Henning v. United States, 19088.

• Decision Date: 13 July 1971
• Docket Number: No. 19088.,19088.
• Citation: 446 F.2d 774
• Parties: Ralph J. HENNING, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

446 F.2d 774 (1971)

Ralph J. HENNING, Appellant, v. UNITED STATES of America.

No. 19088.

United States Court of Appeals, Third Circuit.

Argued March 18, 1971.

Decided July 13, 1971.

Jerome R. Verlin, Dragon, Verlin & Galfand, Philadelphia, Pa., (N. Carl Schwartz, Philadelphia, Pa., on the brief), for appellant.

James C. Hair, Jr., Atty., Dept. of Justice, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Louis C. Bechtle, U. S. Atty., Robert V. Zener, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before BIGGS and KALODNER, Circuit Judges and WHIPPLE, District Judge.

OPINION OF THE COURT

BIGGS, Circuit Judge.

Appellant, Henning brought this suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. to recover damages for:

"(a) causing the plaintiff to contract the disease of tuberculosis;

"(b) failing to discover that plaintiff had contracted the disease of tuberculosis both before and after discharge;

"(c) failing to properly administer x-rays both before and after discharge;

"(d) failing to maintain testing equipment in proper condition both before and after discharge;

"(e) failing to properly analyze the x-rays both before and after discharge;

"(f) failing to select competent personnel both before and after discharge;

"(g) failing to warn the plaintiff of a known danger both before and after discharge;

"(h) failing to treat the plaintiff before and after discharge;

"(i) failing to properly treat the plaintiff both before and after discharge;

"(j) being otherwise guilty of negligence, gross negligence, carelessness, recklessness, and/or wilful and wanton misconduct both before and after discharge." See Appellant\'s Complaint appearing in Appellant\'s Appendix at 5a-6a.

The parties' stipulation of facts and Henning's affidavit reveal that Henning's lungs and chest were normal when he was inducted into the United States Army on October 10, 1961, and this point is not contested, but that x-rays taken of Henning's chest at the Seneca Army Depot on October 7, 1963 showed that he had a "moderately advanced active tuberculosis in the right upper lobe." The report of his lungs on these x-rays, prepared by an Army doctor, "failed to indicate the presence of the tubercular condition" and Henning was never informed by the Army of his true condition either during his tenure as a serviceman or after his discharge. On November 14, 1963, Henning was discharged from military service. Shortly thereafter, but before Henning left the Seneca base, he was requested to go to the infirmary for a blood test. After waiting at the infirmary for approximately one hour without any tests being performed on him, he was instructed to leave. Either before or after his discharge or contemporaneously therewith,¹ Henning was issued a certificate dated November 6, 1963 indicating that on November 14, 1963 his condition was such that he was considered physically qualified for separation or for re-enlistment without re-examination if re-enlistment were to take place within 180 days of discharge.

In June, 1964, after experiencing a severe cough, a loss in weight, a decrease in appetite, and pains on his left side, Henning visited a physician who informed him of his tubercular condition. He was subsequently admitted to Riddle Memorial Hospital in Media, Pennsylvania where he was told that his disability was service-connected and that he would be kept in that hospital only until he had been admitted to a Veterans Administration (V.A.) Hospital. On June 23, 1964, Henning's wife filled out an application for Henning's admission to a V.A. Hospital. After several unsuccessful attempts to gain admission, Henning through the efforts of Dr. Harold Israel, beame a patient at a V.A. Hospital in Baltimore, Maryland.

On April 20, 1970, 311 F.Supp. 681, the District Court granted partial summary judgment against Henning "as to all that occurred while plaintiff was in the United States Army — the misreading of the x-ray and the consequent aggravation of his tubercular condition. * * *" This order also granted Henning the opportunity to amend his pleadings with respect to his claim of "negligence in connection with the care and treatment * * *" received from the V.A. On May 11, 1970 the District Court amended its previous order so as to render that judgment final for purposes of Rule 54(b), Fed.R.Civ.Proc., 28 U.S.C.²

In Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1959), the Supreme Court engrafted an exception to the Federal Tort Claims Act and held "that the Government is not liable * * * for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service."³ The Feres doctrine was reaffirmed by the Supreme Court in a 1963 decision, United States v. Muniz, 374 U.S. 150, 159, 83 S.Ct. 1850, 10 L.Ed. 2d 805. Also, see Dilworth v. United States, 387 F.2d 590 (3 Cir. 1967); Bailey v. De Quevedo, 375 F.2d 72 (3 Cir. 1967), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967). The issue presented for our determination is whether the claim or claims upon which the District Court granted summary judgment are for injuries arising out of or in the course of activity incident to military service.

Before determining this question, it is necessary to state the various claims upon which the District Court granted summary judgment. From the pleadings, affidavits, motions, and briefs, we can discern four separate claims which were disposed of by the District Court's partial summary judgment. One claim is for the negligence of the Army doctor in misreading the x-ray taken of Henning on October 10, 1961. Another claim is for failing to advise Henning of his tubercular condition before discharge. A third claim is for failing to advise Henning of his condition after discharge.⁴ A fourth claim is for issuing Henning a certificate indicating that his physical condition was such on November 14, 1963 that he was considered physically qualified for separation or for re-enlistment within 180 days without re-examination.

Applying the Feres doctrine to the first claim, we have concluded that Henning cannot recover for the negligence of the Army doctor in misreading the x-ray. The injury caused by such misreading clearly arises out of activity incident to his military service. Henning, however, argues that the critical time under Feres is when the injury occurs and that his injury occurred after he was discharged. This argument is erroneous for Feres does not limit its holding to injuries occurring in the course of activity incident to service. It also immunizes the Government for injuries arising out of activity incident to service. We think that Feres focuses not upon when the injury occurs or when the claim becomes actionable, but rather the time of, and the circumstances surrounding the negligent act. This view is supported by United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L. Ed. 139 (1954), where the Supreme Court held that a discharged veteran may maintain an action against the United States for an injury suffered in a V.A. Hospital after his discharge as a result of negligent treatment of a service-connected disability. The Court allowed recovery "since the negligent act giving rise to the injury * * * was not incident to the military service * * *" 348 U.S. at 113, 75 S.Ct. at 144. The focus is thus upon when and how the negligent act occurs.

Even if we accepted Henning's contention that the critical date under Feres is when the injury occurs, this would not aid Henning's case for we conclude that there is no question but that tuberculosis, being the type of disease which ordinarily grows progressively worse without treatment, rendered the negligence of the officer examining the x-rays progressively operable until a permanent arrest of the disease be effected. Thus, we take judicial notice of the fact that part of Henning's injury with respect to the first claim occurred when Henning was still in the service.

We think that the second claim is also foreclosed by the Feres doctrine for, once again, the negligent act, failing to advise Henning of his condition before discharge, occurred while Henning was in the service. While this negligent act occurred shortly before his discharge, Henning was nonetheless on active duty at this time. The Feres decision is not predicated upon the length of time remaining before a serviceman is separated but rather upon his military status at the time of the negligent act. Compare Knoch v. United States, 316 F.2d 532 (9 Cir. 1963).

The third claim, as we have said, is based on the failure of the medical authorities at the Seneca Army Depot to advise Henning of his tubercular condition after his discharge. Did or...