Rehearing En Banc
Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges. HAYS, Circuit Judge,with whom Judges CLARK, WATERMAN, SMITH and MARSHALL concur.
concur.
The question presented by this case is whether a prisoner in a federal penitentiary may sue the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674-2680 (1958), for injuries incurred as the result of the negligence of prison officials. The ease was originally heard by a panel consisting of Judges CLARK, HINCKS and KAUFMAN and the question was resolved, Judge KAUFMAN dissenting, in favor of the right of the prisoner to sue. The issue being important, and the decision of the panel in conflict with the decisions of two other Courts of Appeals1 and several federal district courts,2 rehearing en banc was ordered by a majority of the circuit judges of the Circuit who are in active service.3 (See 28 U.S.C. § 46(c) (1958).) We have reached the same conclusion as did the majority of the panel. The order of the district court dismissing the complaint is reversed.
We adopt as our own the opinion of Judge HINCKS, appearing at 305 F.2d 254 (1962), and refer to it for a statement of the facts. We think it desirable, by way of response to certain arguments raised in the course of our reconsideration of this matter, to analyze briefly several of the considerations which we believe lend additional support to the conclusion which we have reached.
*265I.
The Federal Tort Claims Act authorizes federal district courts to entertain civil actions against the government when compensation is sought (1) for injury to person or property, (2) caused by the negligence of a government employee acting within the scope of his office or employment, (3) in “circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b) (1958).
Winston seeks compensation for personal injuries allegedly attributable to negligent medical diagnosis and treatment by the responsible personnel of a federal penitentiary in Terre Haute, Indiana. The first two requirements of the statute are thus satisfied. As to the third requirement — that private persons be liable under like circumstances — Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), provides the necessary guidance. There the Supreme Court held the government liable for negligent operation of a lighthouse. The Court rejected the government’s argument that it was immune from liability because private persons do not operate lighthouses.
“The Government reads the statute as if it imposed liability to the same extent as would be imposed on a private individual ‘under the same circumstances.’ But the statutory language is ‘under like circumstances’ and it is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his ‘good Samaritan’ task in a careful manner.” 350 U.S. 64-65, 76 S.Ct. 124.
See Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed. 2d 354 (1957).
The law of Indiana, “the place where the act or omission occurred,” provides for two situations in which the “circumstances” are “like” those of the case at bar; the liability of a physician or a hospital for negligent care of a patient, see Worster v. Caylor, 231 Ind. 625, 110 N.E.2d 337 (1953); Fowler v. Norways Sanitorium, 112 Ind.App. 347, 42 N.E.2d 415 (1942), and the liability of prison officials in their individual capacities-for negligent treatment of prisoners, see Magenheimer v. State, 120 Ind.App. 128, 90 N.E.2d 813 (1950); Indiana ex rel. Tyler v. Gobin, 94 F. 48 (C.C.Ind. 1899).
The present case thus comes squarely within the plain meaning of the Act.
The Act lists thirteen kinds of claims as to which immunity is not waived. None of these exceptions remotely relates to claims by persons who have suffered injury while being held in a federal prison (28 U.S.C. § 2680 (1958)). The House Report on the bill which later became the Federal Tort Claims Act stated that:
“The present bill would establish a uniform system authorizing the administrative settlement of small tort claims and permitting suit to be brought on any tort claim * * * with the exception of certain classes of torts expressly exempted from operation of the act.” (Emphasis supplied.) H.R.No.1287, 79th Congress, 1st Sess. 3 (1945).
The care with which Congress detailed the express exclusion from the coverage of the Act of those situations in which the right of recovery was considered undesirable (H.Rep.No.1287, supra at 5-6 (1945)), leaves no room for the exception of additional situations which would otherwise be covered by the statute.
“There is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it.” Rayonier, Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957).
II.
If, in spite of the unambiguous character of the statute, resort is had to the *266legislative history,. that history, insofar ras- it is relevant at all to the question . now before.us, tends to support a broad application of the Act and, more, specifically, the coverage of federal prisoners.
The purpose of the Federal Toft Claims Act was to give to the district courts jurisdiction over tort claims 'against the Government for which the only existing remedy was private relief ' legislation. The act was passed concurrently with legislation prohibiting .private bills and relegating claimants to the newly created judicial remedy. 60 Stat. 831 (1946); 2 U.S.C.A. § 190g. .The system of private bills led to inequalities in the administration of justice and imposed a heavy burden on Congress.4 H.Rep.No.1287, supra at 2 et ;Seq.; Sen.Rep.No.1400, 79th Congress, 2d Sess. 30-34. Claims arising out of prison injuries contributed to the burden from which Congress sought relief.
Directly relevant to the present case is congressional consideration of the prevailing New York practice. In 1929 New York State enacted a statute waiving sovereign immunity from tort liability. Laws of -New York, 1929, ch. 467.* The House Report on the Federal Tort claims Act, supra at 3 took express note of the New York statute and of the state’s experience with it and concluded that “[sjuch legislation does not appear to have had any detrimental or undesirable effect.” The Report notes that the New York “legislation went much . further than the pending bill, because no exceptions to liability and no maximum limitation on amount of recovery was prescribed,” leaving the inference that in all other respects the New York legislation was the same as the bill they were considering. It was then settled New York law that, under the waiver of immunity statute, a prisoner could recover for injuries resulting from negligent treatment at the hands of the prison authorities. Paige v. New York, 269 N.Y. 352, 199 N.E. 617 (1936); Sullivan v. State, 257 App.Div. 893, 12 N.Y.S.2d 504, aff’d, 281 N.Y. 718, 23 N.E.2d 543 (1939); White v. State, 260 App.Div. 413, 23 N.Y.S.2d 526 (1940), aff’d, 285 N.Y. 728, 34 N.E.2d 896 (1941); Kurtz v. State, 183 Misc. 991, 52 N.Y.S.2d 7 (Ct.Cls.1944). Since the House Committee examined the practice under the New York law, and made no exception for claims by prisoners, it may safely be assumed that the intent was to encompass such claims.5
*267III.
Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which held that a member of the armed services could not bring an action under the Federal Tort Claims Act for injuries resulting from negligence of other military personnel, does not require that we reach any different conclusion from that to which a reading of the statute leads us. The decision in that case was rested chiefly on four considerations which we now proceed to examine in the light of the present case.
1. The Court pointed out that plaintiffs could not satisfy the requirement of the statute that claims will be entertained “under circumstances where the United States, if a private person, would be liable to the claimants in accordance with the law of the place where the act or omission occurred.”
“It will be seen that this [the act] is not the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence. * * * One obvious shortcoming in these claims is that plaintiffs can point to no liability of a ‘private individual’ even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. * * * We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.”
340 U.S. at 141-142, 71 S.Ct. 157. But see Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 377, 1 L.Ed. 2d 354 (1957)6
*268This argument is not applicable to the case at bar because there is a close analogy in the private liability of prison officials which is well known in American law, see Hill v. Gentry, 280 F.2d 88 (8th Cir.), cert. denied, 364 U.S. 875, 81 S.Ct. 119, 5 L.Ed.2d 96 (1960); Indiana ex rel. Tyler v. Gobin, supra; Asher v. Cabell, 50 F. 818 (5th Cir. 1892); Magenheimer v. State, supra; Smith v. Miller, 241 Iowa 625, 40 N.W.2d 597, 14 A.L.R.2d 345 (1950); O’Dell v. Goodsell, 149 Neb. 261, 30 N.W.2d 906 (1948); Hixon v. Cupp, 5 Okl. 545, 49 P. 927 (1897); Kusah v. McCorkle, 100 Wash. 318, 170 P. 1023, L.R.A.1918C, 1158 (1918).7
2. The Court noted that the purpose of the Act was to transfer responsibility for the processing of tort claims from Congress to the Judiciary.
“This Act, however, should be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole. * * The primary purpose of the Act was to extend a remedy to those who had been without * * * Congress was suffering from no plague of private bills on the behalf of military and naval personnel, because a comprehensive system of relief had been authorized for them and their dependents by statute.”
340 U.S. at 139-140, 71 S.Ct. at 156.
Of course, this consideration has no application whatsoever to the case at bar. Federal prisoners have, with a limited exception, no alternative means of redress and private bills on their account unquestionably demanded the attention of Congress. If federal prisoners are held outside the intended scope of the Act, Congress will continue to be faced with private bills for their relief, the very evil the waiver was designed to avoid. Thus, a rule of construction favoring the attainment of an “equitable whole” is persuasive of liability in this case.
3. The Court noted that the relationship between the Government and members of the armed services is “exclusively federal,” i. e., did not in any sense depend on the operation of state law, and that Congress had manifested its intent that it remain so in the area of compensation for personal injuries by enacting “systems of simple, certain, and uniform compensation for injuries or death of those in the armed services.8 The compensation system, which normally requires no litigation, is not negligible or niggardly, as these cases demonstrate. The recoveries compare extremely favorably with those provided *269by most workmen’s compensation statutes.” 340 U.S. at 144-145, 71 S.Ct. at 158. It was thought that the absence of any provision adjusting the two possible remedies was persuasive that Congress did not intend the waiver of immunity to apply to military personnel. 340 U.S. at 144, 71 S.Ct. at 158.
This point too is inapplicable to the case at bar. The relationship between the Government and federal prisoners is not “[wjithout exception * * * governed exclusively by federal law.” Federal statutes relating to the penal system provide that certain of its operations shall depend on state law. See 18 U.S.C. § 3566 (1958) (death sentence to be carried out in accordance with the law of the place where the sentence is imposed); 18 U.S.C. § 4082 (1958) (federal prisoner may, at Attorney General’s option, be confined in state penitentiary). See also Rosenberg v. Carroll, 99 F.Supp. 630 (S.D.N.Y.1951); Fields v. United States, 27 App.D.C. 433, 450 (1906), cert. denied, 205 U.S. 292, 27 S.Ct. 543, 51 L.Ed. 807 (1907) (federal prisoners confined in state penitentiary are “subject to the same discipline and treatment as those sentenced in a state court”).
There is no “simple, certain, and uniform” system of “compensation for the injuries or death” of federal prisoners which would evidence an intent to provide an exclusive remedy. At the time of the passage of the Act, there existed only a provision authorizing administrative compensation, without regard to fault, for injuries to federal prisoners incurred while working in prison industry. 48 Stat. 1211 (1934), as amended, 18 Ü.S.C. § 4126 (1958).9 Since some prisoners are never so engaged, see Note, 63 Yale L.J. 418, 424, n. 48 (1954), and others devote only a fraction of their time to such activity, this provision covers only a very small portion of the injuries that are sustained by federal prisoners and actually does no more than apply the principles of the Federal Employees Compensation Act10 to federal prisoners when they are working as federal employees. As Judge HINCKS stated in his opinion, “[I]n comparison with the military compensation program, 38 U.S.C. § 700 (1958), [now § 101(13) ], which affords relief for virtually all service-incurred injuries, see 340 U.S. at 145, 71 S.Ct. 153, the prison work-compensation plan is vastly less comprehensive and is in no real sense a substitute for tort liability.” 11
4. The Court stated that since a member of the armed services has no choice whatsoever over his location, it “makes no sense * * * [t]hat the geography of an injury should select the law to be applied to his tort claims.” 340 U.S. at 143, 71 S.Ct. at 158.
This consideration is, of course, equally applicable to suits by prisoners. However this argument by itself cannot be accepted as dispositive. To give it major importance one would have to believe that people who are free to move about at will are influenced in their itineraries by consideration of the law of the various states as to tort liability. A realistic appraisal of the situation would suggest that the law governing a suit for personal injury is in fact as unlikely to be a matter of free and conscious choice for others as it is for prisoners.
Although the arguments, other than the last, on which the result in Feres was rested seem highly persuasive, the Supreme Court expressed a lack of firm assurance of the correctness of its determination, stating that “[u]nder these circumstances, no conclusion can be above challenge, but if we - misinterpret the Act, at least Congress possesses a ready remedy” 340 U.S. at 138, 71 S.Ct. at 155 and that “[tjhere is as much statutory authority for one as for another of these conclusions” Id. at 144, 71 S.Ct. at *270158. These expressions of doubt must be taken as a strong warning of the impermissibility of finding exceptions to the statute in situations which do not depend upon the grounds advanced in Feres.
IV.
In spite of the clarity of the language of the Act, the indications of coverage in the legislative history, and the absence of relevant authority in the Supreme Court or in this court, we are called upon to examine arguments asserted to cast doubt on the wisdom of applying the Act to prisoners, and to conclude from them that such application was not “intended.” In construing the Federal Tort Claims Act, this would appear to be a course of dubious propriety because we have been instructed by the Supreme Court to give the Act a liberal construction consistent with the broad purpose underlying its enactment. See, for example, United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 216, 94 L.Ed. 171 (1949):
“In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo’s statement in Anderson v. Hayes Construction Co., 243 N.Y. 140, 147, 153 N.E. 28, 29-30: ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’ ”
See also Rayonier Inc. v. United States, supra, 352 U.S. at 320, 77 S.Ct. at 377, 1 L.Ed.2d 354; Indian Towing Co. Inc. v. United States, supra, 350 U.S. at 64-65, 76 S.Ct at 124, 100 L.Ed. 48.
However even if we were to attempt “to guess what [Congress] would have intended on a point not present to its mind, if the point had been present,” 12 using as a basis our view of the wisdom or unwisdom of giving the Act its apparently intended scope, none of the arguments advanced in the original dissenting opinion, the government’s argument or the decided cases, succeeds in persuading us that it is desirable to read into the statute an exception for prisoners.
It is suggested that the susceptibility of the Government to suit by prisoners will adversely affect prison discipline and require the courts improperly to interfere with the operation of the prison system.13 See Sigmon v. United States, 110 F.Supp. 906, 910 (W.D.Va. 1953). We need not speculate on the question but may resort to the result of the experience with liability of prison officials in their personal capacities, see cases cited supra and Annotation, 14 A.L.R.2d 353 (1950), and direct liability where suits have been permitted under waiver of immunity statutes, see Paige v. New York, supra; Moore v. State, No. 4068, Ill.Ct.Cls. (1948), cited, 63 Yale L. J. 418, n. 52 (1954); Shields v. Durham, 118 N.C. 450, 24 S.E. 794, 36 L.R.A. 293 (1896); Hargrove v. Cocoa Beach, 96 So.2d 130 (Sup.Ct.Fla.1957); Turner v. Peerless Ins. Co., 110 So.2d 807 (La.App. 1959). Although these situations in which prisoners recover for negligent injury have existed for many years, and although prisoners have repeatedly been successful in the courts, there is no indication that discipline has been impaired. We refer again to the statement of the House Committee considering the Act which examined New York practice un*271der that state’s statute waiving sovereign immunity and found that the statute had had no “detrimental or undesirable effect,” notwithstanding the fact that New York had repeatedly allowed recovery by prisoners. See cases cited supra.
It is difficult, even in theory, to understand how coverage of federal prisoners by the Tort Claims Act would undermine prison discipline.14 Prison officials are free to discipline prisoners and run the prisons as they think best. See 18 U.S.C. § 4042 (1958). Intentional torts are not cognizable under the Act, see 28 U.S.C. § 2680(h) (1958), and there can therefore be no question of the courts’ reviewing affirmative acts of discipline or providing, through the possibility of resort to the courts, an incentive for resistance by prisoners. Only if injury results to a prisoner as a consequence of an act or omission, not intended to cause injury, which falls below the standard of care of a reasonable man acting in such a situation, will recovery be allowed.15 Moreover, to an extent which it is not now necessary to examine, the exemption from liability of acts which involve the exercise of discretion will also protect against unwarranted interference with the operation of the penal system16
V.
Much is sought to be made of the lack of uniformity that will result from the incorporation by the Federal Tort Claims Act of the rules of tort law of the place of the Act. But inconsistency in the results has no special application to prisoners. It will occur in any class of suits brought under the Act.
The only bases advanced for considering non-uniformity a reason for not applying the Act are (1) that it makes “no sense” 17 to apply the law of a state that the injured person did not choose to enter, see Berman v. United States, 170 F.Supp. 107, 109 (E.D.N.Y.1959); Van Zuch v. United States, 118 F.Supp. 468, 472 (E.D.N.Y.1954), and (2) that the federal obligation to federal prisoners should be uniform, see Lack v. United States, 262 F.2d 167 (8th Cir. 1958); Jones v. United States, 249 F.2d 864 (7th Cir. 1957); Van Zuch v. United States, supra; Sigmon v. United States, 110 F.Supp. 906 (W.D.Va.1953).
(1) In enacting the Tort Claims Act, Congress had the choice of incorporating the tort law of the various states or creating a federal tort law for the sole purpose of deciding tort claims against the Government. See Richards v. United States, 369 U.S. 1, 7, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). In choosing the former, the simpler expedient was adopted. In specifying the law of the place where the act or omission occurred, Congress selected a law which had a rational relation to the incident and which the district courts were skilled in applying. But there is no evidence that the application of this law was provided because it gave the injured person an opportunity *272to choose the governing law.18 Surely, if Congress had subscribed to the notion that persons plan their activities on the basis of interstate differences in tort law, and that therefore the governing law should be that “selected” by the injured person, it would have provided, in accordance with the rule followed by the vast majority of the states,19 that liability be determined by the law of the place of injury, rather than “the law of the place where the act or omission occurred.” 20 By incorporating the law of the place of the alleged negligent act or omission, Congress may have intended that the obligation of federal employees be consistent with the law of the place in which they were employed; but, whatever the purpose of the provision, it is clear that it bears no relation to any choice of applicable law by the injured person.
(2) A persuasive argument can be made for uniformity in the rights of federal prisoners for injuries negligently inflicted by prison officials. However, the same argument would support equal treatment for all persons injured as a result of the negligence of federal employees, and that is not the statutory scheme. Non-uniformity cannot justify an exception for prisoners when non-uniformity is expressly incorporated in a fundamental provision of the Act. There is no more reason why a prisoner should be denied recovery because under the law of some other state he might not be able to recover than there is why any other person should be denied recovery on that ground.
VI.
Finally our attention is directed to certain instances of congressional activity and inactivity that are asserted to be relevant to the decision.
It is suggested that Congress has, by its failure to amend the statute, ratified the results reached by lower federal courts in holding that prisoners are outside the intended scope of the Act. The repeated refusals of the Supreme Court to accept this rule of construction provide a sufficient answer to this suggestion. “It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.” Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946) . “[I]t would take more than legislative silence in the face of rather recent contrary decisions by lower federal courts to overcome the factors upon which we have placed reliance. * * * We do not expect Congress to make an affirmative move every time a lower court indulges in an erroneous interpretation.” Jones v. Liberty Glass Co., 332 U.S. 524, 534, 68 S.Ct. 229, 234, 92 L.Ed. 142 (1947) .
But it is argued that congressional activity in two areas subsequent to the passage of the Federal Tort Claims Act bears on the intent of the enacting Congress: (1) the passage of private relief bills for federal prisoners, with an accompanying statement that relief has been held unavailable under the Tort Claims Act, see, e. g., Priv.L.No. 773, ch. 615, 70 Stat. A124 (1956), reported, S. *273Rep.No.1976, 84th Congress, 2d Sess. 2 (1956),21 and (2) the passage in 1961 of legislation increasing the scope of the discretionary administrative remedy of prisoners injured in the course of prison employment, with an accompanying statement that at present the injuries sought to be included could not be otherwise compensated, see 75 Stat. 681 (1961), 18 U.S.C. § 4126 (Supp. 1961), H.Rep.No. 534, 87th Congress, 1st Sess. 2 (1961).
In Rainwater v. United States, 356 U.S. 590, 78 S.Ct. 946, 2 L.Ed.2d 996 (1958), the Supreme Court answered a similar argument based upon action of Congress with respect to earlier legislation:
“Despite its surface plausibility this argument cannot withstand analysis. At most, the 1918 amendment is merely an expression of how the 1918 Congress interpreted a statute passed by another Congress more than a half century before. Under these circumstances such interpretation has very little, if any, significance. Cf. Higgins v. Smith, 308 U.S. 473, 479-480 [60 S.Ct. 355, 84 L.Ed. 406]; United States v. Stafoff, 260 U.S. 477, 480 [43 S.Ct. 197, 67 L.Ed. 358].” 356 U.S. at 593, 78 S.Ct. at 949.
See Commissioner of Internal Revenue v. Estate of Arents, 297 F.2d 894, 897 (2d Cir. 1962).
Neither the private bills nor the compensation statute was intended to alter the meaning of the Federal Tort Claims Act. Moreover, nothing presented indicates that Congress approved, rather than merely noted, the existing interpretation. The statement in the Senate Report of private law 773 that “it has been held that Federal prisoners cannot maintain such an action” (citing Van Zuch v. United States, supra, and Sigmon v. United States, supra) is a mere acknowledgment of the fact that the courts have refused to entertain such actions, and a necessary acknowledgment at that, under 2 U.S.C.A. § 190g, forbidding private bills where relief is available under the Act. The House Report on the legislation expanding coverage for injuries to prisoners engaged in prison industries noted that no alternative avenues of relief were open, a statement demonstrably true in light of the consistent course of judicial interpretation of the Act. We do not consider that the passage of this remedial legislation, which is not inconsistent in any sense with a tort remedy, should be held to eliminate a prisoner’s right to sue under the Tort Claims Act, because a committee of Congress, in reliance on judicial decisions with which we cannot agree, thought that this right did not exist. Commissioner of Internal Revenue v. Estate of Arents, supra, 297 F.2d at 897.
Reversed.
. Lack v. United States, 262 F.2d 167 (8th Cir. 1958); Jones v. United States, 249 F.2d 864 (7th Cir. 1957).
. Berman v. United States, 170 F.Supp. 107 (E.D.N.Y.1959); Van Zuch v. United States, 118 F.Supp. 468 (E.D.N.Y.1954); Shew v. United States, 116 F.Supp. 1 (M.D.N.C.1953) (alternative holding); Sigmon v. United States, 110 F.Supp. 906 (W.D.Va.1953). But see: Lawrence v. United States, 193 F.Supp. 243 (N.D.Ala.1961).
. Rehearing en banc was also ordered in Muniz v. United States, decided February 27, 1962 and reported 305 F.2d 285, in which the same issue is involved.
. The facts in the cases'could not be fully developed at Washington, far from the ; scene. The committees did not have the time to hold full dress trials, nor the proper makeup to handle them adequately. The claimant was put to considerable expense and the difficulty that Congress had , in determining validity frequently led to drastic limitation of recovery, even where the private legislation provided for permission to sue rather than authorization for payment. There were long delays. Consideration of claims was enormously burdensome, not only for members of the claims committees of the Congress but also for all the members whose con■stituents were claimants.
See United States v. Yellow Cab Co., 340 U.S. 543, 549-550, 71 S.Ct. 399, 404, 95 L.Ed. 523 (1951):
“* * * The bill became Title IV of the Legislative Reorganization Bill of 1946 at a moment when the overwhelming purpose of Congress was to make changes of procedure which would enable it to devote more time to major public issues. The reports at that session omitted previous discussions which tended to restrict the scope of the Tort Claims bill. The proceedings emphasized the benefits to be derived from relieving Congress of the pressure of private claims. Recognizing such a clearly defined breadth of purpose for the bill as a whole, and the general trend toward increasing the scope of the waiver by the United States of its sovereign immunity from suit, it is inconsistent to whittle it down by refinements.”
Now Court of Claims Act, § 8.
. The minority misreads the legislative history by suggesting that House Report 1287 treats alike the statutes of New York, California, Illinois and Arizona. Not only does the report emphasize the similarity between the New York statute and the pending bill with respect to general waiver of immunity and the basis of liability (as well as the differences with respect to maximum recovery and exelu*267sions) but it also correctly characterizes the California and Arizona statutes as merely permitting suits to be brought against the state. Thus the Report in the very terms which it uses recognizes a difference between the New York statute, which is a general waiver of immunity from liability, and the California-Arizona statute, which merely permits suits to be brought on claims against the state which arise out of the state’s “proprietary” activities, instances in which liability without a judicial remedy antedated the statxxte. If, as we may assume from the Report’s reference to the absence of detrimental or undesirable effects from the legislation, the Report is based upon some examination of the experience under the statutes, the difference between the two types of statute is made doubly certain by an exaixxination, not of the Arizona and California cases cited by the dissent, because with one exception those cases were decided after the date of the Report, but of earlier cases to the same effect, i. e., that the California-Arizona statute does not, like the New Yox-k statute and the Federal Tort Claims Act, waive sovereign immunity against liability, but only, as the Report states, immunity against sxdt on legally recognized claims against the state, i. e., claims against it in its “proprietary” capacity. Since it is obvious that the operation of a prison system is a “public” and not a “proprietary” activity, presumably prisoners cannot recover under the California-Arizona type of statute although no ease is cited in which either state has so held. By rejecting this type in favor of the New York type of statute the federal legislation provided for the possibility of suits by prisoners. And under the same assumption that the committee examined New York practice, it is certainly reasonable to conclude that they were aware of the broad interpretation this closely analogous statute had received and particularly of the refusal of the New York courts to create an exemption for prisoners.
. “It may be that it is ‘novel and unprecedented’ to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government's traditional all-encompassing, immunity from tort actions and to establish novel and unprecedented governmental liability.” 352 U.S. at 319, 77 S. Ct. at 377.
In Healy v. United States, 192 F.Supp. 325, 329, n. 16 (S.D.N.Y.), aff’d on opinion below, 295 F.2d 958 (2d Cir. 1961), Judge Weinfeld concluded, on the basis of Rayonier and Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), that, the ground in, Feres exemplified by the quotation in the' *268text had been abandoned by the Supreme Court.
. The dissenting opinion misconceives the intention of our reference to the individual liability of prison officials which we say establishes that, unlike the situation in Feres, liability to prisoners is not “novel and unprecedented.”
It is obvious from Rayonier and Indian Towing Company that liability is to be assessed in accordance with the applicable general substantive tort .law. Recovery does not depend upon whether lighthouse keepers (Indian Towing Company) and fire fighters (Rayonier) can be sued individually under the law of the appropriate states, but, as the Court said of the lighthouse situation in Indian Towing Company, upon general principles of “hornbook tort law,” in that case upon the rule which provides that “one who undertakes to warn the public of danger and thereby induces reliance must perform his ‘good Samaritan’ task in a careful manner.” Prisoners who have received negligent medical treatment have the right under the Tort Claims Act to recovery in Illinois and elsewhere, not because prisoners in Illinois or elsewhere can or cannot sue their jailers, but because “it is hornbook tort law” that patients can recover for such negligent treatment.
. 48 Stat. 8-12 (1933), amended, 57 Stat. 554-560 (1943), repealed, 71 Stat. 167, 170 (1957); 48 Stat. 524-527 (1934), amended, 62 Stat. 1219-1220 (1948), repealed, 71 Stat. 168, 171 (1957). These statutes were superseded by the Veteran’s Benefits Act of 1957, 71 Stat. 83, 94 (1957), 38 U.S.C. § 301 et seq. (1958, as amended, Supp.1961).
. The statute was again amended in 1961. 75 Stat. 681 (1961); 18 U.S.C. § 4126 (Supp.1961), referred to infra.
. 5 U.S.C.A. § 751 et seq.
. Winston v. United States, 305 F.2d 257 (2d Cir. 1962). See Brooks v. United States, 337 U.S. 49, 53, 69 S.Ct. 918, 93 L.Ed. 1200 (1949).
. See Winston v. United States, 305 F.2d at 259 (dissenting opinion).
. Both the Government in its brief and the panel dissent (305 F.2d at 260) rely on Feres as support for the assertion that discipline will be impaired by potential liability, but the question -of discipline is not even mentioned in the opinion of the court in Feres. However, see Jefferson v. United States, 178 F.2d 518, 520 (4th Cir. 1949), aff’d sub nom., Feres v. United States, supra; United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954).
. Kecent cases have indicated that the federal courts will not be deterred by substantially more persuasive considerations of discipline than are here involved from interfering with prison operations when those operations are shown to violate rights protected under federal legislation. In Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961), the Fourth Circuit held that under the Civil Bights Act of 1871, 17 Stat. 13 (1871), 42 U.S.C.A. § 1983 (1958), federal prisoners were entitled to a trial on the merits of a complaint alleging that their rights as prisoners were being denied on account of their religion. And in Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961), this court applied the same rule to suits in federal courts by inmates of a state penitentiary.
. The Act provides for trial to the court sitting without a jury, 28 U.S.C. § 2402 (1958), and we may be confident that district judges in reaching conclusions on the question of negligence will be mindful of the exigencies that necessarily surround the operation of a penitentiary.
. 28 U.S.C. § 2680(a) (1958). See Morton v. United States, 97 U.S.App.D.C. 84, 228 F.2d 431 (1955), cert. denied, 350 U.S. 975, 76 S.Ct. 452, 100 L.Ed. 845 (1956).
. Feres v. United States, supra, 340 U.S. at 143, 71 S.Ct. at 157, 95 L.Ed. 152.
. In Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), the Court noted the absence of legislative history on the choice of law aspects of the Act. 369 U.S. at 8, 82 S.Ct. at 590.
. For a collection of cases, see Goodrich, Conflict of Laws 263-64 (1949); see also Restatement, Conflict of Laws §§ 377, 378 and 391 (1934).
. Although the Supreme Court has recently held this language to mean the “whole law” of that place, including its conflict of law rules, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), it is clear that situations may occur in which the governing substantive law will be that of a state in which the plaintiff has never been present.
The Court in Richards took note of a recent tendency on the part of some states to depart from the “place of injury” choice of law rule, and consider the application of the law of a state having a greater interest in the litigation. See 369 U.S. at 12, 82 S.Ct. at 592 and cases cited in note 26.
. “ * * * nor is he able to recover from the United States under the Federal Tort Claims Act for his injuries, since it has been held that Federal prisoners cannot maintain such an action,” S.Rep. No.1976, 84th Congress, 2d Sess. 2 (1956).