and caused further damage through their negligence.
The reasoning given for the Feres decision has frequently been questioned and has in fact been felt to have been eroded.
The lower Federal Court cases have attempted some reconstruction of the policy reasons for the rule and have reached varying results on occasion.
Some have emphasized the necessity for military discipline while others have also been impressed by the availability of a comprehensive compensatory system.
Recovery has been precluded in cases where a comprehensive compensatory system is available and where the United States had a special relationship with the claimant differing from that of the ordinary citizen.
In the future, that may become the prevailing rationale adopted either by the Supreme Court or Congress, where soldiers are suing. However, an automatic bar has not been leveled against the soldier and the Feres case was explained plausibly in United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963) and United States v. Brown, 348 U.S. 110, 112, 75 S. Ct. 141, 143, 99 L. Ed. 139 (1954) as necessary because of the "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty * * *"
The test itself has been elusive to define and apply. The Supreme Court did not explain precisely how the three cases in Feres were incident to military service. The rule extends obviously beyond the case where a soldier is acting in a combat or training situation or when acting pursuant to military orders or where military discipline is essential. Generally, the cases seem to have applied a "but for" test, determining if in fact because of the military service, a serviceman was involved in an accident.
The test is not applied blindly however, but calls for a certain degree of proximation of the serviceman's activities to the military.
The result depends on an analysis of the relevant links between the "activity" and the service, and requires a measuring of the degree to which the activity is divorced from or related to military service. The courts have generally narrowly construed Brooks and have allowed recovery almost virtually only in automobile cases in relatively unambiguous situations. See 64 A.L.R.2d 679.
The motion for summary judgment must be denied. We cannot say on this record when drawing all reasonable inferences in favor of plaintiff, that reasonable men could not differ. Mere active service is not enough. It was brought out at the argument that Schwager was on leave, got sick at home, was brought first to a civilian hospital and then transported to the Naval Hospital. Whether his presence in a probable military context was incidental to military service will better be determined after it is learned the base to which assigned, his military status at home and in the hospital, the reason for his being transported to a naval hospital and possibly who was the negligent person, if any.
It is possible for the Government to argue plausibly that the reasons given in Brown for the rule will be obtained here by granting summary judgment. However, the burden of proof is on the moving party on this motion and we cannot draw reasonable inferences in its favor. The chain of events relating to military service in Schwager's life seem to have been broken. There was no pattern which led him from his base to a hospital on base as in Feres.
Buer v. United States, 241 F.2d 3, 64 A.L.R.2d 674 (7th Cir.1956) is the closest analogy to this case of which we are aware. While recovery was precluded, plaintiff therein was a member of the Armed Forces stationed at the base and under the relevant army regulations was no longer on leave.