The opinion of the court was delivered by: WATSON
This action is brought under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq.
The alleged basis of the Court's jurisdiction is that Stanley Perucki, Plaintiff, suffered injury as a result of an examination by Dr. Agostini, an employee of the Veterans' Administration, for the purpose of obtaining information to be used in considering Plaintiff's appeal from a reduced rate of disability compensation for service incurred injuries
Subsequent to the filing of the Complaint, the Defendant, the United States of America, filed a motion to dismiss for failure to state a claim upon which relief might be granted. At that time, the Defendant contended the case to be analogous to those in which a charitable institution is the defendant, and that the rule of respondent superior does not apply in the case of injuries occasioned by the negligence of agents or servants of charitable institutions. After hearing on the motion, it ,as denied by the Court, and, in doing so, the Court stated (76 F.Supp. 35): 'In view of the novelty and difficulty of the question of the relationship of the doctor to the defendant, this Court concludes that the motion should be denied at this time without prejudice. The proper application of the Act may become clearer on further proceedings.'
From the evidence the following facts appear:
1. Plaintiff, Stanley Perucki, enlisted in the Army on September 24, 1943, and was honorably discharged from the Army on December 12, 1945.
2. On January 28, 1946, Plaintiff was rated fifty percent disabled from December 13, 1945 for injuries incurred in the service while in Italy, during World War II., when a bullet perforated his right thigh.
3. On May 2, 1946, Plaintiff was examined by doctors at the Veterans' Administration, and, as a result of that examination, Plaintiff was rated thirty percent disabled from May 13, 1946. Plaintiff has received compensation for this disability to the present time.
4. Plaintiff appealed from the reduction in his rate of disability and, on October 8, 1946, he received notice to report to the Veterans' Administration Office for an examination to obtain information in support of his appeal.
5. In response to this notice, Plaintiff reported to the Veterans' Administration Office in Scranton, Pennsylvania on October 14, 1946, and was assigned to Dr. Agostini.
6. Dr. Agostini was, on October 14, 1946, a duly licensed Doctor of Medicine in the Commonwealth of Pennsylvania, and was at that time serving as a full time doctor employed by the Veterans' Administration.
7. In the course of this examination, Dr. Agostini tested Plaintiff's legs for reflexes by jabbing a needle in Plaintiff's legs, by hitting Plaintiff's knees with a small mallet, and by applying lighted matches to Plaintiff's legs.
8. In the course of this examination, Dr. Agostini applied three lighted matches to Plaintiff's right leg and one lighted match to Plaintiff's left leg.
9. As a result of the application of these lighted matches. Plaintiff received fourteen burns on his right leg and three burns on his left leg, all of which were about two finger lengths above the knee.
10. Some of the burns received by the Plaintiff were the size of a match head, and the remaining burns were smaller than the size of a match head. The burns on the right leg extended for about an inch and a half, ...