Van Sickel v. United States

This action is brought by the widow and children of Acting Sergeant Donald Francis Van Sickel, U. S. Marine Corps, deceased, and damages are claimed under *792 the Tort Claims Act for the death of Sgt. Van Sickel. It is alleged that the death occurred as a result of the negligent treatment he received from government doctors while he was a patient in the U. S. Navy Hospital at Camp Pen-dleton, California. That when he entered the hospital he was in active service of the United States.

The Government has moved to dismiss the Amended Complaint on the ground (1) that the complaint fails to state a claim against the defendant upon which relief can be granted, and (2) that the Court lacks jurisdiction of the subject matter because the claim is not one included within the provisions of the Federal Tort Claims Act. Defendant cites Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 as its chief authority.

Plaintiffs in their briefs state that they were aware of the Feres case and its portent before the action was instituted, and that it is their desire to obtain a review by the Supreme Court of matters leading up to the decision in such case. Plaintiffs do not admit,…