# Petition for Writ of Certiorari — Lazaros v. Michigan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1208%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 390 U.S. 986 ## Text uerary. — * | fempeiees SUPREME COURT, U. & ie on ee | JAN 29 .1968 nu 062. |: 29 1968 F L JOH F. DAVIS, CLERK | United Staten | ¥ Ss? 8S January Term, 1968 CHARLES COBIA. and EVELYN COBIA,’ auc and - 7 - Petitioners, v. .THE UNITED STATES OF AMERICA : Respondent. . PETITION FOR A WRIT OF CERTIORARI -TO THE UNITED STATES COURT OF - APPEALS FOR THE TENTH CIRCUIT - RICHARD RICHARDS Attorney for Petitioners 200 Kiesel Building Ogden, Utah $4401 “ 4 % INDEX | Page Opinions below ............ oan a. FF Jurisdiction 0... ssiceeanacesantaie : — y Questions presented ....... | nioccensaiillia 2 Statute involved «...............0:... - decie we Statement ................- Ritalin : - el 4 Reasons for.granting the Pe LEK BOI Do ler 7 Conclusion: ........ — sgiciisai i cahigathb ince es — oe Appendix A siishoniied dE Titel Senieladsiebias Al Appendix B nnn oe ae CITATIONS Cases ‘ Johansen v. VJ. S., 343 U.S. 427, 96 L. Ed. 1051, 72S. Ct. 849, (1952) ongeeceeenceen ae 7-9 - United States v. Muniz, 374 U.S. 150, 10 L. Ed. 2d — 805, 83 S..Ct. 1850, (1963) irvenenennosevenoouenineonet 8-9 U. S. v. Udy, 881 F.2d 455, (1967) .ccccssssocssesssee 8 Solomon v. U. S., 276 F.2d 669, (1960) 2... 9 Goldstein v. U.S., 227 F.2d 1, (1955) .......0......... 10 STATUTES _ | ‘98 U-S. C. § 1966 en : TS GA | aa ane ne ee ne 5 U.S.C. § 8116 ........... = eke 5 U. S. C. § 8128 .. enievasiiolansininaaa 4 in the Sian Court of the Anited States” elt January Term, 1968 CE ASLS COBIA and EVELYN COBIA, ~" husband and wife, | Petitioners, Vv. THE UNITED STATES .OF AMERICA : Respondent. PETITION FOR A’ WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT - The Petitioner prays'that a Writ of Certiorari be issued to review the judgment of the United States Court of Appeals for the Tenth Circuit entered in the - above-entitled case on the 30th day of October, 1967. ~~ 1 a OPINIONS BELOW: ‘The opinion of the Tenth Circuit Court of Appeals - is prinetd in App. A, infra, pp. ‘A1-A8 and is. reported in 884 F.2d 711 (1967). The opinion of the United”, States ‘District Court for the District of. Utah is un- ‘reported and printed i in App. B,-infra, pp. B1-B-11. . - JURISDICTION ° The judgment of the Circuit Court of Appeals was entered on October 30, 1967, (App. A, infra, pp. A1-A3). The jurisdiction of this court is invoked 3 under 28 U: S. C. Section 1254 (1).- QUESTIONS PRESENTED _ Whether . an award made under the Federal En- ployees’ Compensation Act to an injured person not _an empleyee within the meaning of the statute and not injured while in the performance of his duty, can thereby deprive the court of jurisdiction in a Federal Tort Claims Act or deny the injured -persen the. right. to pursue his remedy under the’ Federal Tort ‘Claims — Act. Whether receipt of benefits under the Federal Employees’ Compensation Act by one not enititled, constitutes an estoppel or ‘choice of procedure to bar recovery under FTCA. | . May: ‘the defendant invoke the d doctrine of sine or choice of procedure when it was the defendant's 2 agents, servants, or ) employees that informed the peti- — tioner of his right to the benefits under the FECA. ae |. tS. ae and where they have suffered no detriment. — STATUTES INVOLVED 28 :U~ S. C. § 1346. (b) ‘“<# * * the district courts, together with the United States District Court for the District of the Canal Zone.and the District Court of the Virgin Islands, shall haye exclusive jurisdiction of _ civil actions on claims against the United States, for - money damages, accruing on and after January 1, 1945, . for injury or loss of property, or personal injury or. death caysed by the negligent or wrongful act. or omission of any employee of the Government while © acting within the scope of his office or employment, under circumstances’ where the United States, if a private person, would be liable to the claimant in accord-. ‘ ance with the law of the place where the act or omission occurred.” a 5 U. S.C. § 8182. (a) “The United States shall pay: compensation as specified by this subchapter for the disability or death of an employee resulting from _ personal injury’ sustained while in Ahe performance of his duty * * *” $U.S.C.§ 8116. (c) “** * The liability of the United States or an instrumentality thereof under this ° subchapter or any extension thereof with respect to the injury or death of ,an ‘employee is exclusive and instead of all other liability of the United States or r | % ‘a I M . - — 7 \._ the instrumentality to. the employee, his legal repre- sentative, spouse, dependents, next of kin, and. any ... other person otherwise entitled to recover r damages * * * ” 50'S. C. § 8128. (b} “ * ** The action of the - Suiodinsy or his designee in allowing or denying a payment under this subchapter is—(1) final and con- clusive for all purposes. and with respect to all question of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise.” STATEMENT “The petitioner, CHARLES COBIA, a married . man with five minor children, was employed by the . United States Air Force at Hill Air Base near Ogden, Utah. He*was an hourly employee obligated by .the terms of his employment to punch a time clock as he began hig work or completed his work on any given day. On the 15th day of January, 1965, at the end | of his working day he. punched out, left the building in which he performed his labor, proceeded to a public parking lot, designated No. 50 which was fenced out from the military reservation, and boarded an automobile . then owned: and driven by Mr. Verl Udy, and pro- ceded, to leave Hill Air Force Base area and journey to ‘bis home. At that same time, the access highway.. - between petitioner's home and the air base was under ° construction and the United States Air Force allowed their employees to re-enter . the military reservation and travel along a road known as “perimeter: road” 4 we —_ a which emerged from the reservation closer to the town of Ogden without entailing the inconvenience of travel ing upon the highway that was then under construction. Any re-entry to the base was strictly for the Convenience of: the employee. : > After re-entering the military. reservation,»,the petitioner and his companions traveled approximately three miles from the parking lot and the building in . which the plaintiff worked when an oil tank became’ “ ‘uncoupled from a motor vehicle ‘then owned and .op- -erated by the defendant, crossed over the center line of the highway dnd struck the automobile in which the plaintiff was a passenger, killing the driver, Mr. Verl Udy ,and inflicting serious injury on the peti- _tioner. Shortly thereafter, petitioner experienced head- aches, dizziness, loss of memory and suffered from hallucinations. He was quite. disorganized, illogical, me F _ had strange thoughts, would imagine things, would hear’ voices, and was suffering from a market fear of dying and hat voices Were telling him that.he was going to die. (R 243) Within the first. two or three days after his injury, while confined in a lotal hospital,” certain employees of the defendant visited him in the hospital and explained to him his rights and benefits _ under. the, Federal -Employees’ Compensation Act. (Xt 375) Petitioner delayed making’a decision relative to application for benefits but on the 8th day of Feb- ruary, 1965, he made application and benefits were. ultimately awarded. Petitioner's mental condition grew * , progressively worse and before release from the hos- ' pital he had received a total of 37 electric shock treat-_ ments and 12 insulin shock treatments but did not 5 ar, v respond favorably. At the time he accepted the benefits, - he was mentally .confused, irresponsible, and‘ had no adequate understanding of the law or his rights under the Compensation Act or under the Federal Tort Claims Act. (R 146) In May of 1966,- petitioner's wife secured legal counsel for her husband, and on June 8, 1966, the peti- tioner filed a Complaint against the United States of America .invoking jurisdiction of the Federal Court under provisions of Title 28, U. S. C., Section 1346 (b). A substantial portion of the benefits paid’ to. the petitioner were paid directly to the hospitals and doctors who rendered medical treatment on his: behalf, having paid to them the approximate sum of $10,000.00. The trial court found that the ‘petitioner was not in the performance of his duty at the time of his injury and any determination to that effect was without sub- stantial support in the evidence. (R 145) The petitioner’ had left his duty station, the building in which he per- formed his labors, the ‘ ‘fenced in’ ” portion of the, military reservation, checked out through the guard gate, emerged from the public parking lot, re-entered.the mil- itary reservation for his own convenience‘and journeyed some three miles before becoming involved in an acci-: dent. (R 140 to 143) The fact that petitioner was still on thé premises was the sole factor that induced the award of benefits under FECA. (R 280) The trial court held the petitioner to be estopped ~ from asserting his claim under the Federal Tort Claims Act upon th grounds that he had accepted the benefits of FECA. The Court of Appeals for the Tenth Circuit 6 1 4 % affirmed the trial court’s determination that the peti- - tioner had no claim under the FTCA because he*had exercised a ‘choice of procedure which denied review by the courts. 1 ® . REASONS FOR GRANTING THE WRIT 1. The decision of the court below in the instant . case is in conflict with applicable decisions of this court. This court has made it abundantly clear in Johansen v. U.S., 843 U. S. 427, 96 L. Ed. 1051, 72 S. Ct. 849, (1952) that where an employee is injured in the per- formance of his duty his exclusive remedy is under the Federal Employees’ se niaicah Act and the court | » said at page 1057, t “There is no provision in the Compensation - Act for an election between compensation and other remedies.” : The court. below in the instant case denied the petitioner a remedy under the Federal Tort Claims Act on the ground that he had “exercised a choice of procedure which denies review by the courts”, ‘App. A, p. 8). The implication of the decision below is that petitioner had more than one remedy and since he had made his choice or his election as the case may be he is now precluded from, pursuing his action. under the Federal Tort Claims Act. , Petitioner believes that the J ohanses case, supra, confers upon employees within the meaning of the act, _the benefits of that act and they are in effect “fenced in” but should not be construed to allow persons who 7: + Be ee eens oC aay ee Lee . es are not employees within the meaning of the act and who receive injury while not in: the performance of their duty to claim the benefits of the act, they are in effect “fenced out”. Petitioner was not in the perform- . ance of his duty at the time of the injury (R 145) and cannot be included. His énly remedy therefore is the FTCA. — | , 2. The decision of the court below in the instant case is directly in conflict with United States v; Muniz, 374 U.S. 150,.10 L. Ed. 2d 805, 83 S. Ct. 1850, (1963) where the court interpreting the Federal Tort Claims Act objected ‘to judicial determinations which narrowed the remedy provided by Congress under’ the, Federal Tort Claims Act. The court said at page 816, “The FTCA provides much needed relief to those. suffering injury from the negligence of Government employees. We should not, at the _same time the state courts are striving to miti- gate the hardships caused by sovereign immu- nity, narrow the remedies provided by Congress. As we said in Rayonier Incorporated v, U. S. Supra (352 U. S. at 320) “There. is no justifi- cation for this court to read.exemptions into the act beyond these provided by Congress, if the act is to be altered that is the function for the same body that adopted it.’ ” _ The trial court in the instant case found that any determination. that the petitioner was injured in the performance of his duty was without substantial sup- port in the evidence, (R‘145)” and in the companion case to the instant case, U. S. v. Udy, 381 F.2d 455, (1967) the Tenth:Circuit Court of Appeals in an iden- tical factual situation upheld the lower court’s deter- uv 8 mination that there was no basis upon which an award could be made under the FECA. Clearly then, the petitioner was not entitled to benefits under FECA — and his only remedy was under the Federal Tort Claims - Act. " 3. The questions presented here are of great im- portance to the administration of the FECA and the FTCA and will affect literally thousands of em: yees - of the Federal Government. Johnson vs. U. S., Supra, reinforces the. principle of exclusive-remedy under FECA and U. 8.0. Muniz, Supra, denies narrowing ~~ sthe remedies under the Federal Tort Claims Act. ‘In the instant case the petitioner was not entitled to the _ benefits under the FECA, but they were granted there- by expanding the coverage of that act to cover persons not entitled to benefits and in conflict’ with M uniz, Supra, narrowing coverage under the Federal Tort‘ claims Act which was petitioner's proper and rightful remedy. 4. The decision of the court below is believed to be erroneous and in conflict with decisions of the Sixth Circuit Court of Appeals in Solomon v. U. S., 276 F.2d 669, (1960) in which the court said at page 675, _ “Kilection of remedies is a wal recognized ' principle of law, but, in order to be applicable, certain facts must exist, one of which is that there must be a choice, knowingly made? between two inconsistent rights, either of which may be assert- ed at the will of the chooser. If through a mistake of material fact or of law, alternative remedies - are not known to be available, the ‘selection of ‘” what later develops to be an improper remedy ?, or . 9 does not constitute an election which will bar _ CONTE I TONNE Na re 4 < dsbleaaanhadanbisa bat icsein we Q iy the party. fren later asserting the correct remedy which is available to him.” - v8 a . The court cited Goldstein v. U. S., 227 F.2d 1, (1955) decided-by the Eighth Circuit Court of ——— + where the court there said, | “The fact that one, , through mistake, attempts — to exercise a right to which he is .not entitled, . does’ not prevent him from exercising one which he has.” — 5. The Court of as in the-instant case below has sanctioned a departure. from the usual course of judicial proceedings where the lower court held that although the petitioner was not entitled to benefits under the FECA. by virtue of the fact that he had accepted benefits he was now estopped from asserting his remedy under the Federal Tort Claims Act. Peti- tioner bélieves this decision is erroneous and in conflict with decisions of other court of appeals. The Govern- ment here seeks the benefit of a determination made under mistake of law arid fact. This is in conflict with Goldstein v. U. S.,Supra, where the taxpayers attempt- ed to take advantage of a mistake of law and fact determined by the commissioners relative to the amount of. taxes to be paid. The court refused to invoke the doctrine of estoppel for acts or mistakes of its agents or officers which the law does not authorize or permit and refused to allow the taxpayers to seek a profit from the mistake. of the commissioner in. their favor. The same principle should apply in the instant case. The mistake of law and fact in granting an award under FECA was made by the Government and they peels not be able to profit from said ‘mistake. 10— | CONCLUSION | | os For the foregoing reasons, this petition for 2 writ of certiorari should be granted. ; Respectfully submitted, o RICHARD RICHARDS”) - Counsel for Petitioner -- J anuary 24, 1968. 11 \ to COBIA, husband and wife, . THE UNITED STATES OF APPENDIX A - UNITED STATES COURT OF APPEALS TENTH CIRCUIT _ SEPTEMBER TERM - 1967 CHARLES COBIA and EVELYN. A ppellants, No v. | , AMERICA, Appellee... APPEAL FROM THE UNITED STAT DISTRICT COURT FOR THE ‘. ~- DISTRICT OF jUTAH Richard Richards, Ogden, Utah (Firm’ of Froerer, Horowitz, Parker, Richards, Thornley & Critchlow, Ogden, Utah with him on brief ) for appellants. Robert E. Kopp (Barefoot Sanders, Assistant Attor- ney General, William T. Thurman, United States Attorney, Morton Hollander and J.-F. Bishop, Attor- neys, Department of Justice, Washington, D. C. with him on brief) for appellee. | Before PICKETT, HILL and HICKEY, Circuit Judges | é HICKEY, Circuit Judge ~ . Ad = Bh hn fA — a 4 é. eo RE SE Neat MIPS Sy , Charles and Evelyn Cobia, husband and wife, ap- peal from a judgment in which the Ufiited States was _ given a. non-suit in‘'a Federal Tort Claims action. Recovery is sought under 28 U-S.C. §§1346(b), 2671 et seq. for injuries sustained by appellant Charles Cobia -in a motor vehicle collision at Hill Ajr Force Base in which. the United States confessed, negligence as the proximate cause of the collision. Mr. Cobia made - application for and continués to receive compensation for injuries under the Federal Employees Compensa- tion Act, 5 U.S.C. $8101, et seq. bs The court ried that application’ for and the con- tinued acceptance of compensation under the FECA foreclosed the appellants from recovering under the Federal i ea Act. We agree. Appell: ts argue that U. S.-v. Udy, No. 9156 July Term, 381. F.2d 455 (10th Cir. 1967) determined ‘that the collision out of which this claim arose was actionable | under the Fedefal Tort. Claims Act. It is true the. ‘claims grew out of the same collision and this court : determined the remedy under the Federal Tort Claims Act, was available to Udy; however, Udy did not elect. - ’ to proceed under the FECA and proceeded only under the Tort Claims Act, thereby givirig the court an oppor- tunity to exercise its’ judgment, regarding the remedy. - When application is made for FECA benefits, the determination of coverage is made by the Secretary of: ‘Labor or his designee and his finding is final and not subject to judicial review. 5.U.S.C. §§8145, 8128(b). _. Acceptance of benefits under the FECA is an injured employee's exclusive remedy. 5 U.S.C.: §8116(c) ; | on ane ée . . i v. United States, 207 F.2d 862 (10th ¢ Cir’ 1953); United States v. Browning, 359 F.2d 937 (10th - - Cir. 1966). 3S 3 _ Therefore, | we affirm the trial court’s determina- tion that the appellants have no claim under the Federal _ Tort Claims Act because they have exercised a choice of procedure which denies review by the courts. “AFFIRMED. Re rea wer . . / rs ’, - APPENDIX B IN THE, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION , > CHARLES COBIA and EVELYN: ; COBIA, husband and wife, , | . CO ppellants, No. rs €'111-65 THE UNITED STATES OF AMERICA, Appellee. © FWDINGS OF FACT AND | CONCLUSIONS OF LAW . Pa This matter having come before this Court on the ; 3rd day of August, 1966, for trial before the Honorable A. Sherman Christensen, United States District J udge, | and. Richard Richards having appeared as counsel for the plaintiff and H. Ralph Klemm as Assistant United “ . States Attorney having appeared as counsel for the defendant, and both sides having called their witnesses and the Court having heard all of the‘evidence presented by. the parties hereto, the Court now makes the following Boe FINDINGS OF FACT i ; it Gad anuary 15, 1965, on the military reserva- 4 ; tion known as Hill Air Force Base, near Ogden, Utah, Bl. the plaintiff Charles Cobia was a passenger in an auto- mobile that collided with) an oil bowser that. became disconnected from a truck driven -by an employee of the defendant while he was in performance of his duty. Upon stipulation of counsel for the defendant, the Court finds that the defendant was negligent and the negligence referred to herein was the proximate cause tiffs. 2. The plaintiff Charles Cobia received the follow- ing injuries-in said accident: “ a. Very extensive contusion and ragged laceration of left forehead and left cheek. b. Multiple small lacerations of left face. c. Moderately severe concussion of brain. d. Fractured ribs — left chest. e. Contusions and sprain of left shoulder. f. Laceration of superior branch left facial nerve . with resultant inability to wrinkle forehead or raise left _ eyebrown: g. Shock. - 3. .The Court finds that the plaintiff Charles - Cobia was not in the performance of his duty at the time he sustained his injuries. Said finding is based upon the following: ) a. Plaintiff Charles. Cobia was employed as an airplane landing gear repairman. Substantially all -of his work was to be performed in Building S 264. Land- ing gears upon “a he works are generally contamed B-2 of said collision and the resulting injuriés to the plain- , | LE MELT in that building. All of the tools necessary for the per- formance of his duties are contained and maintained in said building. * ‘“ b. Plaintiff is an hourly sagloyes and required by his employment contiact to punch a time clock as he begiiis his working day and at the end of his ‘working day again punches a time clock as he leaves his duty station. On the date of his i injury he had in fact punched the time clock in and his supervisor had signed him out indicating that he nea completed his regular Satins for that day. ' c. Following completion of his duties for the day and punching out, he left. the building in which. he is normally employed and proceeded to the parking lot to be transported to his home. As he proceeded to the parking lot he checked ‘out through the guard*gate in , Building T 500 and as he left the building and the guard station he entered upon Parking Lot 50. d. Parking Lot 50 is a parking facility available to the public generally and it is completely fenced out - from the rest of the military reservation and all persons | can drive upon said parking lot at will without authori- zation and without going through a guard or checking station. : e. The driver of the automobile, Mr. Verl Udy, then proceeded to drive the automobile from the -public parking lot back onto the military reservation as a matter of convenience for himself, Mr. Cobia, and the other passengers. They were allowed to re-enter the . fenced portion of the reservation because they could display a sticker indicating that they were employed . B-3 Qa by the United’States Government. They then passed ‘through a gate on the east end of Parking Lot 50, re- entered the military reservation and proceeded toward their home on perimeter road. f. Supervision exercised over the plaintiff while ' he was on perimeter road was authorized by virtue of the fact that he was on the military reservation and_the government exercised no greater control over him than they would over any other visitor or guest, the sole: reason he was upon the military reservation was for his own convenience. No purpose was served forthe em- ployer, the military police in charge of trdffic on the reservation or any other person or authority. g. After the plaintiff had journeyed some three _ miles from the parking lot into the reservation, he was _ struck by the government vehicle. -h. Upon examination of the circumstances sur- rounding’ the accident, the plaintiff Cobia’s immediate _ supervisor “was requested to submit an official report _ of injury in which he indicated that the plantiff Charles ' Cobia was not doing his regular work at the time of his injury and was not in the performance of his duty. 4. The injuries heretofore mentioned received by the.plaintiff were suffered as a direct result of the colli- sion between the government vehicle and the automo- - bile in which plaintiff was a passenger. Immediately following the collision plaintiff was transported to the medical dispensary at Hill Air Force Base and later transferred to the Dee Hospital in Og- den, Utah. Within a period of 2 or 3 days Mr. Cobia showed signs of severe mental injury. He was having B-4 @ wes a Bi i all ol ll a a hallucinations, imagined voices were talking to him and told him that he was going to die, and was generally . very confused. Plaintiff Charles Cobia remained in the hospital for a period of five days, after which he was returned to his home for a short period of time, on the 20th day of January, 1965. Two days thereafter he was again seen by his doctor Wendell J. Thompson and complained of headaches, dizziness, loss of memory, and was. transferred to the St. Benedict's Hospital. On: the Sth day ‘of March, 1965, Dr. Richard Iverson, a- qualified psychiatrist practicing his profession in Ogden, _ Utah, was. assigned to his case and rendered extensive care and treatment. He was confined from the 5th day of March, 1965, to the 28th day of April, 1965, and received extensive psychiatrid® treatment.. _ Thereafter he was released to his home where he remained for a period of two days but because of his illness he was. returned to the hospital for further care. He remained in the psychiatric ward at the St. Bene- dict’s Hospital for several months. During the period of his confinement, he received a total of 37 electric shock treatments and 12 insulin shock treatments but the response was not as favorable as the doctor had hoped. Plaintiff suffered a schizophrenic reaction, un- . diffetentiated type, and while his condition has im- - proved since he has resumed work, there is-no assurance -that there will not be a worsening of his condition or that his condition so proximately caused by the colli- sion will not require him to interrupt or discontinue his . work. He is now working full time and there appears no immediate prospect of him being unable to continue his present work. : BS on . parr pte i cuit nts tna ES id Aedes Dante Matt waite ena 5. Subsequent to: Mr. Cobia’s injury, while he was still confined in the hospital within two or three days after the injury, he was visited by certain employees of the federal government-to explain to his his assumed right to benefits under the Workmen’s Compensation — . Act. At that time he indicated that he would make a decision relative to his benefits at a later date. On the * 8th day of February, 1965, Mr. Cobia did make appli- cation for benefits under the Federal Employees’ Com- pensation Act. His application was favorably acted upon pursuant to the Federal Employees’ Compensa- tion Act. The Board, having found that he sustained ‘. his injuries in the performance of his duties as an em- ployee of. the federal government, paid to him the sum. of $342.96 per month during the period of time he was unable to work and in addition to such compensation the federal government paid all of his medical expenses - growing out of the accident. The total plaintiff re- ceived pursuant to the award of compensation has been io date in excess of $1300.00. There was no evidence presented at the trial to indicate that the plaintiff Cobia was in the performance of his duty at the time of his injury and the award was apparently made solely upon the basis that the injury occurred on the military reser- vation. In.view, of the surrounding circumstances of the ‘case it is clear that this particular circumstance did not . furnish substantial evidence to support a determination — by the Bureau of Employees’ Compensation, and that any finding that the plaintiff Cobia was injured in the performance of his duties was without any sybetantial support in the evidence. . The evidence before the court does not clearly BS6 ae ne ne en i MDs 5.06 8 reveal the circumstances under which the plaintiff sub- ‘mitted his claim to compensation, nor the particular © » circumstances under which compensation paymenis . ~ were actually received and utilized after the approval - of his claim. ‘There is no evidence to indicate with winom he and his wife consulted with reference to the filing of the claim or with reference to the acceptance of bene- fits, nor is there any evidence to indicate that at any stage either he or his advisors undertook or attempted to terminate the receipt of compensation of refused to accept funds because the claim-was not properly allowed by the Bureau, or for any other reason. On the con- trary, the record: indicates that notwithstanding the commencement of this suit on June 8, 1965, claiming damages under the Federal Tort Claims Act the plain- _ tiff has received and accepted compensation pursuant. to the award of the Bureau without protest or objection and has utilized said funds for his own and his family’s purposes and that there has never been any attempt to _ withdraw or abandon his application except that im- plicit in the fact that he has claimed in the present law- suit damages under the Federal Tort Claims Act and has maintained during the course of these proceedings that neither his application for compensation, the award. of the commission, nor his acceptance of benefits has barred him from recovery herein, the plaintiff indicat- ing a‘ willingness to credit against any amount awarded as damages in this suit the compensation payynente and medical expenses heretofore received. There is ssiiinie to indicate, aad the court finds, | that at the time the-plaintiff Cobia executed his claim for compensation under the Federal Employees’ Com- B-7 pensation Aét he was mentally confused and irrespon- _ sible and had no adequate understanding or comprehen- sion oi the law with regard to coverage or concerning possible rights underthe Federal Tort Claims Act. But there is no evidence from which the court can find © that this condition continued during all of the period in which he was being paid and receivéd compensation and, on the contrary, the preponderance of the evidence indicates that during a substantial part of said period he was reasonably advised and understood that he could not lawfully obtain both employees’ compensation under the Federal Employees’ Compensation Act and dam- ages under the Tort Claims Act, and that he deter- mined with reasonable awareness of possibilities that he should accept benefits under the Federal Employees’. Compensation Act. During the time this determination was being made, the law applicable in this district con- cerning possibilities and probabilities was not settled, nor were.the prospects concerning the plaintiff's ulti- mate recovery in pursuit of either remedy anything but uncertain. Moreover, what the situation of plaintiff ~ Cobia might be with regard to his health, his ability to regain and maintain employment if the application for compensation should be withdrawn or further payments refused and reliance placed solely upon the Federal Tort Claims Act was a difficult one. At the time the . application for compensation was filed the certificate of the attending physician did not necessarily indicate any permanent injuries except with respect to control of facial nerves and definitely did not indicate. any per- manent impairment of earning ability. Subsequently the psychatrist realized that there were serious mental » B-8 hacen Sete wiht RS he a ip RED Net Se om implications but the realization they they might result in permagent impairment of earning ability, if indeed they do, came progressively over a period of time. Under conditions as they probably existéd at -the time a knowing and considered determination was made * to accept benefits under the Federal. Employees’ Com- pensation Act, it was a difficult and close question of judgment as to whether the plaintiff should attempt to renounce benefits under the Compensation Act and: : rely exclusively upon the Tort Claims Act, or whether. he should continue to accept benefits under the Com- pensation Act. The continued acceptance of benefits having been established and no reason being suggested _ in the evidence whereby the plaintiffs could be excused from the consequence of such acceptance, the plaintiffs must be deemed to be estopped in equity and good con- science from now relying upon the Federal Tort Claims Act. v4 "In view of the last mentioned holding, it is unneces- sary at this time for the court to determine or speculaice upon..the damages that might ultimately be suffered by the plaintiffs or either of them, were'an award to be made under the Federal Tort Claims Act; except to note that a substantial part of the damages now claimed in. this action may never accrue, particularly as they relate . to the failure of employment in thesimmediate or fore- seeable future; and that the relationship between the benefits that ultimately may be realized under the award of compensation and the damages that could be awarded at this time, should this have been held a pro- _ per. action under the Federal Tort Claims Act, does not present such an established disparity as to permit or . BY oS tases justify attempted departure from the controlling effect of the acceptance of benefits under the Compensation: Act. View the ienartee Findings of Fact, the Court | now ti the ee: o CONCLUSIONS OF LAW 1. The defendant was. negligent in that one of. defendant’s employees while acting in the course and — scope of his employment negligently and carelessly operated a motor vehicle on the 15th day of January, 1965, and as a result of the negligence of said defend- ant an oil tanker coupled with said automobile came loose causing it to strike the automobile in which plain- tiff Charles Cobia was a passenger. 2. That the negligence of the defendant was the — sole and proximate cause of the injuries to the plaintiff. Charles Cobia, and that there was and is no substantial evidence that the injuries were sustained in the per- formance of duty for the United States. 3. That:as a proximate result of the negligence of the defendant and resulting accident, the plaintiff Charles Cobia has been caused to suffer permanent scarring of his face, pain, suffering and inconvenienée, mental disability, some impairment of memory and‘other injuries which it is unnécessary here to evaluate in view of the awarded compensation. . 4. That plaintiff Charles Cobia by the acceptance of benefits under the Compensation Act following his. filing of an application before the Bureau of Em- | B-10 1 er. | ee Nee Pee Pe - ¥ bd ~ I ananassae oe wnt Ron nib ete eam ° S ployee’s Compensation is estopped now to assert that such award