The opinion of the court was delivered by: BECKER
I. FACTS AND PROCEDURAL HISTORY.
Plaintiff alleges that decedent, her late husband, then a Radioman on active duty with the United States Navy, died because of the negligence of the personnel of the Philadelphia Naval Hospital. The facts established by the record are essentially as follows:
Radioman Schwager was admitted to the Philadelphia Naval Hospital on March 12, 1966 suffering from a bleeding stomach ulcer. He had suffered the malady while at home on leave and was taken to the Albert Einstein Medical Center, Southern Division, in Philadelphia, where he was refused admittance because he was a member of the United States Navy. Schwager's wife (administratrix) then called the Naval Hospital, which sent an ambulance to Albert Einstein hospital to transport her husband to the Naval Hospital, where he was admitted the same day. Radioman Schwager died March 31, 1966, following unsuccessful treatment.
The present suit was instituted against the United States on January 9, 1967. An Answer was filed on April 13, 1967, and on December 7, 1967, the Government filed a Motion for Summary Judgment, claiming immunity from suit under the Federal Tort Claims Act as interpreted by the Supreme Court in Feres v. United States, supra. That motion was denied by Judge Harold K. Wood in Schwager v. United States, 279 F. Supp. 262 (D.C. 1968). Inter alia, Judge Wood stated:
"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.
* * * 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." Id. at 264.
The record in the case has now been completed by the addition of the Certified United States Navy Records. They show that Schwager was charged for one day of leave (March 11, 1966), after which he was transferred to active duty at the Naval Hospital. The Records recite that the transfer was for Temporary Duty Under Treatment, pursuant to Naval Personnel Regulation 15909A, pars. 21.2, 21.3. The transfer refers to a reporting date of March 12, and became effective on March 21, 1966, ten days prior to Schwager's death.
The record, for purposes of consideration of a summary judgment motion being completed, the Government renewed its motion on September 22, 1970 and we have heard argument on same.
II. THE Feres principle -- the supreme court cases.
Considering the relationship between the Government and members of its armed forces, the Court characterized that relationship as being "distinctively federal in character". Amplifying on this statement in United States v. Muniz, 374 U.S. ...