attributable in part to his own wrong.'
Plaintiff's argument that he was entitled to rely on the Navy Department to advise him of the status of his tuberculosis condition, even though he was advised of the spot on his lung in December 1952, is contrary to the Pennsylvania rule that no person in full possession of his senses is justified in relying solely on the watchfulness of another or others for his own safety, even though the law imposes a duty on them to warn of latent dangers known to them. See Hoffner v. Bergdoll, 1933, 309 Pa. 558, 565-566, 164 A. 607; Bartek v. Grossman, 1947, 356 Pa. 522, 525-527, 52 A.2d 209; Bream v. Berger, 1957, 388 Pa. 433, 130 A.2d 708; Sloss v. Greenberger, 1959, 396 Pa. 353, 355-356, 152 A.2d 910; and cases cited in those cases.
The Government contends that the plaintiff cannot recover under the Federal Tort Claims Act, 28 U.S.C.A. § 2674, because his claim comes under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq. (hereinafter 'FECA'). It is settled that if the Government is liable to the plaintiff under the FECA for the injuries alleged, his remedy under that statute is exclusive and he cannot proceed against the United States in any other manner. 5 U.S.C.A. § 757(b); Johansen v. United States, 1953, 343 U.S. 427, 72 S. Ct. 849, 96 L. Ed. 1051; Patterson v. United States, 1959, 359 U.S. 79 S. Ct. 936, 3 L. Ed. 2d 971. However, a very difficult question is presented as to whether the FECA applies to the injuries alleged to have been sustained by the plaintiff in this particular case.
Questions as to the scope and meaning of the FECA rarely come before the courts. All claims under this Act are handled by an administrative body and there is no judicial review of the Commission's decisions. 5 U.S.C.A. § 793; Hancock v. Mitchell, 3 Cir., 1956, 231 F.2d 652; Blanc v. United States, 2 Cir., 1957, 244 F.2d 708, certiorari denied 1957, 355 U.S. 874, 78 S. Ct. 126, 2 L. Ed. 2d 79; Calderon v. Tobin, 1951, 88 U.S. App.D.C. 134, 187 F.2d 514, certiorari denied 341 U.S. 935, 71 S. Ct. 854, 95 L. Ed. 1963. Therefore, the courts are only called upon to interpret and apply the FECA on the infrequent occasions when it is raised collaterally such as this.
On the other hand, because of their constant contact with the Act and claims filed under it, the compensation authorities are acutely aware of the problems involved, are more cognizant of the ramifications of any interpretation dealing with the scope of the Act, and have acquired valuable experience in this field. Thus, while the courts must not abdicate their decision-making function when it involves this particular area of the law, they should give great weight to any decisions by the administrative agency which is better equipped to determine and apply the policies Congress had in mind when it enacted the FECA.
Unfortunately, Mr. Somma has not endeavored to obtain compensation for his injury under the FECA. Two cases cited by the Government, Matter of Dombach, 8 E.C.A.B. 389 (1959), rehearing denied, 8 E.C.A.B. 581 (1956), and Matter of Knowles, 6 E.C.A.B. 180 (1953), are helpful on the question as to whether the plaintiff's alleged injuries were 'sustained while in the performance of his duty' (5 U.S.C.A. § 751(a)), but not on the more difficult question as to whether he suffered an 'injury' within the meaning of the FECA (5 U.S.C.A. § 790(g)).
Furthermore, we do not know on what grounds the Commission denied relief in the somewhat comparable situation presented in Reid v. United States, 5 Cir., 1955, 224 F.2d 102, relied on by the plaintiff. It may not have turned on the application of the Act to the claim, but rather upon a defect in the procedure followed or a deficiency in the proof of the claim. Therefore, we are not favored with any expression of their views on this question.
The matter is further complicated by the possibility that the Commissioners might not agree with this court should it dismiss the suit on the ground that the plaintiff has a claim under the FECA. Plaintiff might, therefore, be left remediless because of conflicting decisions by two arms of the Government, with no review of the Commission's decision available.
Under these circumstances, it seems that the most prudent course for this court to follow would be to refrain from expressing an opinion on this point, but to state that if the finding and legal conclusion of contributory negligence barring the action should be set aside,
the case will be stayed until the plaintiff has pursued his remedies under the FECA.
Cf. Federal Maritime Board v. Isbrandtsen Co., 1958, 356 U.S. 481, 496-499, 78 S. Ct. 851, 2 L. Ed. 2d 926; General American Tank Car Corp. v. El Dorado Terminal Co., 1940, 308 U.S. 422, 60 S. Ct. 325, 84 L. Ed. 361; 3 Davis, Administrative Law Treatise, §§ 19.01, 19.07 (1958).
All Requests for Findings of Fact and Conclusions of Law which are inconsistent with the foregoing are denied.
Defendant's Requests for Conclusions of Law (Document No. 18) numbered 9 and 10 are adopted as Conclusions of Law of the court in addition to the foregoing.
And now, January 22, 1960, it is ordered that judgment shall be entered for the defendant, United States of America, and against the plaintiff, Annunzio M. Somma, with costs, without prejudice to plaintiff's right to proceed for compensation under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq.