Jefferson v. United States

• Decision Date: 23 October 1947
• Docket Number: Civil Action No. 3692.
• Citation: 74 F. Supp. 209
• Parties: JEFFERSON v. UNITED STATES.
• Court: U.S. District Court — District of Maryland

74 F. Supp. 209

JEFFERSON v. UNITED STATES.

Civil Action No. 3692.

District Court, D. Maryland.

October 23, 1947.

Morris & Rosenberg, of Baltimore, Md. (Tydings, Sauerwein, Archer, Benson & Boyd, of Baltimore, Md., of counsel), for plaintiff.

Bernard J. Flynn, U. S. Atty., and Jas. B. Murphy, Asst. U. S. Atty., both of Baltimore, Md., for defendant.

CHESNUT, District Judge.

This case presents another new, difficult and unprecedented question arising under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq. The question is whether the Act authorizes a suit by a former member of the Military Forces to recover damages allegedly caused by a negligent abdominal operation performed on the soldier on or about July 3, 1945, by an Army surgeon in the State of Virginia (the plaintiff being a citizen of Maryland), while both were on active duty. The United States has moved to dismiss the complaint on the ground that such a suit is not within the coverage of the Act.

The argument in support of the motion advances the contentions that the Act properly construed was not intended by Congress to authorize suits by members of the Military Forces of the United States due to injuries sustained by the negligence of another member of the Forces, while on active duty, because compensation for such damages has otherwise been provided by the United States for the benefit of veterans by an elaborate system of disability and pension allowances which have been long in force, 38 U.S.C.A. §§ 151-205, and 38 U.S.C.A. c. 12, § 700 et seq., and Veterans' Regulations pursuant thereto. Support for this contention is based largely upon the cases of Dobson v. United States, 2 Cir., 27 F.2d 807, certiorari denied 278 U.S. 653, 49 S.Ct. 179, 73 L.Ed. 563; O'Neal v. United States, D.C.N.Y., 11 F.2d 869, affirmed 2 Cir., 11 F.2d 871, and Bradey v. United States, 2 Cir., 151 F.2d 742, where, in suits brought against the United States under the Public Vessels Act, 46 U.S.C.A. §§ 781-790, it was held the general language of the Act allowing "A libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States", is not sufficient to impose liability on the United States in a suit brought by a seaman on a public vessel for alleged injuries due to the negligence of other members of the crew. It is further argued that there is a special relationship between the United States and members of its Armed Forces, the nature of which makes it unreasonable to think that Congress intended to extend the benefits of the Act to such a situation as is here set up in the complaint because, it is further said, the status of a member of the Armed Forces with relation to the government is not the normal master-servant or employer-employee status wherein the doctrine of "respondeat superior" is applicable. It is also pointed out that the special nature and some of the incidents of this special relationship have recently been set forth by the Supreme Court in United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604. And in this latter connection it may possibly be further suggested that such a suit could not have been fairly within the contemplation of Congress because the general statutes, duties and incidents of military service are necessarily matters of federal law, whereas the liability imposed upon the United States by the Act is only — "on account of damage to or loss of property or on account of personal injury or death, * * *, caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death, in accordance with the law of the place where the act or omission occurred." (Italics supplied)

While this argument has plausibility and force, I have so far not been able to reach the conclusion that it is convincing in view of the scope of the wording (both affirmative and negative) of the Act itself. The most relevant provisions in the Act are these. Section 402(b) of the Act provides —

"`Employee of the Government' includes * * * members of the military or naval forces of the United States"

and section 402(c) provides —

"`Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty."

Section 410(a) is the principal affirmative imposition of liability and conferring of jurisdiction on the district courts. The liability imposed is for money only on account of damages caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable, in accordance with the law of the place where the act or omission occurred.

Section 421 sets up 12 separate and distinct classes of cases as exceptions to the general liability imposed by section 410. Here the only possibly relevant exception is section 421(j) reading —

"Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." but it is obvious that this exception is not applicable in the present case. Skeels v. United States, D.C.La., 72 F.Supp. 372. In construing and applying the statutory language we therefore have an affirmative section which literally is sufficiently broad to cover the instant case; and, while there are numerous excepted situations, none of the latter are applicable, with the seeming result that the literal wording of the affirmative provision for liability should not be whittled down by construction unless there is some very controlling reason therefor.

Although the Federal Tort Claims Act, approved August 2, 1946, was the culmination of a long congressional history of consideration of similar or related Acts, counsel have not been able to refer me to any particular legislative history of the Act or its antecedents in subject matter which throws any floodlight upon the question now presented. But possibly there may be some significance in the fact that many of the prior bills upon the subject did affirmatively include in the mentioned exceptions from coverage of the law, claims for which compensation was provided by the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., or by the World War Veterans' Act of 1924, as amended, 38 U.S.C.A. §§ 421-576.¹ As we have seen, the present Act is silent in this respect and it has been said that "prints of the bill, S. 2177, in the various stages of its enactment, the committee reports and the hearings, fail to mention these statutes or give any reason for their non-inclusion. Under such circumstances, a presumption arises that where a claim is cognizable under the present law, which is not barred by the two mentioned statutes relating to federal employees or to world war veterans such claim may under the election of remedies theory, be prosecuted hereunder." See article entitled "Federal Tort Claims Act — A statutory interpretation" by Gottleib, 35 Georgetown Law Journal, 1, 57. I have not been able to find in the World War Veterans' Act above referred to any specific provision with respect to the effect of the acceptance of the benefits provided thereby; nor have I found any judicial decision that acceptance of benefits under that Act precludes resort to other possibly available legal remedies; (but see Commers v. United States, D.C., 66 F.Supp. 943) although it has, of course, been decided with respect to the Federal Employees' Compensation Act (covering civilian as distinct from military personnel) that acceptance of benefits under that Act precludes suits under other federal Acts, under the doctrine of election of remedies. Brady v. Roosevelt S. S. Co., 317 U.S. 575, 577, 581, 63 S.Ct. 425, 87 L. Ed. 471; rehearing denied 318 U.S. 799, 63 S.Ct. 659, 87 L.Ed. 1163; Dahn v. Davis, 258 U.S. 421, 42 S.Ct. 320, 66 L.Ed. 696; Militano v. United States, D.C.N.Y., 55 F. Supp. 904; United States v. Marine, 4 Cir., 155 F.2d 456, affirming D.C.Md., 65 F.Supp. 111.

I am not satisfied that the reasoning of the Dobson case, supra, and its successors should be applied here. The language of the Public Vessels Act which was there involved was very general indeed (but see Canadian Aviator, Ltd., v. United States, 324 U.S. 215, 226, 65 S.Ct. 639, 89 L.Ed. 901). That Act provided that the United States could be sued "for damages caused by a public vessel of the United States". It did not expressly provide what classes of persons could or could not bring such suits; but did limit liability to damages caused by the vessel. It was an entirely reasonable construction of that general language o hold that it was not the intention of Congress to impose liability for personal damage to members of the ship's company arising on the ship but not caused by the ship itself as a juridical entity, in view of the long established policy of the United States embraced in statutes providing benefits for navy personnel.

By contrast the affirmative provision of section 410(a) of the Tort Claims Act is much more explicit. The section affirmatively confers jurisdiction on the district courts to —

"render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this...