Jefferson v. United States
Decision Date | 19 December 1949 |
Docket Number | No. 5815.,5815. |
Citation | 178 F.2d 518 |
Parties | JEFFERSON v. UNITED STATES. |
Court | U.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.
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.
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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