Alred v. Camp Irwin Non-Commissioned Officers' Open Mess

BARNARD, P. J.

In this action for damages the respondent Officers’ Open Mess, one Currier who was alleged to be its executive agent, and one Marvin, were named as defendants. The original complaint alleged that the respondent is a voluntary unincorporated association operating recreational and social activities at Camp Irwin, California; that the appellant was a patron and guest of the respondent; that he was injured as the result of an assault by one Marvin; that the respondent knew that Marvin had become intoxicated and belligerent, thereby creating a hazard to all patrons of the Mess; and that the respondent, although it had ample opportunity to warn the appellant of the danger, failed to use ordinary care to make the premises safe for the appellant, failed to warn the appellant of the danger, and failed to take any action to restrain or remove Marvin.

Demurrers to the original complaint and to the first amended complaint were sustained with leave to amend. A second amended complaint was then filed containing the added allegations that this Non-Commissioned Officers’ Mess was established pursuant to the provisions of Army Regulations 210-50 and 210-60; that the appellant was an associate member of this Officers’ Mess; and that, by virtue of the Army regulations and the constitution of the Mess, he had only the right to use the facilities of the Mess as a business invitee and had no right to ownership, control or management of the Mess. The respondent Open Mess filed a demurrer to the second amended complaint, which was sustained without leave to

[573]

amend. Judgment was then entered that the plaintiff recover nothing from this respondent. This appeal followed.

The main question presented is whether the respondent, as an instrumentality of the United States government, is entitled to immunity from such a suit as this, in the absence of consent by the government to the bringing of such suit. It is conceded that the Federal Tort Claims Act of 1946 (28 U.S.C.A. §§ 1346-B, 2671-2680) is not applicable since the jurisdiction for a suit permitted by that act is in the federal courts. The appellant contends that the mere fact that the respondent is a government instrumentality is not decisive as to its immunity from this suit, since many government instrumentalities and agents have been held liable to suit in tort actions. It is argued that where the conduct of an officer or agent is such as to create a personal liability the fact that he is such an officer or agent of the United States does not prevent the court from taking jurisdiction of a suit against him; that when Army Regulations 210-50 states that Open Messes are entitled to the immunities and privileges of government instrumentalities it must be taken as recognizing the usual tort liability of such agents and instrumentalities; that since these Army regulations also provide that Open Messes shall carry public liability insurance it must have been contemplated that a separate action may be brought against the Mess itself; and that where the judgment sought will not require action by the sovereign or disturb the sovereign’s property there is no jurisdictional difficulty. The appellant relies on