Van Sickel v. United States

• Decision Date: 15 December 1960
• Docket Number: No. 16841.,16841.
• Parties: Patricia VAN SICKEL, Michael John Van Sickel, Patricia Ann Van Sickel, et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

285 F.2d 87 (1960)

Patricia VAN SICKEL, Michael John Van Sickel, Patricia Ann Van Sickel, et al., Appellants, v. UNITED STATES of America, Appellee.

No. 16841.

United States Court of Appeals Ninth Circuit.

December 15, 1960.

Grace M. Wallis, Oakland, Cal., Harry I. Sky, Beverly Hills, Andreasen Thompson & Gore, Oceanside, Cal., for appellants.

George C. Doub, Asst. Atty. Gen., Morton Hollander, Mark R. Joelson, Attys., Dept. of Justice, Washington, D. C., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., for appellee.

Before ORR, HAMLIN and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellants appeal from the order of the district court dismissing their complaint filed against the United States for damages which it is alleged they sustained because of the allegedly wrongful death of Sergeant Donald Francis Van Sickel the deceased husband of appellant Patricia Van Sickel, and the deceased father of the other appellants who are minor children of the decedent and appellant Patricia Van Sickel who, while on active duty in the United States Marine Corps at Camp Pendleton, California, was admitted to the United States Naval Hospital at Camp Pendleton, California, for the purpose of having an operation performed on him. The complaint alleges that the United States "acting through its agents, servants and employees, carelessly, negligently and unskillfully operated on, cared for, and re-operated on said" decedent, and that he died as a direct and proximate result of the negligence, carelessness and unskillfulness of the United States, acting through such agents and employees.

Jurisdiction of the district court was based on the Federal Tort Claims Act, Title 28 U.S.C.A. §§ 1346(b), 2674 et seq.¹ This Court has jurisdiction under Title 28 U.S.C.A. §§ 1291 and 1294.

The complaint alleges that the action is brought "under the provisions of the Code of Civil Procedure of the State of California, Section 377 thereof, being Part 2 of Title 3 thereof."² It is further alleged in the complaint that by reason of the wrongful death of the decedent, the appellant Patricia Van Sickel has been damaged in the sum of $200,000, and that the other appellants have been damaged in the sum of $37,500 respectively.

In granting the motion of the United States to dismiss the complaint, the district court rested its decision on the decision of the Supreme Court of the United States in Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152. The Feres decision involved Feres v. United States, Jefferson v. United States, and Griggs v. United States, three suits brought against the United States under the Federal Tort Claims Act. All three cases concern servicemen in the United States armed forces who "while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces"; Feres v. United States, supra, 340 U.S. at page 138, 71 S.Ct. at page 155.

The Supreme Court summarized these three cases as follows:

"The Feres case: The District Court dismissed an action by the executrix of Feres against the United States to recover for death caused by negligence. Decedent perished by fire in the barracks at Pine Camp, New York, while on active duty in service of the United States. Negligence was alleged in quartering him in barracks known or which should have been known to be unsafe because of a defective heating plant, and in failing to maintain an adequate fire watch. The Court of Appeals, Second Circuit, affirmed.¹

"The Jefferson case: Plaintiff, while in the Army, was required to undergo an abdominal operation. About eight months later, in the course of another operation after plaintiff was discharged, a towel 30 inches long by 18 inches wide, marked `Medical Department U. S. Army,\' was discovered and removed from his stomach. The complaint alleged that it was negligently left there by the army surgeon. The District Court, being doubtful of the law, refused without prejudice the Government\'s pretrial motion to dismiss the complaint.² After trial, finding negligence as a fact, Judge Chesnut carefully reexamined the issue of law and concluded that the Act does not charge the United States with liability in this type of case.³ The Court of Appeals, Fourth Circuit, affirmed.⁴

"The Griggs case: The District Court dismissed the complaint of Griggs\' executrix, which alleged that while on active duty he met death because of negligent and unskillful medical treatment by army surgeons. The Court of Appeals, Tenth Circuit, reversed and, one judge dissenting, held that the complaint stated a cause of action under the Act.⁵

The Supreme Court affirmed the judgments in the Feres and Jefferson cases, and reversed the judgment in the Griggs case.

Appellants recognize that under decisions of the Supreme Court of the United States the Federal Tort Claims Act does not create new causes of action, but rather operates to waive sovereign immunity under "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." See United States v. Feres, supra; United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139; Indian Towing Company v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48. Appellants concede that under the decision in Feres if Sergeant Van Sickel had survived the alleged negligent treatment and operation of the agents and employees of the United States Naval Hospital he could not have maintained an action to recover for alleged injuries sustained under the Federal Tort Claims Act. Appellants earnestly contend that the holding in Feres is and must be restricted to claims of servicemen in the United States armed forces who while on active duty and not on furlough sustain injury due to the negligence of others in the armed forces.

Appellants contend that they are not seeking to recover for the injuries sustained by the decedent, but are seeking recovery against the United States for the damages alleged to have been sustained by them arising out of the allegedly negligent acts or omissions of the agents and employees of the United States, and therefore recovery by them for their damages under the Federal Tort Claims Act is not precluded by Feres if, in accordance with the law of the place where the act or omission occurred, the United States, if a private person, would be liable to them.

Appellants then point out that their action was brought under the provisions of Section 377 of the Code of Civil Procedure of the State of California, which gives them a new and original cause of action which is separate and distinct from any cause of action which the decedent, if he had survived, may have had against the alleged wrongdoer, which action is not subject to the limitations or defenses applicable to whatever claim the decedent himself had. We are satisfied from our review of the California law that the cause of action granted by Section 377 to the heirs and personal representatives of a decedent is not derivative in character or a continuation or revival of a cause of action existing in the decedent before his death, but is an original and distinct cause of action granted to the heirs and personal representatives of the decedent to recover damages sustained by them by reason of the wrongful death of the decedent. We are also satisfied under California law that appellants' cause of action accrued at the date of the death of the decedent and not before, and that the cause of action is not subject to the limitations or defenses which might be asserted against an action instituted by the decedent had he survived. Earley v. Pacific Electric Railway Co., 176 Cal. 79, 167 P. 513, L.R.A.1918A, 997; Rovegno v. San Jose Knights of Columbus Hall Ass'n, 108 Cal.App. 591, 291 P. 848; Blackwell v. American Film Co., 189 Cal. 689, 209 P. 999; Pacific Employers Insurance Co. v. Hartford, etc., 143 Cal.App.2d 646, 299 P.2d 928; Marks v. Reissinger, 35 Cal.App. 44, 169 P. 243.

Appellee apparently concedes the foregoing construction of Section 377, for...