Reid v. United States

• Decision Date: 30 June 1955
• Docket Number: No. 15514.,15514.
• Citation: 224 F.2d 102
• Parties: Wilroy REID, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 102 (1955)

Wilroy REID, Appellant, v. UNITED STATES of America, Appellee.

No. 15514.

United States Court of Appeals Fifth Circuit.

June 30, 1955.

John C. Satterfield, Lee B. Agnew, Russel D. Moore, III., Jackson, Miss., for appellant. Satterfield, Shell, Williams & Buford, Travis & Moore, Agnew & Slaymaker, Jackson, Miss., of counsel.

Edwin R. Holmes, Jr., Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellee.

Before HUTCHESON, Chief Judge, JONES, Circuit Judge, and WRIGHT, District Judge.

HUTCHESON, Chief Judge.

Brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2401, 2671 et seq., the suit was for damages caused by the negligence of defendant. The claim was: that, entitled as an honorably discharged veteran and as a governmental employee to proper medical attention and treatment, he requested that X-ray films be taken of his chest and lungs; that such X-ray films were made and interpreted and revealed the fact that his right lung was infected with tubercular disease; that employees of the defendant who read such X-ray and interpreted such reading, negligently advised this plaintiff that no tubercular disease was present and no treatment or preventative measures should be taken; that, relying on the advice of defendant's employees, plaintiff, on March 7, 1949, returned to work for a period of approximately eleven months and received no medical treatment; and that he had no knowledge of defendant's negligence until a second series of X-rays were taken by defendant in February, 1950, which revealed that defendant's right lung was infected with tubercular disease in an advanced stage.

Defendant admitted: that plaintiff was, as he alleged, entitled to proper medical attention and treatment; that, as alleged, on March 7, 1949, an X-ray was requested by plaintiff and was taken, read, and interpreted by Dr. Peterson, who made a written radiographic report concerning it; that said report was handed to plaintiff on or about March 8, 1949; and that neither Dr. Lowe nor Dr. Peterson ever advised plaintiff in any manner after the month of March, 1949.

It denied, however, that Peterson, Lowe, or any other government doctor had interpreted Dr. Peterson's X-ray report or advised plaintiff as to the meaning of it or the treatment to be taken, and that plaintiff was in any way misled as to, or prevented from discovering, the true facts. In addition, by way of pleas in bar, defendant pleaded: (1) the two year statute of limitation, set forth in 28 U.S.C. § 2401(b);¹ and (2) that plaintiff's alleged injury and damage were service connected and, having accepted the benefits of compensation therefor, he was barred from suing under the Tort Claims Act. It also filed a motion for summary judgment.

Plaintiff, opposing the motion, insisted that the suit was not barred because it was filed: (a) within less than six months after the denial of claims he had filed with the United States Employees Compensation Commission and the Veterans' Administration; (b) within two years after the date it was shown that the damages existed; and, that at any rate, the negligence of the defendant was not discovered until February 16, 1950, and the suit was filed within nineteen months thereafter.

The district judge, of the opinion that the suit was barred by the terms of the Tort Claims Act, Title 28 U.S.C. § 2401 (b), dismissed it with prejudice. Stating in his memorandum opinion that the Federal Employees Compensation Act, 5 U.S.C.A. § 751, et seq., did not bar him since he was not injured in the course of his employment, but that the provisions of Sec. 2401(b), that suit must be brought within two years after the claim accrued, did, he held that the claim accrued on March 7th or 9th, 1949, when the doctors negligently failed to advise him of his condition, and that the statute was not tolled by the filing of claim with the Employees Compensation Commission.

Appealing from the judgment, plaintiff is here insisting that the district judge erred because; (1) under the precise terms of Section 2675, Title 28, the Statute of Limitations could not commence to run until his claim had been denied by the agency; (2) his cause of action did not arise until the injury made itself manifest to him, and this was not until well within the two year period; and (3) his action is not against particular persons for their particular acts, but against the United States for negligent treatment of him by...