Jefferson v. United States

Decision Date19 December 1949
Docket NumberNo. 5815.,5815.
Citation178 F.2d 518
PartiesJEFFERSON v. UNITED STATES.
CourtU.S. Court of Appeals — Fourth Circuit

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 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 Act 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 of the same words may vary, of course, with the consequences, for those consequences may provide insight for determination of congressional purpose. Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 69 S.Ct. 503. The Government's fears may have point in reflecting congressional purpose to leave injuries incident to service where they were, despite literal language and other considerations to the contrary. The result may be so outlandish that even the factors we have mentioned would not permit recovery. But that is not the case before us."

Since this decision was rendered, the question not decided by the Supreme Court has been considered in the Second and Tenth Circuits which came to opposite conclusions. In Feres, Ex'x, v. United States, 2 Cir., 177 F.2d 535, it was held that the estate of an army officer killed in a fire in unsafe army barracks in which he had been quartered through the negligence of superior officers was not entitled to recovery for his death; but in Griggs, Ex'x, v. United States, 10 Cir., 178 F.2d 1, it was held that the estate of an army officer could recover under the act for his wrongful death caused by the negligence of members of the Army Medical Corps while he was under medical treatment. The Second Circuit based...

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36 cases
  • In re Agent Orange Product Liability Litigation
    • United States
    • U.S. District Court — Eastern District of New York
    • 29 Diciembre 1980
    ...criticism and rebuke of any member of the armed forces who chose to bring a suit against the United States". Jefferson v. United States, 178 F.2d 518, 520 (4th Cir. 1949), aff'd sub nom. Feres v. United States, 340 U.S. 135 71 S.Ct. 153, 95 L.Ed. 152 (1950) Even if we were inclined to recon......
  • Winston v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 27 Febrero 1962
    ...soldiers' claims against the government. See U. S. v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Jefferson v. U. S., 178 F.2d 518, 520 (4th Cir. 1959), aff'd sub nom., Feres v. U. S., supra; see also Healy v. U. S., 192 F.Supp. 325, 326-329 (S.D. N.Y.), aff'd, 295 F.2d 958......
  • Jaffee v. U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 2 Noviembre 1981
    ...criticism and rebuke of any member of the armed forces who chose to bring a suit against the United States." Jefferson v. United States, 178 F.2d 518, 519, 520 (4th Cir. 1949), aff'd sub nom. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 Id. at 717. As to the claim for in......
  • Hall v. United States
    • United States
    • U.S. District Court — District of New Jersey
    • 22 Diciembre 1981
    ...153, 95 L.Ed. 152, barred any relief. 3 177 F.2d 535 (2d Cir. 1949), aff'd, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). 4 178 F.2d 518 (4th Cir. 1949), aff'd, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 5 178 F.2d 1 (10th Cir. 1949), rev'd, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152. 6 340 U.S.......
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1 books & journal articles
  • INCIDENT TO SERVICE: THE FERES DOCTRINE AND THE UNIFORM CODE OF MILITARY JUSTICE.
    • United States
    • Air Force Law Review No. 81, March 2020
    • 22 Marzo 2020
    ...that 'any claim' means 'any claim but that of servicemen.'"). [80] Id. at 52. [81] 178 F.2d 1 (10th Cir. 1949) (allowing recovery). [82] 178 F.2d 518 (4th Cir. 1949) (denying [83] 177 F.2d 535, 536 (2d Cir. 1949) (denying recovery). [84] Feres v. United States, 340 U.S. 135, 138 (1950). [85......

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