209 F.2d 463
BROWN,v.UNITED STATES.
No. 87, Docket 22826.
United States Court of Appeals,Second Circuit.
Argued Dec. 18, 1953.Decided Jan. 5, 1954.

Harry E. Kreindler, New York City, (Lee S. Kreindler, New York City, of counsel), for appellant.
J. Edward Lumbard, U.S. Atty. for the Southern Dist. of N.Y., New York City, (Milton R. Wessel, New York City, of counsel), for appellee.
Plaintiff brought this suit against the United States, asserting a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674 and 2680.  The United States moved for summary judgment.  On the basis of the complaint, the answers of the plaintiff to interrogatories and the affidavits filed by both parties the facts presented were as follows:
Plaintiff served in the Army Air Force from October 27, 1942 to August 6, 1944.  During that time, while on active duty in New Guinea, he was injured in the left knee.  He was hospitalized until his honorable discharge in August, 1944.  At that time he could walk, but upon any sudden or strenuous movements, his left leg would become dislocated.  On March 8, 1950, 'he was operated upon by the Veterans Administration, for the purpose of 'cleaning up' the knee joint.'
As, however 'his leg continued to dislocate frequently,' he asked to be and uas admitted, on October 1, 1951, to a Veterans Administration Hospital in New York.  It was then decided that it would be well to perform another operation on the knee to prevent the leg from dislocating; it was to be a 'bloodless operation, requiring the application of a tourniquet to the left thigh.'  In fact, on October 4, 1951, a tourniquet was thus applied by an operating room attendant in the employ of the Veterans Administration.  As the tourniquet was defective, in that the pressure gauge did not register, an excessive amount of pressure was applied.  'The attendant should have realized' the defect as soon as the tourniquet was applied, but he did not.  As a result of the excessive pressure, the nerves in the plaintiff's leg were seriously and permanently injured.  Plaintiff was awarded a pension by the Veterans Administration at the time of his honorable discharge.  This pension was increased because of the injury he sustained as a result of the operation in 1951.
On these facts, the United States contended that plaintiff's sole relief was under the Compensation Act, 38 U.S.C.A. § 501a.  The District Court, agreeing with this argument, made an order dismissing the complaint.  Plaintiff has appealed.
Before CLARK, FRANK and HINCKS, Circuit Judges.
FRANK, Circuit Judge.


1
Admittedly, plaintiff's claim is not within any explicit exception contained in the Tort Claims Act.  In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200, the Court refused to read in an exception covering injuries to a serviceman, where the event causing the injury was not 'incident to the service.'  In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 155, 95 L.Ed. 152, the Court considered three cases relative to injuries incurred while on active duty in the armed forces.  In one of those cases, the injury resulted from negligence during the course of an abdominal operation; in another, death resulted from negligent medical treatment by army surgeons.  The Court said: 'The common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces.'  The Court held that, on these facts, the federal statutes expressly providing compensation for injuries of those in the armed service are exclusive 'where the injuries arise out of or are in the course of activity incident to service', and that, accordingly, for such injuries there can be no recovery under the Tort Claims Act.


2
In the instant case, the plaintiff, while in active service, had been injured in the left knee during military operations in New Guinea.  He received his discharge from the army in August 1944.  Seven years later, in 1951, pursuant to his status as a veteran, an operation was performed, in a veterans' hospital, by employees of the government's Veterans Administration, on his left knee, for the purpose of preventing the leg from dislocating.  Due to negligence in the course of that operation, he received a further serious injury on which he grounded his suit.  Plaintiff is receiving veterans' compensation for this injury, under 38 U.S.C.A. § 501a.1


3
We think that these facts do not bring this case within the doctrine of Feres v. United States, since no injury of which plaintiff now complains was sustained while he 'was on active duty and not on furlough.'  Moreover, we do not agree with the government's contention that plaintiff's claim is to be deemed merely an aggravation of his original injury and that it is therefore to be regarded just as if it had happened while he was on active duty.


4
The lower federal courts, in deciding similar cases, have disagreed with one another.  O'Neil v. United States, D.C. Cir., 202 F.2d 366 favors the government's argument.  However, it relies on Feres v. United States which, we think, not in point, and on Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, which we also regard as inapposite since it involved an interpretation of quite different statutes.2  Also favoring the government is Pettis v. United States, D.C., 108 F.Supp. 500.3


5
On the other hand, Santana v. United States, 1 Cir., 175 F.2d 320, and Bandy v. United States, D.C., 92 F.Supp. 360, sustain plaintiff's contention.  With them we agree.  It is urged that those decisions were rendered before Feres.  We think that argument untenable, in the light of our interpretation of Feres.


6
Of course, we have not considered defenses the government may assert on the merits such as, e.g., New York decisions limiting the liability of a hospital operated as an eleemosynary institution.


7
Reversed.



1
 It is to be noted that 38 U.S.C.A. § 501a covers compensation not only for an aggravation of an existing injury, but also for a new injury, suffered as the result of hospitalization or surgical treatment furnished under the compensation statute


2
 There the Court, referring to the Feres case, spoke of it, 343 U.S.at page 440, 72 S.Ct.at page 857, as relating to 'soldiers on active duty.'


3
 Lewis v. United States, 89 U.S.App.D.C. 21, 190 F.2d 22, related to an injury to a member of the U.S. Park Police incurred while on active duty


