Three enlisted men, White, Jones and Webster, disassembled and disarmed a hand grenade and put it in White's laundry bag, which also contained two live grenades. White denied knowledge of the live grenades. White, accompanied by Webster and Jones, went to a tent occupied by others, drew out a grenade, and dropped it on the floor. The grenade exploded and killed one marine, and Smith, Jones, and others were wounded. White stated that he went to the tent for the purpose of playing "a trick" on the persons in the tent. There was no direct evidence that Jones or Webster knew of the nature of the intended “trick”.

Held that:

if it could have been reasonably foreseen that death or injury would be likely to result from White's jest, the trick would be the proximate cause of his own injuries. Accidents resulting from horseplay with "unloaded" weapons are too frequent to be considered unforeseeable. It must, therefore, be concluded that White's trick was the proximate cause of his injuries. Furthermore, fatal "horseplay" with firearms or weapons is wrongful conduct and therefore injury resulting therefrom is the result of misconduct (CMO 1, 1944, 142; CMO 3, 1943, 73; CMO 5, 1946, 198). Accordingly, White's injuries were the result of his own

misconduct.

- a finding of misconduct makes it mandatory that the death, disease or injury in question be found to have been incurred not in the line of duty (0504d, NS MCM).

- although Jones probably was aware of White's intentions, no conclusive evidence was adduced by the investigating officers on that point. A holding of misconduct in the case of Jones would therefore be based upon conjecture. In the absence of sufficient evidence to the contrary, it is presumed that death or disability suffered by a member of the naval service was not the result of his misconduct. In order to overcome this presumption, there must be clear and convincing evidence that the death or injury was the direct result of the victim's misconduct. Mere conjecture is not sufficient. Any reasonable doubt as to the misconduct status shall be resolved in favor of the deceased or disabled person (0504c, NS MCM). Accordingly, Jones' injuries were not the result of his own misconduct. Op JAGN 1952/182. 30 December 1952.

§ 37. Suicide; Self-inflicted Injuries

§ 37.21. Suicide to escape punishment for offense.

An enlisted man stabbed and killed his former fiancee with a knife and then attempted suicide by stabbing himself in the abdomen. He was subsequently convicted of murder in a civil prosecution. Held: When the evidence indicates that the suicidal act was probably motivated by a reason that might prompt a rational person to take his own life, the question of sanity will depend upon the evidence pertaining to the mental competence of the person at the time of the suicidal act, sec 0504f, NS MCM. In the present instance,

the subject enlisted man attempted suicide immediately after committing a most heinous offense. Where suicide is attempted in an effort, through self-destruction, to escape the consequences of a prior act of violence, there is deemed in the absence of affirmative proof of insanity to be sufficient motivation to cause a reasonable man to take his own life. There is no such proof in the instant case. A holding of misconduct is therefore in order. Accordingly, the injuries were incurred not in the line of duty and were the result of the victim's own misconduct. Op JAGN 1953/184. 15 May 1953.

§ 41.1. Generally.

§ 41. Motor Vehicle Accidents

Two servicemen, one the driver and the other a passenger in an automobile, received fatal injuries as a result of an accident. The driver pulled from the eastbound traffic lane across the double white lines indicating a no-passing zone into the westbound traffic lane in an attempt to pass vehicles on a hill crest. Upon reaching the crest of the hill the vehicle collided with an oncoming truck. Held: The death of the driver of the vehicle was incurred not in the line of duty and was the result of his own misconduct. However, the death of the passenger was incurred in the line of duty and was not the result of his own misconduct. The term, gross negligence, as it is applied to determinations of misconduct, is used to denominate that conduct which evidences a reckless disregard for the safety of oneself or for the safety of other persons exposed to its dangerous effects. It is a course of action which demonstrates a reckless disregard of the consequences and constitutes misconduct. A holding of misconduct is in order, if the death, injuries or disease are proximately caused by the victim's own gross negligence. The injuries or death sustained by a passenger as a result of gross negligence of the operator of a motor vehicle are not usually the result of his own misconduct. The passing of automobiles on the crest of the hill by the driver where it was impossible to see oncoming vehicles approaching was negligence so gross and culpable as to imply a reckless and wanton disregard for the safety of life or property. The driver was therefore guilty of misconduct but the facts preclude this misconduct being imputed to the passenger. (Citing CMO 1, 1946, 14; sec 0504b NS MCM; CMO 11, 1946, 365.) Op JAGN 1953/191. 23 November 1953.

[Imputing negligence of driver to passenger, see 5 Am Jur, Automobiles, § 494.]

Driving at excessive speed without lights, see Op JAGN 1952/146, supra § 23.3.

§ 41.3. Operation of vehicle by another.

See 5 Am Jur, Automobiles § 494.

Two enlisted men, B. and M., on authorized leave, were riding in B's car. Each claimed the other was driving, and each professed to know nothing with regard to the events leading up to the acci

dent. It was established that the car was proceeding in excess of the speed limit, and that it suddenly shot to the right and ran into a parked car. At the time of the accident the traffic was fairly heavy, the four-lane highway was straight but, due to rain, it was slippery and visibility was poor. Blood alcohol tests, as interpreted by local civil authorities, indicated that B. was under the influence of alcohol, but that M. was not. Held: The evidence is insufficient upon which to base a determination as to which of the two men was the driver of the automobile at the time of the accident, and insufficient to establish misconduct by either. Although it appeared that B. was somewhat under the influence of intoxicants, and even assuming that he was driving, there was no evidence that he was intoxicated to the extent that his ability was impaired or that intoxication had any causal connection with the accident. While the automobile was traveling at a speed in excess of the legal limit, excessive speed, in itself, constitutes only simple negligence. As the accident occurred on a four-lane highway, divided by a medial strip, and even considering weather and traffic conditions, the speed involved would not constitute gross negligence warranting a finding of misconduct (JAGA 1952/4799, 3 Jan 1952; JAGA 1952/7243, 17 Sep 1952; JAGA 1952/7600, 1 Oct 1952, and cases therein cited). The view has been expressed that where the evidence does not establish that an individual was the driver of an automobile involved in an accident resulting in injury, even though caused by the grossly negligent operation of the automobile, the presumption against misconduct in favor of the individual (par 1c, AR 600–140, 29 Jun 1951) is not overcome (CSJAGA 1950/1353, 9 Feb 1950; JAGA 1950/2492, 28 Apr 1950). Further, unless misconduct of the driver can be imputed to the injured passenger on the basis of evidence establishing that he exercised control over the operation of the vehicle, or the existence of a joint enterprise or the relationship of master and servant, or unless the evidence establishes a failure as a passenger to exercise due care for his own safety, there would be no basis for a finding of misconduct (CSJAGA 1949/8896, 9 Jan 1950; CSJAGA 1950/1353, supra; JAGA 1950/2492, supra; JAGA 1950/3874, 28 Jun 1950; JAGA 1951/3811, 14 Jun 1951. See also JAGA 1952/5799, 18 Jul 1952). In the instant case, if it be assumed that M. was the driver, there is no evidence upon which to base a determination that B., although the owner of the car, exercised any control over the operation (JAGA 1950/2492, supra), nor is there any other basis upon which the negligence of the driver might be imputed to B. Furthermore, there is no evidence to show that as a passenger B. failed to exercise due care for his own safety. it be assumed that B. was the driver, then the same general reasoning would apply to M. and, since the men were on authorized leave at the time, the injuries were incurred in line of duty. JAGA 1953/1726. 20 February 1953.

If

See also Op JAGN 1953/191, supra § 41.1; Op JAGN 1953/190, infra § 41.5, and Op JAGN 1953/142, RES F § 61.7.

§ 41.5. Driving under influence of alcohol.

See 5 Am Jur, Automobiles § 181.

An enlisted man was driving his vehicle at a speed in excess of 80 miles per hour and appeared to drift across the dividing line in the center of the highway. He appeared to put on the brakes and cut his steering wheel to the right to get into the correct lane, but his action caused the vehicle to roll into the path of another vehicle and the two vehicles collided. When the enlisted man was removed from his vehicle he smelled strongly of alcohol and it was the opinion of medical authorities that he was intoxicated at the time of his admission to a hospital shortly after the accident. A blood test, several hours after the accident, showed 1.5 milligrams of alcohol per cubic centimeter of whole blood. The enlisted man was charged by civil authorities with reckless driving. Held: Whether or not a member of the naval service is guilty of misconduct is not determined by criminal proceedings in either a civil or a military tribunal. However, in the present case the enlisted man was driving his vehicle at a highly excessive rate of speed while under the influence of alcohol. Under such circumstances, he exhibited that reckless disregard for the consequences which constitutes wilful recklessness or gross negligence and a finding of misconduct is clearly in order (sec 0504b, NS MCM). Accordingly, the enlisted man's injuries were not incurred in the line of duty and were the result of his own misconduct. Op JAGN 1953/185. 15 May 1953.

A marine corporal accompanied by other marine personnel was returning to his station when the car he was driving straddled a raised center island for 250 feet, then swerved right, traveling diagonally across both downhill traffic lanes for 90 feet, struck the berm, and rolled over and down a 12-foot embankment for 100 feet, killing the driver, and causing the death also of a marine sergeant and injuries to the other passengers. There was substantial evidence that the driver was under the influence of alcohol at the time of the accident, both by testimony of witnesses and clinical blood tests. The evidence showed that immediately before the accident, the car crowded another car toward the shoulder of the highway. Held: The death of the driver was incurred not in the line of duty and was the result of his own misconduct, but the death of the marine sergeant and the injuries to the other passengers were suffered in the line of duty, and not as the result of their own misconduct. To hold that intoxication resulted in an injury or death, there must be affirmative evidence of intoxication (1 CMO 1944, 136-137) and the intoxication must be a proximate cause or at least a contributing factor, of the injury or death (4 CMO 1938, 14(b); 1 CMO 1945, 23-24; 11 CMO 1934, 6; 2 CMO 1945, 61). The mere fact that a person was intoxicated at the time of injury or death is never sufficient, by itself, to show misconduct. (3 CMO 1944, 488-489; 3 CMO 1943, 80-81; 1 CMO 1944, 136-137). Where intoxication is established but a doubt exists that it was a proximate cause or contributing factor, the person involved must be given the benefit of such doubt (2 CMO 1945, 62-63). However, a presumption of responsibility is

raised by evidence that person was operating a motor vehicle while intoxicated (2 CMO 1945, 61), and unless there was an intervening cause over which the driver had no control, the intoxicated driver is guilty of misconduct. However, the injuries or death sustained by a passenger as the result of the gross negligence of the operator of a motor vehicle are not usually the result of his own misconduct (CMO 11, 1946, 365), unless there is interference with the operation of the vehicle by the passenger (CMO 7, 1946, 262) or the passenger is responsible for the proper operation of the vehicle (CMO 2, 1944, 294). In the instant case, the evidence shows either that the car was operated with a reckless and wanton disregard of human life or that the deceased driver was so far under the influence of intoxicating liquor as to be unable to exercise proper judgment as a driver and in either case was guilty of misconduct in the absence of proof that the accident resulted from an intervening cause over which he had no control (CMO 3, 1943, 100, CMO 6, 1937, 14). The evidence shows no such intervening cause. Further, there was no evidence that the passengers at the time of the accident interfered with the operation of the vehicle or that they were responsible for its proper operation. Op JAGN 1953/190. 3 November 1953.

§ 41.7. Illness of driver; falling asleep.

See 5 Am Jur, Automobiles $ 180.

An airman allegedly fell asleep at the wheel of a vehicle which subsequently collided with three parked vehicles. However, there was no evidence of intoxication or that the airman was driving at an excessive speed. Held: The fact that the airman could possibly have fallen asleep and had the accident does not in itself amount to misconduct (see Dig Op JAGAF Vol 1, No. 2, 1949/58, 18 Jul 1949.) Furthermore, the fact that he did not have a driver's license and proper tags on the automobile does not, per se, constitute misconduct. It is only a factor to be considered in the line of duty determination. It is necessary to show that such violations of the law are gross, willful, or wantonly careless and the proximate cause of the injury before a finding of misconduct can be made. (See Dig Op JAGAF Vol 2, No. 1, 1950/42, 23 Mar 1950.) Since no such conduct had been established in this case, the injury of the airman should be in line of duty-not due to misconduct. Op JAGAF 1953/35. 21 September 1953.

§ 41.29. Lack of driver's license or registration of vehicle. See Op JAGAF 1953/35, supra § 41.7.

§ 43.5. Walking along street or highway.

An airman who was in a thoroughly intoxicated condition was observed walking with difficulty down the middle of a well-traveled public highway at approximately 0300 hours. Shortly thereafter he was struck by an automobile, the driver of which stated that the airman was bent over in the middle of the highway, immediately prior to the collision. Held: The possibility of the airman getting