dissenting:
Interpreting the allegations of plaintiffs’ complaint as stating a cause of action for negligence, the majority, in Part II, fails to recognize that the essence of plaintiffs’ cause of action “arises out of” an assault and battery, and thus the school district is exempt under the Idaho Tort Claims Act (ITCA). It is beyond dispute that Durts-chi’s lewd and unconsented touching of the minor plaintiffs constituted a battery. Nevertheless, the majority concludes that plaintiffs’ cause of action “arises out of” or has its roots in negligence, rather than arising out of a battery. This conclusion ignores the express language of the ITCA.
I.C. § 6-904 does not merely exclude liability for assaults and batteries; rather, it states that the governmental entity “shall not be liable for any claim which arises out *481o/assault, battery____” (Emphasis added.) If we attribute to the legislative body an intent to give that term “arises out of assault, battery” its ordinary and traditional meaning, it is clear that plaintiffs’ claims “arise out of” Durtschi’s battery on these children. Durtschi's battery is the sine qua non of appellants’ claim. Appellants’ claim of negligence is without legal significance absent the intentional acts of Durts-chi. As a result, appellants’ claims against the school district “arise out of” Durtschi’s battery and are therefore barred by I.C. § 6-904. “No semantical recasting of events can alter the fact that the battery was the immediate cause of [plaintiffs’ injuries] and, consequently, the basis of [their] claim.” United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985).
The majority’s argument effectively removes from the statute the words “arising out of.” This the majority does without evidence from any extrinsic source indicative of legislative intent to support such a reading of the statute. The logical interpretation of the phrase “arising out of” would employ a common sense meaning, i.e., “based upon” an assault or battery, or “having its roots in” an assault or battery.
The Idaho Tort Claims Act, I.C. §§ 6-901 et seq., was based upon the Federal Tort Claims Act, and the exception here in question, the assault and battery exception, is identical to that of the Federal Tort Claims Act. In Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980), this Court held that when the Idaho legislature adopted a statute from another jurisdiction it “will be presumed that the legislature adopted the statute with the prior construction placed upon it by the courts of the other jurisdiction.” Odenwalt v. Zaring, supra at 5, 624 P.2d at 387. Hardly a month ago in Leliefeld v. Panorama Contractors, Inc., (filed January 16,1986), (rehearing granted March 26, 1986) we reiterated and described that rule as “a time honored principle to which this Court has faithfully adhered,” repeating the following quotation from Odenwalt:
“ ‘This Court has consistently held that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction. Nixon v. Triber, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979); State v. Miles, 97 Idaho 396, 545 P.2d 484 (1976); Doggett v. Electronics Corp. of America, 93 Idaho 26, 454 P.2d 63 (1969).’ Odenwalt, supra, 102 Idaho at 5; 624 P.2d at 387.” Leliefeld v. Panorama Contractors, Inc., (1986).
As Leliefeld instructs, our analysis of the Idaho Tort Claims Act in this case should commence with an analysis of the federal cases interpreting the Federal Tort Claims Act as of 1971, the date when Idaho adopted the federal act.
The Idaho Tort Claims Act passed in 1971 was modeled after the Federal Tort Claims Act, and the “exceptions to governmental liability” set out in I.C. § 6-904, subsection (4), which are involved in this case, are identical to the exceptions set out in Section 2680(h) of the Federal Tort Claims Act. That subsection exempts from the waiver of immunity any claim which:
“4. Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”
Prior to the adoption of the exception set out in I.C. § 6-904(4), the federal courts had unanimously held that the “exception to governmental liability” contained in 2680(h) of the Federal Tort Claims Act, from which I.C. § 6-904(4) was copied, covered cases in which negligence underlies the claims. The United States Supreme Court first addressed that issue in United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), a case involving a claim for misrepresentation under 2680(h), wherein the court stated:
“We are in accord with the views urged by the government, and unanimously adopted by all circuits which have previously had occasion to pass on the ques*482tion, that Section 2680(h) comprehends claims arising out of the negligent, as well as willful, misrepresentation.” 366 U.S. at 702, 81 S.Ct. at 1298. (Emphasis added.)
The United States Supreme Court in United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985), acknowledged that United States v. Neus-tadt, supra, had held that “the exception in Section 2680(h) [the intentional tort exception clause] for claims ‘arising out of ... misrepresentation’ covers cases in which negligence underlies the inaccurate representation.”
Moos v. United States, 225 F.2d 705 (8th Cir.1955), was an even earlier case where a plaintiff brought suit on a negligence theory, based upon an unconsented operation on his right leg, which the court held constituted a battery. The court held that the mere existence of what might be referred to as a separate claim based upon negligence does not negate the existence of the assault and battery, and therefore the claim was barred under the Tort Claims Act. The 8th Circuit Court in Moos adopted the reasoning of “the district court, which we think has clearly demonstrated that the plaintiff’s claim against the government is, under applicable law, one arising out of an assault and battery, of which the court had no jurisdiction under the Tort Claims Act.” The district court in its opinion stated:
“Since the unauthorized operation constituted an assault and battery, any attempt to segregate and separately state a cause of action for negligence is unavailing. The fact of the negligent transfer of the site of operation and the resulting delay in performing the wanted operation ‘arose out of’ the assault and battery and formed an integral part of the entire incident which encompassed the battery. It is immaterial that the negligence may have occurred first in point of time. United States v. Wilcox, D.C.S.D.N.Y., 117 F.Supp. 119. See Duenges v. United States, D.C.S.D.N.Y., 114 F.Supp. 751 (claim arising out of false imprisonment)____” Moos v. United States, 118 F.Supp. 275, 277 (D.Minn 1954).
The facts of Moos are substantially similar to those in this case. In Moos, the unauthorized operation [touching] constituted an assault and battery, as did the unauthor rized touching of the plaintiffs in this case. Also, in Moos the plaintiff was arguing about “the negligent transfer of the site of the operation,” and in this cáse the plaintiffs are alleging the negligent transfer of Durtschi.
Prior to 1971, one other federal circuit court had addressed this issue. In Panella v. United States, 216 F.2d 622 (2nd Cir.1954), the plaintiff, Panella, was an inmate at a federal hospital and was assaulted by another inmate. He sued the United States “claiming that the assault was caused by the negligence of employees of the United States in failing to provide adequate guards and otherwise properly supervise those confined in the institution.” Panella at 623. The United States moved to dismiss on grounds that Panella’s suit was barred by the assault and battery exception to the Tort Claims Act. The Second Circuit, speaking through Judge John Harlan (who only four months later was appointed to the United States Supreme Court), rejected the government’s argument on the grounds that the assault and battery exception did not extend to assaults and batteries committed by non-governmental employees. However, the Court nevertheless made it clear that, had the assault in Pan-ella been committed by a government employee, Panella's action, though framed in the terms of negligence, would have been barred. The Second Circuit’s distinction between assaults committed by government employees as opposed to non-government employees was based on its reasoning that, in the latter instance, “a negligent action is not merely an alternative form of remedy to an action for assault but negligence is rather the essence of the plaintiff’s claim.” Panella v. United States, supra at 624. The Court reasoned with regard to government employees that an assault committed by such an employee *483would give rise to an action against the government without any showing of negligence, and that in such instances the act’s assault and battery exception was clearly intended to exonerate the government from all liability, no matter what the form of the action.
Prior to 1971 a federal district court case, Collins v. United States, 259 F.Supp. 363 (E.D.Penn.1966), addressed this issue. In Collins, the plaintiff’s complaint alleged that on November 15, 1963, an employee of the Post Office, one Brosz, acting in the scope of his employment “pushed, hit and struck” the plaintiff. The complaint further alleged that the United States was negligent in hiring and retaining Brosz in its employ when it knew or should have known of his “violent, vicious and malicious propensities. ” The defendant moved to dismiss, claiming that the plaintiff’s complaint of negligent employment fell within the exception of Section 2680(h) of the Tort Claims Act, i.e., “any claim arising out of assault, battery____”
The Collins court in its opinion, after noting that the plaintiff was arguing that his claim is not founded on the assault and battery, but rather on the negligence of the government in employing who it knew or should have known had “violent, vicious and malicious propensities,” stated:
“It is true that the claim here is predicated on negligence. However, that negli-, gence would have been without legal significance absent the alleged act of Brosz. Without that, there would have been no actionable negligence. It was the attack which served to attach legal consequences to defendant’s alleged negligence. Congress could easily have excepted claims for assault. It did not; it used the broader language excepting claims arising out of assault. It is plain that the claim arose only because of the assault and battery, and equally plain that it is a claim arising out of the assault and battery. This being so, the United States has not waived its immunity as respects this claim.” 259 F.Supp. at 364, emphasis in original.
Thus, at the time that Idaho adopted the Federal Tort Claims Act in 1971, and particularly Section 2680(h) as I.C. § 6-904(4), the federal eases interpreting that act had held that the exemption for intentional torts set out in 2680(h) included not only the intentional tort itself, but any negligence which underlies the intentional tort. Accordingly, if we are to follow the “time honored principle” described in Leliefeld “that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction,” Leliefeld, then we should uphold the district court’s conclusion that plaintiffs’ claim “arises out of assault [and] battery.” I.C. § 6-904(4).
The federal cases which have been decided subsequent to 1971, the year Idaho adopted the Tort Claims Act from the federal act, have continued the same interpretation as those decided before 1971. The most recent, and of course the final and ultimate- authority is the recent decision of the United States Supreme Court in United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). In that case, the United States Supreme Court was asked to review a wrongful death judgment, on two grounds, one of which was that the claim was barred by the assault and battery exception of the Federal Tort Claims Act. In Shearer, the mother of an Army private, Vernon Shearer, brought an action against the Army alleging that the Army’s negligence caused her son’s death. Private Shearer, while off duty and away from the military base, was kidnapped and murdered by another serviceman, Private Andrew Heard. Mrs. Shearer alleged that the Army knew that Private Herd was dangerous; he had been convicted by a German court of manslaughter and sentenced to a 4-year prison term while assigned to an Army base in Germany in 1977. As in the present case, Mrs. Shearer alleged that in spite of such knowledge the Army transferred Private Heard to the military base where her son was subsequently *484murdered. [Note the similarity to the plaintiffs’ claims in this case.] Mrs. Shearer claimed that the Army “negligently and carelessly failed to exert a reasonably sufficient control over Private Herd and failed to warn other persons that he was at large.” 105 S.Ct. at 3041.
The Court of Appeals had held that Mrs. Shearer’s suit was not precluded by the assault and battery exception to the Federal Tort Claims Act. The Court of Appeals reasoned, similar to the majority in the present case, that Mrs. Shearer’s complaint alleged negligence and that “if an assault and battery occurred as a ‘natural result’ of the government’s failure to exercise due care, the assault and battery may be deemed to have its roots in negligence and therefore it is within the scope of the FTCA.” Shearer v. United States, 723 F.2d 1102, 1107 (3rd Cir.1983). Additionally, the Court of Appeals ruled that Mrs. Shearer’s claim was not precluded by the Feres doctrine which holds that military command judgments are exempt from the waiver of immunity under the Tort Claims Act and are therefore not actionable. The United States Supreme Court in Shearer reversed the decision of the Court of Appeals.1 In the Shearer opinion, Chief Justice Burger, speaking for a plurality of four, rejected the Court of Appeals’ reasoning regarding the assault and battery exception, stating that it was clear that Mrs. Shearer’s claim “arises out of the battery committed by Private Herd ... [and that she] cannot avoid the reach of [the assault and battery exception] by framing her complaint in terms of negligent failure to prevent the assault and battery.” 105 S.Ct. at 3042. The Court’s opinion held that the assault and battery “does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery.” Id. (emphasis in original). Thus, the assault and battery exception covers claims similar to plaintiffs’ claim in the present case that, although sounding in negligence, actually stem from a battery committed by a government employee. “ ‘The express words of the statute’ bar [such] claim[s] against the government.” Shearer at 3042, citing United States v. Spelar, 338 U.S. 217, 219, 70 S.Ct. 10, 11, 94 L.Ed. 3 (1949).
The Supreme Court found further support for its reading of the exception in the legislative history of the act and from its cases interpreting other exceptions to the act. The Court noted that there was no indication that Congress distinguished between “negligent supervision” claims and respondeat superior claims, with only the latter excluded under the act. And regarding interpretation of similar exceptions, the Court stated:
“In United States v. Neustadt, 366 U.S. 696 [81 S.Ct. 1294, 6 L.Ed.2d 614] (1961), the Court held that the exception in Section 2680(h) [the intentional tort exception clause] for claims ‘arising out of ... misrepresentation’ covers cases in which negligence underlies the inaccurate representation. And in Kosak v. United States, ... [465 U.S. 848] 104 S.Ct. 1519 [79 L.Ed.2d 860] (1984), we held that the exception for claims ‘arising in respect of ... the detention of any goods or merchandise by any officer of customs’ includes a claim for negligent handling. Because Congress viewed these exemptions in the same light as the exception at issue here [the assault and battery exception], see, e.g., H.R.Rep. No. 1287, 79th Con., 1st Sess., 6 (1945), it is inescapable that the phrase ‘arising out of assault or battery' is broad enough to encompass claims sounding in negligence.” Shearer, 105 S.Ct. at 3043.
Seven United States Courts of Appeals have addressed the assault and battery exception, and all have held that the govern*485ment is not liable for claims such as those asserted by plaintiffs in this case.2
In a case factually similar to the one before us, Hughes v. United States, 662 F.2d 219 (4th Cir.1981), the Fourth Circuit held that a claim against the government based upon illegal sexual conduct was barred under the assault and battery exception even though the complaint was framed in the terms of negligence. In the Hughes case, a postal employee had taken indecent sexual liberties with two minor female children. Plaintiffs, sued the postal service alleging that it negligently retained the individual in its employ, despite his having been arrested and charged with a similar offense five years prior to the occurrence of the alleged conduct in the present case. The district court rejected plaintiffs’ claim on grounds that it was barred by the assault and battery exception. The court noted, “There would have been no assault except for the separate and independent acts [of the employee]. Without his independent assault, there would be no cause of action. It is to this action the statute does not waive immunity.” Hughes v. Sullivan, 514 F.Supp. 667, 670 (E.D.Va.1980). The Fourth Circuit affirmed (per curiam), finding no error of law in the district court’s reasoning.3
The Tenth Circuit has likewise held that a claim against the government for its antecedent negligence in retaining or supervising its employees may be barred by the assault and battery exception if the underlying facts indicate that the theory of negligence is but an alternative theory utilized by a plaintiff to circumvent the Tort Claims Act’s exceptions. In Naisbitt v. United States, 611 F.2d 1350 (10th Cir.1980), the court upheld a district court’s dismissal of plaintiff’s action against the government based upon the trial court’s reasoning that “[h]ere ... government liability is possible only because government employees committed the intentional act. Thus, although plaintiff’s complaint is drawn in terms of negligence, the essence of the cause of action is an assault and battery committed by two individuals who were government employees at the time of the wrongful acts. The claim arises only because of the intentional wrong committed by employees of the sovereign and is, therefore, a claim ‘arising out of’ an assault and battery and is within the scope of [the] exception. Plaintiff's negligence the*486ory is, in this case, merely an alternative theory of liability.” 611 F.2d at 1352-53 (citations omitted).
The District of Columbia Circuit has likewise held that “a litigant cannot circumvent the [Tort Claims Act] by the simple expedient of drafting in terms of negligence a complaint that in reality is a claim as to which the United States remains immunized.” Johnson v. United States, 547 F.2d 688, 691-92 (D.C.Cir.1976).
Finally, the Fifth Circuit, in a recently released opinion, has held that a claim alleging negligence in the supervision of a governmental employee is nonetheless barred by the Tort Claims Act when the substance of the claim is grounded on the underlying illegal sexual conduct committed by said employee. In Garcia v. United States, 776 F.2d 116 (5th Cir.1985), the court, noting the Supreme Court’s decision in Shearer, held plaintiffs claim alleging negligence in the supervision of a military recruiter who allegedly engaged in sex acts with plaintiff, was barred by the assault and battery exception to the FTCA. The court held that the “arising out of” language in its context was straightforward, and that “even if there were ambiguity or uncertainty of application inherent in the language of the proviso, it would not alter the result. The government’s waiver of sovereign immunity is to be narrowly read. That principle requires that in reading this proviso to the sovereign’s consent to suit any ambiguity is to be resolved against consent.” 776 F.2d at 118 (emphasis added.) Based on this reasoning, the court concluded that the government had not consented to suit under the facts of the case before it.4
Of the cases relied upon in the majority opinion in support of their interpretation of I.C. § 6-904(4), none of them were decided prior to 1971, the year that Idaho adopted the analogous provision from the Federal Tort Claims Act. Accordingly, under our recent decision in Leliefeld, they are not to be considered in determining what the interpretation of the federal act was at the time that our legislature adopted it. Furthermore, of the cases cited in the majority opinion, only three are federal cases. Two of them, Liuzzo v. United States, 508 F.Supp. 923 (E.D.Mich.1981), and Loritts v. United States, 489 F.Supp. 1030 (D.Mass.1980), are district court cases, which, because of subsequent decisions in their circuits are of questionable value. The circuit court of appeals for both those courts have adopted reasoning which seriously undercuts the rationale of the Loritts and Liuzzo courts. In Jimenez-Nieves v. United States, 682 F.2d 1 (1982), the First Circuit, in addressing a claim against the government based on negligent acts committed by employees of the Social Security Administration, stated, “In examining a complaint we are bound to look beyond the literal meaning of the language used to ascertain the real cause of the complaint." Id. at 6 (emphasis added), citing Fitch v. United States, 513 F.2d 1013 (6th Cir.1975). In construing the cause of action before it, the Jimenez court found plaintiff’s complaint to state causes of action based on defamation (libel or slander). As such, the court noted, “Plaintiff’s claim fits ‘the traditional and commonly understood legal definition of the tort of defamation,’ ” 682 F.2d at 6, and as such it was barred by the intentional tort exception of the Federal Tort Claims Act. The First Circuit expressly declined to follow contrary authori*487ty out of the Third Circuit which had held that plaintiffs stating a claim for defamation, if also utilizing the language of negligence, were not precluded from bringing their action by the intentional tort exception to the FTCA. “We decline to follow the Third Circuit in this case because we do not believe that the fact that the defamation is caused negligently makes it any the less a defamation.” 682 F.2d at 6. Thus, the rationale of Loritts is undermined.
In Fitch v. United States, 513 F.2d 1013 (6th Cir.1975), the Sixth Circuit likewise held, “Although [plaintiffs] cast their complaint in the guise of a negligence action, this does not automatically take the case outside the [intentional tort] exception. Courts must look beyond the literal meaning of the language to ascertain the real cause of complaint.” 513 F.2d at 1015. This language from the Sixth Circuit seriously undercuts the rationale of the district court in Liuzzo.
The third case, Gibson v. United States, 457 F.2d 1391 (3rd Cir.1972), involved an assault and battery by a non-governmental employee, and thus the analysis of the 2nd Circuit Court of Appeals in Panella, supra, would be applicable. In any event, none of those cases was in existence at the time that Idaho adopted the Federal Tort Claims Act in 1971, and therefore, as we pointed out in Leliefeld, they are not involved in our determining the legislative interpretation of I.C. § 6-904(4). Furthermore, they have all been displaced by the plurality opinion of the United States Supreme Court in United States v. Shearer, supra. As recently observed by the Fifth Circuit Court of Appeals in Garcia v. United States, 776 F.2d 116 (1985),
“[W]hile only four Justices in Shearer joined the language interpreting the ‘arising out of proviso, the other four Justices did not reject its applicability but joined the decision to reverse on another ground. Such an intervening decision might not be sufficient to free this panel from clear circuit precedent, but it is sufficient to allow our retreat from Underwood and its reasoning, now so seriously questioned. We cannot ignore this strong signal rom the Supreme Court.” 776 F.2d at 118.
Thus, it is clear that, both prior to and after 1971, the interpretation placed upon the language “arises out of assault, battery, ...,” in Section 2680(h) of the Federal Tort Claims Act refers not only to the intentional torts listed in that subsection, i.e., “assault, battery, false imprisonment, ... misrepresentation,” etc., but also to any underlying negligence which may occasion those intentional torts. Accordingly, the “time honored principle” to which we have just paid “unwaivering adherence” in Leliefeld, supra, “that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction,” should be applied in this case also, and the district court should be affirmed. As was recently stated by the United States District Court for South Carolina:
“The plaintiff argues that his claim is not founded upon assault and battery, but rather upon the negligence of the government. Ever since the passage of the FTCA, litigants have tried to circumvent its exceptions by alleging that harm was caused not by the act for which sovereign immunity remained a bar, but rather by antecedent negligence. These attempts generally failed because the courts spoke to the essence of the claim and ignored the attempts of the plaintiff to characterize it in another way.” Taylor v. United States, 513 F.Supp. 647, 649-50 (D.S.C.1981).
In this case the district court was correct in its conclusion that the plaintiffs’ claims arise out of the battery committed by Durtschi and, accordingly, the defendant school district was not liable for those claims. The district court’s order awarding summary judgment on that basis was correct and should be affirmed.
SHEPARD, J., concurs.. Only eight justices sat. Of those eight, all joined the opinion regarding the Feres doctrine, and four joined the opinion regarding the FTCA assault and battery issue, but of the four not joining in that part of the opinion, none dissented in the assault and battery issue.
. The cases which have adopted the interpretations which are at odds with that of the majority opinion in the present case are out of the Second, Fourth, Fifth, Seventh, Eighth, Tenth and District of Columbia Circuits. See, e.g., Panella v. United States, 216 F.2d 622 (2nd Cir.1954), discussed in text, supra at 1254; Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980), aff’d sub nom. Hughes v. United States, 662 F.2d 219 (4th Cir.1981), discussed in text, supra at 1246; Doe v. United States, 769 F.2d 174 (4th Cir.1985), discussed infra at n. 3; Garcia v. United States, 776 F.2d 116 (5th Cir.1985), discussed in text, infra at 1258; Gaudet v. United States, 517 F.2d 1034 (5th Cir.1975) (court found without merit plaintiffs argument that his claim was grounded in negligence not in an intentional tort, holding that "the substance of the claim and not the language used in stating it ... controls ... [and] no legal alchemy can transform it into a negligence action and confer jurisdiction where there is none.”); Lojuk v. Quandt, 706 F.2d 1456 (7th Cir.1983) (action asserted by plaintiff as a malpractice claim held barred by assault and battery exception in that, despite claim of negligence, i.e., malpractice, facts clearly indicated that doctor’s acts were intentional and constituted an assault and battery); Moos v. United States, 225 F.2d 705 (8th Cir.1955), discussed in text, supra at 1254; Naisbitt v. United States, 611 F.2d 1350 (10th Cir.1980), discussed in text, infra at 1257; Johnson v. United States, 547 F.2d 688 (D.C.Cir.1976), discussed in text, infra at 1258.
The only Court of Appeals which has adopted an interpretation in favor of appellants is the Third Circuit which decided the Shearer case which, as discussed above, was reversed by the Supreme Court.
. The Fourth Circuit has recently reaffirmed its position in Doe v. United States, 769 F.2d 174 (4th Cir.1985), where it held that plaintiffs claim against the government based on the illicit sexual conduct of an Air Force clinical social worker was barred by the assault and battery exception, even though plaintiffs claim was based on a theory of medical malpractice. Cf. Andrews v. United States, 732 F.2d 366 (4th Cir.1984) (action against government based on theory of malpractice not barred by FTCA’s assault and battery exception in that under the facts of case no assault or battery occurred from illicit sexual conduct because female victim consented to said conduct).
. In reaching its conclusion in Garcia, the Fifth Circuit recognized that it was overruling admitted dicta of a prior opinion, Underwood v. United States, 356 F.2d 92 (5th Cir.1966). In Underwood, the Fifth Circuit had intimated that, if presented with facts similar to those found in Garcia, it would have ruled that the assault and battery exception was inapplicable. The court then noted that normally given a 4-4 decision from the Supreme Court it might not "retreat from Underwood and its reasoning." 776 F.2d at 118. However, it felt that the Supreme Court’s decision in Shearer was "a strong signal” regarding the interpretation of the "arising out of’ language of the assault and battery exception. Apparently, the Fifth Circuit felt the signal from the Supreme Court was strong in that, "while only four justices in Shearer joined the language interpreting the ‘arising out of proviso, the other four justices did not reject its applicability____" Id. at 118.