CLARKSON S. FISHER, District Judge.
This action involves a multiplicity of suits, most of which have now been consolidated, based on identical factual contentions.
Civil 74-1831 is an action for declaratory judgment brought pursuant to 28 U.S.C.A. § 2201, in which the named defendants are John Sanchez, Government Employees Insurance Company (hereinafter "GEICO") and the United States of America. Jurisdiction is invoked under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. § 2671 et seq. and/or the Federal Drivers Act, 28 U.S.C.A. § 2679(b)-(e). Jurisdiction is further based on diversity of citizenship, plaintiff being a citizen of Texas while defendant Sanchez is a resident of New Jersey and defendant GEICO is a corporation organized and existing under the laws of the District of Columbia.
Civil 74-1832, an action in tort for damages, was filed by plaintiff on November 21, 1974 against Sanchez and the United States. In view of the fact that the suit was prematurely brought against the United States prior to the lapse of a six month period between the time of filing the administrative claim of July 9, 1974 and the time of filing this action, plaintiff, upon learning of this defect, immediately commenced Civil 75-408, alleging the exact contentions as those claimed in Civil 74-1832. This action was taken in order to enable the plaintiff to obtain jurisdiction over defendant Sanchez in Civil 74-1832 and over defendant United States in Civil 75-408, pursuant to a consent order executed by the parties on April 28, 1975, in which defendant United States was dismissed in Civil 74-1832 only and defendant Sanchez was dismissed in Civil 75-408 only.
The final suit brought in this matter is Civil 75-840. This tort action, involving the same factual contentions as those in the above discussed suits, was originally instituted in Superior Court, Law Division, Burlington County and has now been removed to this Court, pursuant to 28 U.S.C.A. § 2679(d), on certification by the Attorney General that defendant Sanchez was acting within the scope of his employment. A motion to dismiss has been filed in this action by defendant Sanchez. However, at the request of counsel, the Court has withheld decision on such motion until disposition of the declaratory judgment action. These latter three suits, 74-1832, 75-408 and 75-840, have now been consolidated by consent order of May 27, 1975.
Plaintiff, a member of the United States Army stationed at Fort Dix, N. J., was operating a motorcycle on the base on November 30, 1972. While not within his "duty hours", he was struck by an automobile operated by defendant Sanchez, who was then performing his assigned tasks as a member of the Army. Sanchez was covered by an automobile insurance policy issued by defendant GEICO.
There are cross-motions for summary judgment before the Court brought by plaintiff and the United States in the declaratory judgment suit. Plaintiff avers therein that the FTCA purportedly holds that a member of the armed forces on the military post to which he is assigned, while not within the performance of his duties, may not invoke the FTCA. The effect of this contention is to deny plaintiff a remedy against the United States. Further, the provisions of the FDA provide that an individual injured by the alleged negligence of an employee of the Federal Government who was acting within the scope of his employment at the time of the accident may not sue the alleged tortfeasor individually, but may only bring suit against the United States. Plaintiff, therefore, asks this Court to resolve the apparent conflict between these federal statutes which appear to preclude him from recovery. He seeks a declaration that he cannot be deprived of his common law and constitutional rights to bring suit and to receive full and just compensation for his injuries.
Under the long-established doctrine of sovereign immunity, a governmental body cannot be sued unless it expressly waives its right to immunity from suit. However, with the enactment of the Federal Tort Claims Act, the United States Government did, in fact, waive its immunity by rendering itself liable for tort claims, "in the same manner and to the same extent as a private individual under like circumstances . . .", 28 U.S.C.A. § 2674. In the leading case of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Supreme Court stated:
"The Tort Claims Act was not an isolated and spontaneous flash of congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit." Id. at 139, 71 S. Ct. at 156.
The initial decision in determining whether recovery is allowed under the FTCA for personal injuries to or the death of a serviceman was decided in the affirmative in Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949). In Brooks, two servicemen were riding in an automobile on a public highway when their vehicle was struck by an Army truck, resulting in death to one and injuries to the other. It was held that servicemen were not precluded from relief under the Act provided that the injuries on which the claim was based were not incident to their service. "Were the accident incident to the Brooks' service, a wholly different case would be presented. We express no opinion as to it . . .". Id., at 52, 69 S. Ct. at 920.
However, one year later, the United States Supreme Court was faced with the "incident to service" issue in Feres, supra. That opinion involves three cases which were consolidated in view of the common underlying fact that in each instance, recovery was sought for injuries sustained by a serviceman while on active duty and not on furlough or pass, which resulted from the negligence of another member of the Armed Forces. In Feres, claimant sought recovery for the death of an officer who perished in a fire while sleeping in allegedly unsafe barracks. The Jefferson v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 and United States v. Griggs, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 cases involved claims based on medical malpractice.
The Supreme Court, in denying governmental liability, distinguished Brooks, supra on the basis that "Brooks' relationship while on leave was not analogous to that of a soldier injured while performing duties under orders." 340 U.S. at 146, 71 S. Ct. at 159. Here, the court concluded that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." (emphasis added). Id.
It is the phrase "incident to service" which, in its increasingly broad construction by the courts, has led to a great deal of difficulty. In Ritzman v. Trent, 125 F. Supp. 664 (E.D.N.C.1954), the court denied a soldier's claim for recovery under the FTCA for injuries sustained when his automobile was struck by a vehicle which had in turn been struck by a United States vehicle. Plaintiff was a member of the Army stationed at Fort Bragg who, at the time of the accident, was not on leave or furlough. Rather, he was on the base engaged in repairing a private automobile, with his activity in no way related to the performance of any military duty. In spite of these circumstances, the court denied recovery, holding that his injuries were incident to service
". . . as much so as the death of the serviceman in the Feres case, who was asleep in his barracks at the time of the fatal fire. While plaintiff here had been relieved of specific duty during the balance of the day on which he was hurt, so the decedent in the Feres case had been relieved of specific duty during the night on which he was burned to death in his barracks. In both cases the soldier was on active duty in the service of the United States, and of course, at the time, was subject to call for military duty." 125 F. Supp. at 665.
The Court of Appeals for the Eighth Circuit more recently has held that the plaintiff, a military reservist traveling in uniform to a weekend drill, was engaged in "activity incident to military service" and thereby precluded from recovery under the FTCA for injuries sustained as a result of the crash of the military aircraft in which he was a passenger, although plaintiff had the option of traveling by whatever means he chose and was not acting under orders at the time of the accident. United States v. Carroll, 369 F.2d 618 (8th Cir. 1966). The Court of Appeals for the Third Circuit, as well, in a per curiam decision, has upheld the continued viability of the Feres doctrine. Peluso v. United States, 474 F.2d 605, (3d Cir. 1973), cert. denied, 414 U.S. 879, 94 S. Ct. 50, 38 L. Ed. 2d 124 (1973).
The Peluso action was brought pursuant to the FTCA, as a survival action by the administrator and a wrongful death action by the parents of decedent, a member of the New Hampshire National Guard who died while on active duty with the United States Army at Fort Dix, N.J. During his service at that post, he allegedly received negligent treatment for an abdominal condition which resulted in his death. The Court of Appeals for the Third Circuit, although expressing its reluctance to adhere to Feres, deemed the case controlling until such time that the Supreme Court alters the principle or Congressional action remedies the results of the doctrine.
"The rationale of Feres was (1) that the relationship between a soldier and the United States was distinctly federal, while the Federal Tort Claims Act referred, for governing law, to the place where the act or omission occurred, and (2) that there was a federally funded care and compensation system for military personnel. For these reasons the (Supreme) Court concluded that (the) Federal Tort Claims Act should not be construed to apply to armed services personnel for injuries not only in the course of but also arising out of activity incident to service." Id. at 606.