178 F.2d 518 (4th Cir. 1949), 5815, Jefferson v. United States

Docket Nº:5815.
Citation:178 F.2d 518
Case Date:December 19, 1949
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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178 F.2d 518 (4th Cir. 1949)




No. 5815.

United States Court of Appeals, Fourth Circuit.

December 19, 1949

Reargued Nov. 8, 1949.

Writ of Certiorari Granted March 13, 1950.

Morris Rosenberg, Baltimore, Md. (Robert H. Archer, Jr., Baltimore, Md., on the brief), for appellant.

Morton Hollander, Attorney, Department of Justice, Washington, D.C. (H. G. Morison, Assistant Attorney General, Bernard J. Flynn, U.S. Attorney, James B. Murphy, Assistant U.S. Attorney, Baltimore, Md., Paul A. Sweeney and Massillon M. Heuser, Attorneys, Department of Justice, Washington, D.C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This suit was brought by a member of the armed forces of the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 2674 et seq., to recover for personal

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injuries resulting from a surgical operation performed by an army surgeon at Fort Belvoir, Virginia. It was found by Judge Chesnut at the trial in the District Court, 77 F.Supp. 706, that a towel used during an operation had been left in a surgical wound through the negligence of government employees at the hospital, and in consequence the plaintiff had suffered serious injuries for which $7, 500 would be an appropriate verdict if the case were tenable. The judge held, however, that the statute was not intended to cover claims by members of the armed forces of the United States for service connected injuries suffered while in the service. He therefore dismissed the case on motion of the United States and this appeal followed.

In the meantime the Supreme Court, upon an appeal from this court, rendered its decision in Brooks v. United States, 337 U.S. 49, 69 S, Ct. 918, in which it held that two soldiers riding in their own automobile while on leave were entitled to recover for injuries received when they were struck by a United States Army truck driven by a civilian employee of the Army. That decision established that members of the armed forces of the United States can recover under the Federal Tort Claims pact for injuries not incident to their service, but left open the question whether the statute also covers claims by service men for injuries incident to their service. The court said: 337 U.S.pages 52-53, 69 S.Ct.page 920. The government envisages dire consequences should we reverse the judgment. A battle commander's poor judgment, an army surgeon's slip of hand, a defective jeep which causes injury, all would ground tort actions against the United States. But we are dealing with an accident which had nothing to do with the Brooks' army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks; service, a wholly different case would be presented. We express no opinion as to it, but we may note that only in its context do Dobson v. United States, 2 Cir., 27 F.2d 807, Bradey v. United States, 2 Cir., 151 F.2d 742, and Jefferson v. United States, D.C. 77 F.Supp. 706, have any relevance. See the similar distinction in 31 U.S.C. § 223b, 31 U.S.C.A. § 223b. Interpretation...

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