(dissenting).
This is an appeal by the United States from a decree of the District Court for the District of New Jersey ordering the United States to pay to the petitioner, Rabinowitz, $2,134.40 without interest and without costs.
The petitioner, while enlisted in the United States Army as a field clerk,, was on duty at Hoboken, N. J. He resided in Paterson, and was allowed to go to his home each afternoon and return to duty the next morning. The petitioner was taken seriously ill, and, although he was attended by the army physician, he made no application to the commanding officer for his care and no authority for his care was given by that officer. . The expenses for his medical and hospital care and nursing were paid by him, and for those expenses and expenses for care by his mother he brought suit against the United States. It is claimed that the expenses are recoverable under the Army Appropriation Act for the year 1919 (40 Stat. c. 143, p. 866), which provides: “ * * * For medical care and treatment not otherwise provided for, including care and subsistence in private hos-*461pitáis, of officers, enlisied men, and civilian employees of the Army * * : Provided further, That this shall not apply to officers and enlisted men who are treated in private hospitals or by civilian physicians while on furlough.”
Paragraph 1476 of the Army Regulations of 1913 provides: “When medical treatment, including medicine, nurses and hospital care, is required by an officer, an enlisted man * * * which can not otherwise be liad, the commanding officer may employ the unces-; sary civilian service to furnish the same, and just accounts therefor will be paid by the medical department. When * * * the enlisted man is on duty where there is no officer, lie “ * * may arrange for the required service.”
The trial judge made the following findings of fact:
“1. That there were ample hospital and medical facilities in the Army in the Hoboken District at the time plaintiff ineuned the expense in question.
“2. That this expense was not ineuned by the Commanding Officer or authorized by him.
“3. That the plaintiff was on duty at the Hoboken Port of Embarkation where there was a Commanding Officer in charge.”
I am constrained to dissent from the statement made in the majority opinion that the petitioner was on duty in Paterson within the meaning and spirit of the Appropriation Act and the Army Regulation covering the period of the illness-. As I read the testimony and the record, the petitioner was off duty when he left Hoboken. Therefore the conditions did not exist which authorized him to arrange for the required service. •
28 USCA § 41, subd. 20, authorizes suit against the United States upon all claims not exceeding $10,000’ founded upon fhe Constitution or auy law of Congress or upon any regulation of an executive department or upon any contract, express or implied. There was no express contract, and an implied contract must be implied in fact and not based upon equitable considerations and implied in law. United States v. Minnesota Investment Company, 271 U. S. 212, 46 S. Ct. 501, 70 L. Ed. 911. The conditions upon which the suit may be brought are established by the act and the regulation. The medical officers were not the petitioner's commanding officers, and their acts were not such as to raise any implication of authority conferred upon them by the commanding officer, by whom that authority must expressly be granted.
The petitioner below clearly did not come within the provision of the last sentence of paragraph 1476 of the Army Regulations, for he was not on duty where there was no officer, but was on duty where there was a commanding officer. He therefore had no authority to bind the United States by arranging for the required service.
The decree should be reversed.