Lowe v. United States, 30970 Summary Calendar.
Decision Date | 31 March 1971 |
Docket Number | No. 30970 Summary Calendar.,30970 Summary Calendar. |
Parties | Charles E. LOWE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Foye L. Lowe, Jr., Baton Rouge, La., for plaintiff-appellant.
Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., L. Patrick Gray, III, Asst. Atty. Gen., Morton Hollander, Robert M. Feinson, Attys., Dept. of Justice, Washington, D. C., for defendant-appellee.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
Appellant Lowe appeals the district court's order granting the government's motion to dismiss his suit brought under the Federal Tort Claims Act, Title 28, U.S.C., Section 1346(b), for injuries allegedly sustained while on active duty in the United States Army. We affirm.
On April 17, 1967, two months prior to the end of his enlistment, Lowe underwent elective surgery. The operation was performed by, and upon the advice of, military doctors at the U. S. Army Hospital, Fort Polk, Louisiana. Lowe allegedly suffered adverse effects from this surgery. Prior to Lowe's instituting the present suit, the Army administratively denied his claim for injuries on the ground that his claim was barred by the case law governing claims of servicemen for injuries occurring incident to their service. This determination was correct.
In Shults v. United States, 5 Cir. 1969, 421 F.2d 170, a serviceman was seriously injured in an automobile accident occurring away from his base and while he was on leave. He was taken to a military hospital where he died the next morning. The administrator of the estate filed a malpractice suit against the United States under the Tort Claims Act. Under the authority of Feres v. United States, 1950, 340 U.S. 135, 71 S. Ct. 153, 95 L.Ed. 152, we affirmed the district court's dismissal of the complaint stating in part:
421 F.2d at 171, 172.
The same conclusion must follow in the instant case....
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