The opinion of the court was delivered by: BRUCHHAUSEN
BRUCHHAUSEN, District Judge.
The defendant moves for summary judgment, dismissing the complaint.
The plaintiff seeks to recover damages pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for personal injuries allegedly sustained by him on November 13, 1962, while he was a patient in the United States Army Hospital at Fort Jay, New York. He claims that a portable telephone stand, due to a defect, tipped over and fell on his foot, injuring it.
The plaintiff was in active service as a member of the United States Military Forces for a number of years until his retirement on July 31, 1951.
The defendant contends that a retired serviceman may not sue under the Federal Tort Claims Act.
The said Act waives sovereign immunity to the extent that an individual, sustaining personal injuries through the negligence of a Government employee while acting within the scope of his office or employment, may institute suit against the Government, provided that it be a case where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The statute contains no express provision, barring claims made by military personnel but there is case law on the subject.
THE GOVERNMENT IS NOT LIABLE TO A SERVICEMAN WHERE HIS INJURIES ARISE OUT OF OR ARE IN THE COURSE OF ACTIVITY, INCIDENT TO SERVICE IN THE MILITARY FORCES.
In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152, the Court considered three appeals, viz.:
Feres, while on active duty, perished by fire in an army barracks;
Jefferson, while on active duty, was operated upon in an army institution and sought damages for malpractice;
Griggs made a like claim.
"The common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to ...