
    THOMAS L. MORROW v. THE UNITED STATES
    [No. F-328.
    Decided February 20, 1928]
    
      On the Proofs
    
    
      Retnribursement of medical expenses, Navy; sec. 1586, R. 8.; cancellation of leave during illness; restoration to duty status. — The plaintiff, an officer in the Medical Corps of the Navy, while on duty became ill, upon, application was given leave of absence and repaired to his home. While there he was placed in a civilian hospital and his leave immediately canceled. Held, that cancellation of leave under circumstances which prevented the resumption of military dúties, did not constitute a restoration to duty status, and the expenses of medical attention at the hospital not being' incurred when he was on duty, sec. 1586, Revised Statutes, prohibits their reimbursement.
    
      The Reporter’s statement of the case:
    
      Mr. Cornelius H. Bull for the plaintiff. Mr. George A. King and King & Kim,g were on the brief.
    
      Mr. MoClwre Kelley, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Mr. Frank J. Kedtvng was on the brief.
    The court made special findings of fact, as follows:
    I. At all the times hereinafter mentioned plaintiff was a lieutenant of the Medical Corps in the United States Navy.
    II. While on duty at the naval hospital, Norfolk, Va., plaintiff became ill on April 8, 1925, and was confined to his quarters under medical attention until April 24, 1925, when he requested and obtained of his commanding officer, Capt. Charles M. DeValin, an order for six days’ leave of absence, commencing April 27, 1925, to enable him to visit his home at Mebane, N C., to recuperate. Plaintiff left the Norfolk Navy Yard immediately, and after a twelve-hour journey reached his home, where on April - 30, 1925, he became unconscious.
    III. Dr. William R. Stanford, a civilian physician, was immediately called upon to attend him, and after a diagnosis of his condition recommended that he be taken at once to Watts Hospital at Durham, N. C., for prompt medical treatment. On April 30, 1925, plaintiff was taken by' Doctor Stanford by automobile to Watts Hospital and entered therein as a patient. Watts Hospital was a civilian institution not connected in any way with the United States Government.
    IV. Upon hearing that he was to be placed in a civilian hospital, plaintiff requested that his aforesaid commanding -officer at Norfolk, Capt. Charles M. DeValin, be notified by telephone. On April 30, 1925, Doctor Stanford communicated with Commander Sellers, the executive officer of Captain DeValin at Norfolk, Va., by telephone and notified him of the critical physical condition of the plaintiff and what had been done for him. Commander Sellers at once informed Captain DeValin that plaintiff was seriously ill and had been removed from his home to Watts Hospital. Captain DeValin immediately canceled plaintiff’s leave of absence and directed that he be given every proper care and attention at Watts Hospital until a Navy medical officer could be sent to care for him. The superintendent at Watts Hospital was on April 30, 1925, notified by Commander Sellers that plaintiff’s leave orders had been revoked and was instructed to care for him untjl he could be removed to Norfolk.
    V. On May 1, 1925, the Bureau .of Navigation ordered the commandant of the fifth naval district to direct a medical officer and an attendant to proceed to Durham, N. C., to care for plaintiff and bring him to the naval hospital at Norfolk, Va. On May 3, 1925, Lieutenant Sabiston, of the Medical Corps, arrived at Durham for this purpose. On May 5, 1925, the Bureau of Navigation by dispatch canceled the remainder of leave granted plaintiff by the commandant of the fifth naval district and ordered plaintiff to continue treatment at Watts Hospital until able to travel to the naval hospital at Norfolk, Va.
    VI. Plaintiff remained under medical treatment at Watts Hospital at Durham, N. C., from, April 30 to May 8, 1925. On this date he was sufficiently recovered to permit his safe removal to the naval hospital at Norfolk, Va. He was accordingly admitted to said naval hospital at Norfolk, Va., on May 8, 1925.
    VII. The nearest medical supplies to which plaintiff might have had recourse were at Norfolk, Va. There was no naval medical officer in the vicinity of plaintiff’s home or at Durham, N. C., who could have attended h,im and it became necessary to employ civilian physicians and nurses to attend him.
    VIII. During the period April 30, 1925, to May 8, 1925, while at Watts Hospital, Durham, N. C., plaintiff incurred expenses for civilian medical attention amounting to $610.55. For said expenses plaintiff has not been reimbursed by the United States.
    The court decided that plaintiff was not entitled to recover.
   Moss, Judge,

delivered the opinion of the court:

Plaintiff, Thomas L. Morrow, while on'duty as a lieutenant, United States Navy, in the United States Pharmacist Mates’ School, which was connected with the Norfolk Naval Hospital, became seriously ill on April 8, 1925, and from that date until April 27,1925, was confined to his quarters under the care and treatment of naval medical officers attached to the hospital. On his own application plaintiff was granted a leave of absence for six days, commencing April 27, 1925. He proceeded at once to his home at Me-bane, N. C. His condition becoming worse he was removed to a civilian hospital at Durham, N. C., on April 30, 1925, where he remained until May 8, 1925. This action is for the recovery of the amount expended by plaintiff for hospital and medical treatment at that institution. If plaintiff is entitled to recover he should receive $610.55.

On April 30, 1925, immediately upon plaintiff’s arrival at the hospital at Durham the commanding officer at Norfolk canceled the remainder of plaintiff’s leave of absence. It ¿s the contention of plaintiff that the cancellation of the leave of absence automatically restored his duty status and brings his claim within the operation of section 1586, Revised Statutes, which reads as follows:

“ Expenses incurred by any officer of the Navy for medicines and medical attendance shall not be allowed unless they were incurred when he was on duty, and the medicines could aiot have been obtained from naval supplies, or the attendance of a naval medical officer could not have been had.”

The court is unable to agree with plaintiff’s theory. In order to be entitled to reimbursement in this case it must be shown that plaintiff was in a duty status. On and after April 27, 1925, when plaintiff left the Norfolk Naval Hospital he was on leave of absence, and was actually absent from his station or post of duty. The mere cancellation of the leave of absence on April 30, 1925, could not reasonably be construed as restoring the duty status. The language of the statute is plain and free from ambiguity. Its purpose and intention are equally clear. The Government maintains well-equipped hospitals at posts and stations, with medical supplies, and a corps of efficient and capable medical officers. An officer, or other member of the service, in the Army or Navy, when on duty at such posts or stations, is entitled to medicines and to medical treatment free of charge. If'on detached duty at a place where such medicines and treatment were not available he might be reimbursed for necessary expenditures for such service. In no circumstances is he entitled under the law to reimbursement unless such expenses were incurred when he was on duty. To have ordered plaintiff to his post of duty at the Norfolk Naval Hospital at the time of the cancellation of the leave of absence would have been a vain thing. He was a desperately sick man, completely incapable of performing any service whatever, and had been in that condition since April 8, 1925. Conscious of the imminent need for medicines and medical treatment, and chargeable with a knowledge of the law and regulations affecting his rights in the premises, he voluntarily removed himself from a naval hospital where every reasonable facility for his treatment obtained, and went to his home at Mebane, N. C., beyond the reach of the medical officers and the medicinal supplies of the Navy. Plaintiff’s claim does not come within the meaning and intent of the statute, and he is not entitled to recover, and it is so ordered.

Gkaham, Judge; Booth, Judge; and Campbell, Ohief Justice, concur.  