United States v. Brown, No. 38

• Court: United States Supreme Court
• Writing for the Court: DOUGLAS
• Citation: 99 L.Ed. 139,75 S.Ct. 141,348 U.S. 110
• Parties: UNITED STATES of America, Petitioner, v. Peter BROWN
• Docket Number: No. 38
• Decision Date: 06 December 1954

348 U.S. 110 75 S.Ct. 141 99 L.Ed. 139 UNITED STATES of America, Petitioner,

v.

Peter BROWN.

No. 38. Argued Nov. 15, 1954. Decided Dec. 6, 1954.

Mr.Samuel D. Slade, Washington, D.C., for petitioner.

Mr. Lee S. Kreindler, New York City, for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

This is a suit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), brought by respondent, a discharged veteran, for damages for negligence in the treatment of his left knee in a Veterans Administration Hospital. The injury to the knee occurred while respondent was on active duty in the Armed Services. The injury led to his honorable discharge in 1944. In 1950, the Veterans Administration performed an operation on the knee; but the knee continued to dislocate frequently. So another operation was performed by the Veterans Administration in 1951. It was during the latter operation that an allegedly defective tourniquet was used, as a result of which the nerves

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in respondent's leg were seriously and permanently injured.

The Independent Offices Appropriation Act, 1935, 48 Stat. 526, 38 U.S.C. § 501a, 38 U.S.C.A. § 501a, allows compensation both where the veteran suffers injury during hospitalization and where an existing injury is aggravated during the treatment. Each is considered as though it were 'service connected'. Respondent received a compensation award for his knee injury when he was honorably discharged; and that award was increased after the 1951 operation.

The District Court agreed with the contention of petitioner that respondent's sole relief was under the Veterans Act and dismissed his complaint under the Tort Claims Act. The Court of Appeals reversed. 2 Cir., 209 F.2d 463. The case is here on a petition for certiorari which we granted 347 U.S. 951, 74 S.Ct. 680 because of doubts as to whether Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200, or Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, controlled this case.

The Brooks case held that servicemen were covered by the Tort Claims Act where the injury was not incident to or caused by their military service. 337 U.S. 49, 52, 69 S.Ct. 918, 920. In that case, servicemen on leave were negligently injured on a public highway by a government employee driving a truck of the United States. The fact that compensation was sought and paid under the Veterans Act^* was held not to bar recovery under the Tort Claims Act. We refused to 'pronounce a doctrine of election of remedies, when Congress has not done so.' Id., 337 U.S. at 53, 69 S.Ct. 920.

The Feres decision involved three cases, in each of which the injury, for which compensation was sought under the Tort Claims Act, occurred while the serviceman was on active duty and not on furlough; and the

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negligence alleged in each case was on the part of other members of the Armed Forces. The Feres decision did not disapprove of the Brooks case. It merely distinguished it, holding that the Tort Claims Act does not cover 'injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.' 340 U.S. 135, 146, 71 S.Ct. 153, 159. The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character. Id., 340 U.S. at 141—143, 71 S.Ct. 156—157.

The present case is, in our view, governed by Brooks, not by Feres. The injury for which suit was brought was not incurred while respondent was on active duty or subject to military discipline. The injury occurred after his...