DENNY et ux. v. UNITED STATES, 171 F.2d 365

McCORD, Circuit Judge. This suit was brought by Charles H. Denny, a commissioned army officer, and his wife, Dorothy Mae Denny, to recover damages because of the alleged negligence of defendant in failing to furnish necessary hospital and medical services to plaintiff, Dorothy Mae Denny, at the time of the birth of plaintiffs’ child.

Recovery was sought under the provisions of the Federal Tort Claims Act, Title 28 U.S.C.A. § 931 [now §§ 1346, 2674], The complaint alleged that the United States Army, through its Brooke General Hospital at Fort Sam Houston, Texas, was under a duty to extend prompt medical service to plaintiff during her period of pregnancy; that defendant was negligent in failing to dispatch an ambulance to her promptly when she v as beginning her labor, and that as a result of such negligence plaintiffs’ child was still-born. Defendant moved to dismiss the complaint on two grounds:

(1) That defendant was expressly exempted from liability for the alleged act of negligence, the obligation to provide plaintiffs with medical care being a mere discretionary function; and (2) that defendant owed plaintiffs no duty to provide them with medical attendance or ambulance service, as alleged. At the hearing, the trial court sustained the motion to dismiss, and thereafter overruled plaintiffs’ motion for a new trial and reinstatement of the cause, whereupon this appeal followed.

The sole question presented is whether, under the applicable statute and regulation and the facts alleged, defendant has breached any duty imposed by law to provide appellants with the medical services requested.

Title 10 U.S.C.A. § 96, provides: “ * * * The medical officers of the Army and contract surgeons shall whenever practicable attend 'the families of the officers and soldiers free of charge.” Army Regulation No. 40-505 further provides: “Under the conditions indicated herein the Army usually through its own facilities will provide medical attendance to the personnel enumerated * * * below. * * Whenever practicable, the wife, dependent children, and servants of persons enumerated * * * above; also other dependent members of the family when residing with such persons provided they are not legally dependent upon an individual not in the military service.” (Italics supplied.) We are of opinion the trial court properly dismissed the complaint.

It becomes manifest that the phrase “whenever practicable”, as it appears in both the above statute and regulation, clearly stamps the obligation of the Government to provide medical service to Army dependents as discretionary in character. Any negligent breach of duty on the part of the Army medical authorities which may have existed, in failing to extend promptly the gratuitous medical services requested, clearly could not have resulted in any actionable damage.

The liability of the United States under the Federal Tort Claims Act does not extend to cases where, as here, injury results from the failure to perform a mere discretionary function or duty, even though the discretion involved be abused. Title 28, U.S.C.A. § 943(a) [now § 2680], We find no reversible error in the record, and the judgment is therefore Affirmed. Title 28 U.S.C.A. § 943, provides: ii * * * Claims exempted from operation of chapter. The provisions of this

chapter shall not apply to — (

a) Any claim based upon

an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, ivhether or not the discretion involved he abused."