Bradshaw v. United States, 23126

• Decision Date: 11 February 1971
• Docket Number: No. 23126,23130.,23126
• Citation: 443 F.2d 759,143 US App. DC 344
• Parties: Howard V. BRADSHAW and Ona Bradshaw v. UNITED STATES of America, Appellant. Howard V. BRADSHAW and Ona Bradshaw, Appellants v. UNITED STATES of America.
• Court: U.S. Court of Appeals — District of Columbia Circuit

143 US App. DC 344, 443 F.2d 759 (1971)

Howard V. BRADSHAW and Ona Bradshaw v. UNITED STATES of America, Appellant.

Howard V. BRADSHAW and Ona Bradshaw, Appellants v. UNITED STATES of America.

Nos. 23126, 23130.

United States Court of Appeals, District of Columbia Circuit.

Argued June 30, 1970.

Decided February 11, 1971.

Mr. Robert C. Crimmins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellant in No. 23,126 and appellee in No. 23,130. Messrs. Joseph M. Hannon, Roger Zuckerman, Nathan Dodell, and Edwin K. Hall, Asst. U. S. Attys., also entered appearances for appellant in No. 23,126 and appellee in No. 23,130.

Mr. Carlton U. Edwards, II, Washington, D. C., with whom Mr. Ralph H. Deckelbaum, Arlington, Va., was on the brief, for appellants in No. 23,130 and appellees in No. 23,126. Mr. Bernard Margolius, Washington, D. C., also entered an appearance for appellants in No. 23,130.

Before McGOWAN, TAMM, and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

A motorcycle policeman (Bradshaw) of the District of Columbia Metropolitan Police Force, while engaged in the performance of his duty on June 13, 1963, was hit and seriously injured by a bus owned by the United States which was being driven at the time on Government business by an employee of the United States. Following a period of hospitalization, Bradshaw attempted to return to work but he was subsequently found by the Board of Police and Fire Surgeons to be permanently disabled, as a result of the above accident, from performing his duties as a police officer and on March 31, 1964 he was retired from the District Police Force under the provisions of D.C. Code § 4-527(1) (1967),¹ the Policemen and Firemen's Retirement and Disability Act (hereinafter the "Disability Act" and "District Disability Act.") In conformance with the provisions of this statute Bradshaw is presently receiving, and will continue to receive during his entire life, 66 2/3% of the basic salary he was receiving at the time of his retirement. Pursuant to said statute Bradshaw also received medical and hospital treatment² having a value of about $548.

On March 11, 1965, Bradshaw commenced a suit based on negligence against the United States under the Federal Tort Claims Act³ for $100,000 in damages to compensate him for (1) medical services and hospitalization; (2) loss of working time; (3) being required to retire from his job; and (4) for suffering "other losses" which were subsequently specified to include pain and suffering. Ona Bradshaw, his wife, also joined in the suit and claimed damages of $25,000 "for loss of services, society and consortium."

The United States, first in its answer, then in a motion for summary judgment and finally at trial, asserted that the District Disability Act provided Bradshaw's exclusive method of recovery and precluded a suit against the United States under the Tort Claims Act. The trial court held that the existence of the District Disability Act did not preclude a suit against the United States under the Tort Claims Act and found that the accident occurred solely through the negligence of the driver of the Government vehicle. However, the court refused to allow Bradshaw to recover for the value of his medical services and in determining the amount of damages resulting from his projected loss of earnings took two factors into consideration. First, it held that Congress had appropriated some of the money for the retirement (disability) fund and to omit all consideration of that fund would result in at least "partial double payment," and, secondly, it held that wooden reliance on the figure of Bradshaw's present earnings projected to his retirement date would, because of unforeseen exigencies and contingencies, be entirely theoretical and unsafe and be a basis that a jury would not be likely to accept. Following such standards, the court awarded Bradshaw damages of $20,000. We affirm the judgment of the trial court, except we reverse to direct payment also of the value of the medical and hospital services received by Bradshaw.

I. The District Disability Act and the Tort Claims Act

The first issue presented is whether the existence of the benefits available under the Disability Act for the District of Columbia precludes recovery by Bradshaw from the United States under the Federal Tort Claims Act.

Neither the language contained in the exceptions to the Tort Claims Act, 28 U.S.C. § 2680 (1964),⁴ nor the one provision of the Disability Act which deals with exclusivity, D.C. Code § 4-538 (1967) (71 Stat. 400)⁵ provides an answer to the question of whether the Disability Act precludes a suit under the Tort Claims Act. However, the factual situation presented in the instant case is, for all practical purposes, identical to the one presented to this court in the case of Wham v. United States, 86 U.S. App.D.C. 128, 180 F.2d 38 (1950).⁶ There we held that although an injured District of Columbia policeman was entitled to benefits under the District Disability Act, he could nevertheless maintain a suit against the Government under the Federal Tort Claims Act. Questions have arisen concerning whether some of our subsequent decisions and those of the Supreme Court have eroded the holding in Wham or whether it should still be followed. We conclude that Wham is still good law and should be followed here.⁷

In Wham we arrived at the result that we did chiefly for two reasons. The first was that the case of Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) was, in our opinion, directly controlling. In Brooks, a soldier on furlough was injured when the private vehicle in which he was riding collided with a Government truck being operated negligently by a Government employee. Though he was covered by various compensation schemes created by the Government, see 337 U.S. at 53, 69 S.Ct. 918, the Court held that the soldier was entitled to maintain an action under the Federal Tort Claims Act for the injuries he received. In discussing the Brooks case, we said:

We think that decision controls this case. Soldiers on furlough fall within the presumption of being in line of duty and, generally speaking, enjoy the same benefits as soldiers on active duty. * * * In principle, claimants in the Brooks cases and the claimant here must stand on an equal footing before the Tort Claims Act. Each is favored with a special system of benefits by reason of his particular employment. Neither is expressly excluded by said Act. So why, if soldiers (on furlough) directly in the federal service are not excluded, should a policeman directly in the employ of the District of Columbia, a municipal corporation * * * be excluded? We can see no reason for such discrimination.

86 U.S.App.D.C. at 129, 180 F.2d at 39.

The Court in Brooks, however, left open the possibility, later confirmed in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), that soldiers on furlough and soldiers on active duty and operating directly under orders were distinguishable for purposes of the Tort Claims Act. 337 U.S. at 52, 69 S. Ct. 918. Faced in the latter case with suits under the Tort Claims Act by soldiers who had been injured while acting pursuant to orders, and disturbed over the possible effect on military discipline of suits being maintained for injuries resulting from negligently given orders, the Supreme Court held that no recovery under the Tort Claims Act was possible under such circumstances. It distinguished Brooks precisely because the claimant had been on furlough in that case. The lesson to be drawn from a combined reading of Brooks and Feres is that a suit by a member of the military establishment against the U.S. Government cannot be brought under the Federal Tort Claims Act when the complainant has suffered what might be called a work-related injury and the Government he sues has already provided a "simple, certain and uniform compensation system." (340 U.S. at 144 n. 12, 71 S.Ct. 153). See United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Hale v. United States, 416 F.2d 355 (6th Cir. 1969); United States v. Lee, 400 F.2d 558 (9th Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969); Feeley v. United States, 337 F.2d 924, 933 (3d Cir. 1964); Snyder v. United States, 118 F.Supp. 585, 595-598 (D. Md. 1953). Thus, the Brooks-Feres distinction falls into the work related-non work related dichotomy characteristic of workmen's compensation schemes generally. See Cobia v. United States, 384 F.2d 711 (10th Cir. 1967); United States v. Browning, 359 F.2d 937 (10th Cir. 1966); Wolff v. Britton, 117 U.S. App.D.C. 209, 328 F.2d 181 (1964).

Since Bradshaw's injuries were obviously work related, Brooks has no applicability and that portion of Wham which relied on Brooks can no longer be considered a correct statement of controlling law as it applies to cases such as the one at bar.

In Wham, however, we indicated that a second reason existed for allowing the plaintiff in that case to maintain a suit under the Federal Tort Claims Act, i. e.:

However, independently of the Brooks decision, we think the facts concerning the Disability Act Fund suggest no sound basis for the exception read into the Tort Claims Act by the District Court. In our opinion the United States bears no such relationship to the Disability Act Fund as to justify the Government\'s claim for exemption from liability under the Tort Claims Act to appellant by reason of his position as a member of the Metropolitan Police of the District of Columbia.

86 U.S.App.D.C. at 129, 180 F.2d at 39 (emphasis added). This is tantamount to holding that the United States cannot successfully assert immunity from suit under the Federal Tort Claims Act because of the existence of available benefits under the District Disability Act since the nature of the relationship of...