distinction' is that 'The injury to Brooks did not arise out of or in the course of military duty.'
Since the Brooks and Feres decisions a number of conflicting lower court decisions have appeared: See Brown v. United States, D.C.1951, 99 F.Supp. 685; Herring v. United States, D.C.,1951, 98 F.Supp. 69; Barnes v. United States, D.C.1952, 103 F.Supp. 51; Pettis v. United States, D.C.1952, 108 F.Supp. 500; Snyder v. United States, D.C.1953, 118 F.Supp. 585; Zoula v. United States, 5 Cir., 1954, 217 F.2d 81 and Ritzman v. Trent, D.C.E.D.N.C.1954, 125 F.Supp. 664.
It is clear from a reading of the above cases that while all use the Brooks and Feres decisions as the basis for the results reached, the different courts stress varying phases of the two cases. Some stress the exact location of the plaintiff at the time of injury and others whether the serviceman was on pass, furlough or leave at the time of the injury. Some cases attempt to analyze the relationship of the Brooks and Feres cases and to determine to what extent Feres may have overruled Brooks. I consider the Brooks and Feres cases to be entirely consistent; in fact, they complement each other, for only when read together does the ruling of the Supreme Court on this point become clear.
In the recent case of Brown v. United States, 1954, 348 U.S. 110, 75 S. Ct. 141, 144, 99 L. Ed. 139, the court pointed out that the Brooks case had not been overruled and it stressed that the distinction in the two cases was 'between injuries that did and injuries that did not arise out of or in the course of military duty.'
In Rich v. United States, D.C., 144 F.Supp. 791, Chief Judge Kirkpatrick of this District pointed out that the determinative factor in each case must be: whether what the serviceman was doing at the time of the injury was, in the language of the Feres case, 'in the course of activity incident to service'. Rich, a patient in the military hospital at Fort Bragg, N.C., had been granted a convalescent furlough which was to become effective Monday, November 5. On November 3rd he left the hospital on a week-end pass. That evening, in company with a friend, he made a number of trips from camp to nearby Fayetteville. His companion was to meet his wife on a bus that arrived at Fayetteville at 2:00 A.M., November 4, and did so. They were all returning to camp when Rich was injured in an accident with an Army vehicle. Holding that Rich was entitled to maintain a suit under the Federal Tort Claims Act, Chief Judge Kirkpatrick noted that the record was silent as to whether or not Rich intended to remain at camp that evening, and stated:
'He was, of course, in the general neighborhood of the camp, but, if one inquires what he was actually doing at the time, the answer would probably be that he was merely killing time until he could pick up his furlough and leave the camp on Monday morning. A different question might have been presented if he had been returning to camp at the end of his free time to report for duty * * *'
The Government emphasizes this statement of Judge Kirkpatrick and argues strenuously that it is entitled to judgment. I cannot agree with this contention.
Knecht was away from the Base on a pass, his time was his own and his activities were not controlled by his military status. True he was returning to the Base and he was probably returning at that given time for the purpose of getting a few hours sleep before having to report for duty at 8 A.M. that morning. Any justification for holding that this activity was 'in the course of activity incident to service' merely because 'activity incident to service' was to follow at 8 A.M. would necessarily be based only upon the fallacy 'post hoc, ergo propter hoc'. I, therefore, conclude that the plaintiff is entitled to maintain this action.
The last and most difficult question to be decided is what amount, if any, plaintiff is entitled to recover. Alaska has a Wrongful Death Statute, 3 C.L.A. 61-7-3, as amended, Laws 1949, c. 89, which limits recovery to $ 15,000; Pennsylvania does not. The plaintiff contends that the $ 15,000 limitation is not applicable to this suit brought in the Eastern District of Pennsylvania. With this I cannot agree. The Federal Tort Claims Act provides that the United States shall be liable for death caused by the negligent act of a Government employee 'in accordance with the law of the place where the act or omission occurred.' It would appear, therefore, that Alaskan law applies for it is the place 'where the act or omission occurred' in the words of the statute. However, I need not now determine as a question of statutory construction whether the phrase 'in accordance with the law of the place where the act or omission occurred' refers to the fact of negligence or the measure of money damages -- Because, even if that phrase is construed most favorably to plaintiff, and I do not decide that it should be, there still remains the Conflict of Laws question as to whether Alaskan law or Pennsylvania law applies. Although this Court has jurisdiction, the amount of damages recoverable should not be any different than otherwise recoverable merely because venue lies in Pennsylvania. The measure of damages recoverable in a tort action is governed by the law of the place where the cause of action arose and not by the choice of the forum. 11 American Jurisprudence, 185, and cases cited therein. See also Northern Pacific Ry. Co. v. Babcock, 1893, 154 U.S. 190, 14 S. Ct. 978, 38 L. Ed. 958, and Curtis v. Campbell, 3 Cir., 1935, 76 F.2d 84. While there is some division of authority as to whether or not a state which has a limitation on the amount of recovery should allow recovery in excess of that amount because a greater amount is allowed by the law of the place of the injury, there can be no doubt as to the limit of the amount recoverable where the place of the injury has the limitation and the forum in which suit is brought does not. Goodrich on Conflicts, Third Edition, § 91. Applying the lex loci, plaintiff herein is limited to $ 15,000 recovery.
Under the facts established in this case the Court makes this additional Finding of Fact. The pecuniary losses, which is the measure of recovery under the Alaskan Death Statute, supra, resulting from the death of plaintiff's decedent, William J. Knecht, are $ 55,000. The decedent had an expectancy of 43.88 years and a potential earning capacity in excess of $ 80 per week within a relatively short time. That the much greater part of his earnings would have been expended upon his wife and child than on himself is a reasonable assumption. The Court feels, therefore, that the resultant losses to his family reduced to present value total the aforementioned amount, viz. $ 55,000.
The suit herein is based upon negligence and the right to recover for death due to negligence under the Alaskan Statute, supra, no matter how great the loss, is limited by that Statute to $ 15,000. Inferentially in his brief plaintiff's counsel concedes that the Government might possibly be entitled to a set off. He argues, however, that that set off should be applied against the upper bracket of any recovery and not against the first $ 15,000. With this contention I cannot agree.
It is clear from the statement made in the Brooks case, supra, and the cases of Snyder v. United States, D.C.1953, 118 F.Supp. 585 and United States v. Gray, 10 Cir., 1952, 199 F.2d 239, that the Government is entitled to set off from any recovery for death under the Federal Tort Claims Act payments made by the Government to survivors under the provisions of 38 U.S.C.A. § 700 et seq., supra, and Veterans Regulations No. 1(A), 38 U.S.C.A. Chapter 12A following section 745, supra. While there is nothing in these sections or in their legislative history which would indicate that Congress intended that any amounts paid under those sections must be deducted from an award of damages under the Federal Tort Claims Act, under general principles of equity, the United States should not be treated differently than any other private litigant and should not be compelled to pay twice for an element of damages. Congress in its wisdom has seen fit to provide payment to this bereaved family of a sum not less than $ 16,075. The limitation of recovery in the Alaskan Statute to $ 15,000 prevents an award of damages in this case in excess of that amount, which sum for the foregoing reason must be subject to set off of the amounts paid and to be paid under the provisions of 38 U.S.C.A. § 700 et seq., supra. Government witnesses have testified, and it is undisputed, that the minimum amount to be paid to Knecht's widow and child is $ 16,075. It is also undisputed that should the widow and child live their normal life expectancies, they may receive as much as $ 60,000. The practical question arises as to whether this plaintiff, the Administrator, under these circumstances is entitled to any verdict whatever. I hold that he is entitled to a general verdict in the sum of $ 15,000 against which the Government may off set the amounts already paid and to be paid under the provisions of 38 U.S.C.A. § 700 et seq.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject matter of this suit.
2. Airman William J. Knecht, a member of the Armed Forces of the United States, at the time of the accident resulting in his death, was not then engaged 'in a course of activity incident to military service'.
3. The plaintiff is entitled to maintain this action under the Federal Tort Claims Act.
4. The plaintiff is entitled to a verdict in his favor in the sum of $ 15,000.
5. The United States is entitled to set off against the above entitled verdict, the amounts of money already paid, and such amounts of future payments as it must make in the nature of compensation payments under 38 U.S.C.A. § 700 et seq. up to the aforesaid sum of $ 15,000.
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