a brain tumor which
plaintiff charges the defendant negligently failed to discover
and diagnose as well as failing to provide adequate medical and
diagnostic treatment and examination.
Title 28, section 1346(b) confers upon the district courts
exclusive jurisdiction of civil actions against the United States
for money damages for death caused by the negligent or wrongful
act or omission of any employee of the Government acting within
the scope of his office or employment, "if a private person,
would be liable to the claimant in accordance with the law of the
place where the act or omission occurred." Title 28, section 2674
also subjects the United States to liability "in the same manner
and to the same extent as a private individual under like
circumstances. * * *" The only statutory exception which could be
pertinent is contained in § 2680(j) for a claim arising out of
the combatant activities of the military during time of war. Such
exception is inapplicable, however, to the case at bar as the
claim does not arise from combatant activities.
Other exceptions have been carved out of the Tort Claims Act by
decisional law. The United States relies on the decision of the
Supreme Court in the case
of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed.
152 (1950), which announced an exception for injuries to
servicemen where the injuries arise out of or are in the course
of activity incident to service. This doctrine has been
subsequently followed by the courts, e.g., United States v.
Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954) and Layne
v. United States, 295 F.2d 433 (7th Cir. 1961). As this exception
is now firmly established and plaintiff does not seriously
question it, there is no need for this court to review the
rationale of the Feres decision. The question facing this court
is whether the doctrine controls the outcome of the present
Plaintiff seeks to distinguish Feres and its progeny on the
basis that the decedent was not a member of the armed forces when
he was examined by the Army at his pre-induction physical. Feres
has been applied only to injuries or malpractice situations which
arise out of or are incident to service in the armed forces.
Therefore, if a person not a member of the armed forces would
have been injured under like circumstances, or if the serviceman
was acting on his own time, while under no orders or duty from
his superiors, then the relationship between the serviceman and
the United States is immaterial and the doctrine is inapplicable.
Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed.
1200; Feres, supra. This is plaintiff's claim, now relying on the
alleged failure of the Army to discover the brain tumor at the
decedent's pre-induction examination.
In the case entitled Healy v. United States, 192 F. Supp. 325
(S.D.N.Y. 1961), a similar claim was made by a serviceman who
alleged a negligent failure of the Army to discover his
pre-existing heart condition. He further contended that due to
this failure he aggravated his condition during basic training.
As that court recognized, the negligent conduct occurred prior to
his becoming a member of the armed forces but the injury, a
necessary element for any claim for relief, did not result until
he was a member of the army. Thus, the Healy court applied the
Feres doctrine since the claim for relief arose if at all when
the plaintiff was a member of the armed forces.
What is crucial in this case is the occurrence of the alleged
negligent conduct. And since this conduct was performed by the
Army, in the course of decedent's service or in determining
whether he was qualified to serve, the conduct is inseparably
intertwined, as the Healy court said, with the decedent's active
military service. This being the case, Feres compels the
dismissal of this action.
Accordingly, the motion of the United States is granted and the
action is hereby ordered dismissed.
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