Victor M. Hungerford, Jr. v. United States

307 F.2d 99 Victor M. HUNGERFORD, Jr., Appellant, v. UNITED STATES of America, Appellee. No. 17514. United States Court of Appeals Ninth Circuit. Aug. 8, 1962. Belli, Ashe & Garry and Jay Powell, San Francisco, Cal., for appellant. William H. Orrick, Jr., Asst. Atty. Gen., cecil F. Poole, U.S. Atty., John G. Laughlin and Jerry C. Straus, Attys., Dept. of Justice, Washington, D.C., for appellee. Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges. HAMLEY, Circuit Judge. 1 Plaintiff appeals from a judgment dismissing this action for damages brought against the United States under the Federal Tort Claims Act (Act), 28 U.S.C. 1346(b), 2674. 2 The action was dismissed before trial on two grounds: (1) the suit was not begun within two years after the alleged claim accrued and was therefore barred under 28 U.S.C. 2401(b); and (2) the claim arose out of an alleged misrepresentation and, therefore, under 28 U.S.C. 2680(h) is excepted from the provisions of 28 U.S.C. 1346(b) and 2674. Appellant contests both of these rulings. 3 It is alleged in the complaint that Hungerford was wounded in combat in July, 1950, while serving with the United States Army in Korea. He subsequently experienced…

Plaintiff appeals from a judgment dismissing this action for damages brought against the United States under the Federal Tort Claims Act (Act), 28 U.S.C. §§ 1346 (b), 2674.

The action was dismissed before trial on two grounds: (1) the suit was not begun within two years after the alleged claim accrued and was therefore barred under 28 U.S.C. § 2401 (b); and (2) the claim arose out of an alleged misrepresentation and, therefore, under 28 U.S.C. § 2680 (h) is excepted from the provisions of 28 U.S.C. §§ 1346 (b) and 2674. Appellant contests both of these rulings.

It is alleged in the complaint that Hungerford was wounded in combat in July, 1950, while serving with the United States Army in Korea. He subsequently experienced blackouts, unaccountable falls and severe head pains. In 1953, Hungerford was dishonorably discharged from the Army for going AWOL.

On January 15, 1957, Hungerford was admitted to Beacon Hill Veterans Administration Hospital, Seattle, Washington. Due to the negligent manner in which he was examined and in which diagnostic tests were performed at this hospital, and to the negligent failure to make necessary diagnostic tests, it was not discovered that…

(dissenting).

I regret that I am unable to concur in the foregoing opinion. I do agree that the claim is not one arising out of “misrepresentation”. (See 28 U.S.C. § 2680 (h).) But I think that the time when a “claim accrues” ( 28 U.S.C. § 2401 (b)) is governed by state law and not, as the opinion indicates, by federal law. I base this conclusion upon the language which the Congress used in enacting the Federal Tort Claims Act. That Act says ( 28 U.S.C. § 2674 ):

It also provides ( 28 U.S.C. § 1346 (b)) that the district courts have jurisdiction

The foregoing language indicates an intention on the part of the Congress either to create a cause of action against the United States, or to waive the sovereign immunity of the United States against being sued upon a cause of action otherwise existing (for the purposes of this opinion I do not think it matters which), but to make the United States liable only to the extent that it would have been liable under state law if it were a private individual. This necessarily means that for acts of its agents in some states the United States will be liable when, in other states, it will not. It also means that in some cases the liability may…