DENNY et ux. v. UNITED STATES.
No. 12345.
United States Court of Appeals Fifth Circuit.
Dec. 17, 1948.
Rehearing Denied Jan. 21, 1949.
171 F.2d 365
There was no error committed by the trial court in its ruling upon the motions of the appellant, filed by him when he was returned for the purpose of preparing this record on appeal, seeking to correct the record as to his arraignment and to have the record recite that his attorney was absent from the court room when the jury returned its verdict. The record in the case shows that Judge Murphree, who presided when he was arraigned and tried, is dead, but other witnesses were present and testified upon these motions that the appellant‘s attorney was present when the verdict was received, and testified very clearly that the appellant waived his right to have counsel present at his arraignment. The record shows in the case that the appellant is not a novice in the court room, but that, on the contrary, he has been in court previous to that time, dating as far back as 1932, as shown by the appellant‘s own testimony; that, as a matter of fact, on this particular charge he was arrested in California and he resisted being returned for trial in Alabama, but after a hearing he was returned, and at the time of his arraignment his sister and professional bondsmen were present. Moreover, when appellant‘s case was originally called for a hearing by this court, we were informed that he had then forfeited his bond and was a fugitive from justice. When he was finally apprehended and returned, he was permitted to establish his bill of exceptions and perfect this appeal. We mention these circumstances simply for the purpose of showing that he is not an uneducated or illiterate person. He entered a plea of not guilty and it was a month before he was placed on trial, at which time he had counsel of his own choosing. He denied waiving his right to have counsel and denied that his counsel was present when the jury returned its verdict, but upon the conflicting testimony on these issues, the court below found the facts against him, and in this finding we agree with the court. The trial court was fully justified in so finding, and the court committed no error, because it is well settled that a defendant is entitled to the presence of counsel at all stages of the trial unless he waives it. House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L. Ed. 407; Van Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316. This right to have the presence of his counsel can be waived if intelligently done. Authorities supra. All the facts and circumstances in this record, including the finding of the trial court, make it clear that he intelligently waived his right to have counsel present at his arraignment, and that his counsel was present when the verdict of the jury was received.
We have examined this record carefully and considered all errors assigned, although not raised, and those saved at the hearing and conclude that all of the assignments of error are without merit and the judgment of the court below should be affirmed.
Affirmed.
John C. Hoyo and R. H. Mercer, both of San Antonio, Tex., for appellants.
Henry W. Moursund, U. S. Atty. and Joel W. Westbrook, Asst. U. S. Atty., both of San Antonio, Tex., for appellee.
Before HUTCHESON, SIBLEY, and McCORD, Circuit Judges.
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,
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 was beginning her labor,
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.
“* * * 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.
We find no reversible error in the record, and the judgment is therefore
Affirmed.
SIBLEY, Circuit Judge (concurring).
As the original complaint read it seems to me to be a suit by plaintiffs to recover damages for the negligent homicide of their child born dead. No other injury was alleged. Nor was it alleged that the furnishing of medical treatment by the Government hospital was practicable. I do not think the Texas death statute gives parents any right to sue for the death of a child which has never breathed. There was no error in the original dismissal.
But immediately the plaintiff moved to set the dismissal aside and be allowed to plead and prove that the treatment of the wife was entirely practicable, and that long prior to the birth the officials of the hospital gave assurance that the desired medical service would be given her, and that they did in fact attend her and give her medical attention prior to the date of birth, and when on that date an ambulance was requested to take her to the hospital they advised the ambulance was on the way. It seems to me that the duty of the medical officers of the army to attend the families of officers and soldiers is not discretionary, but only conditioned on the fact of practicableness, and the facts proposed to be proved show practicableness, recognized and admitted by the hospital. But the proposed pleading still does not allege any injury save that the child died in birth, which is not an actionable injury in Texas.