568 F.2d 1135
Mark E. MASON, Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.
United States Court of Appeals,
March 2, 1978.
Donald B. Dailey Jr., Corpus Christi, Tex., for plaintiff-appellant.
Sula Baye, Asst. U. S. Atty., J. A. Canales, U. S. Atty., Helen M. Eversberg, Asst. U. S. Atty., Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before MORGAN, CLARK, and TJOFLAT, Circuit Judges.
Mark Mason, a petty officer in the United States Navy, filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., to recover damages for bodily injuries alleged to have been caused by the negligence of a Navy seaman. Mason was injured when the motorcycle he was driving was struck by a car driven by Fredrick Frazier, a seaman who was on active duty and acting within the scope of his duties. The accident occurred on the grounds of the Naval Air Station at Corpus Christi, Texas. At the time of the accident Mason was on active duty rather than furlough. He had been relieved from his routine naval duties, however, and was tending to personal business on his way home. The district court reluctantly granted summary judgment for the United States on the basis that the injury was "incident to service" within the meaning of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and its progeny.
Whether a serviceman can maintain an action under the Federal Tort Claims Act depends upon whether the injuries arose out of activity incident to service. Compare Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) (the government may be liable under the Federal Tort Claims Act if a serviceman is injured while engaged in activity not incident to service), with Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) ("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"). In Zoula v. United States, 217 F.2d 81 (5th Cir. 1954), this circuit read Feres as limiting Brooks to its facts and held that active-duty servicemen involved in an automobile accident on the military base were engaged in activity incident to service. At the time of the accident, the servicemen were dressed in civilian clothes and were tending to personal business in preparation for a weekend pass. Although the Supreme Court two weeks later recognized the continuing validity of Brooks, United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), recent cases indicate that the holding of Zoula is still valid precedent. See Thomason v. Sanchez, 539 F.2d 955 (3d Cir. 1976); Camassar v. United States, 400 F.Supp. 894 (D.Conn.1975), aff'd 531 F.2d 1149 (2d Cir. 1976); Coffey v. United States, 324 F.Supp. 1087 (S.D.Calif.1971), aff'd 455 F.2d 1380 (9th Cir. 1972); cf. Shults v. United States, 421 F.2d 170 (5th Cir. 1969) (serviceman's death allegedly caused by medical malpractice in treating injuries resulting from an off-base accident while the serviceman was on 48-hour liberty arose out of and in the course of activity incident to service since he would not have been in the Navy hospital but for his military status). But see Downes v. United States, 249 F.Supp. 626 (E.D.N.C.1965). Since Mason was both on active duty status and on the premises of the Naval Air Station at the time of the accident, he was engaged in activity incident to service. That he had been relieved from his routine duties is not determinative. While on active duty and on the base, Mason was still subject to all military regulations and discipline and was readily available for emergency service or temporary duties.