United States v. Fotopulos

• Decision Date: 07 March 1950
• Docket Number: No. 12066.,12066.
• Citation: 180 F.2d 631
• Parties: UNITED STATES v. FOTOPULOS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

180 F.2d 631 (1950)

UNITED STATES v. FOTOPULOS et al.

No. 12066.

United States Court of Appeals Ninth Circuit.

March 7, 1950.

Frank J. Hennessy, U. S. Atty., Rudolph Scholz, Asst. U. S. Atty., San Francisco, Cal., for appellant.

Carroll S. Bucher, San Francisco, Cal., for appellee.

Before DENMAN, Chief Circuit Judge, ORR, Circuit Judge, and YANKWICH, District Judge.

YANKWICH, District Judge.

On December 23, 1946, Peter Fotopulos, — to be referred to as the deceased, — was 49 years old. He was the husband of Diamond Fotopulos, and the father of Thomas F. Fotopulos, aged 10 years, and Joan Fotopulos, aged 9 years, who appear here and in the court below through their guardian ad litem, Diamond Fotopulos.

On that day, the deceased was driving a light Dodge truck north on Van Ness Avenue, in the City and County of San Francisco, California. As he approached the intersection of Van Ness Avenue and Bush Street, he was in the inner, or westerly lane of traffic and next to and parallel to the street car tracks and safety lane. He was following another vehicle, which was not identified in the record. There are controlled signal lights at the intersection regulating the traffic. California Motor Vehicle Code, Sec. 476. At the time of the accident, the red light was against north and south on Van Ness Avenue, and all traffic had stopped. It was nine-thirty in the morning, and the streets were dry.

After the deceased stopped behind a truck, which preceded him, an army truck belonging to the Fort Mason Post Motor Pool, United States Army, which was then an agency of the United States of America, and which was being driven by Charles A. Bailey, then a sergeant in the United States Army, collided with the rear of the deceased's truck, forcing it against the vehicle in front of it. The collision damaged it both at the front and rear and buckled it in the center. The deceased did not complain of any physical injury at the time. Later, he developed pain, finally entering the hospital on January 8, 1947, where he underwent an operation from which he died on January 10, 1947.

Expert medical testimony at the trial traced the death to a blow in the abdomen received at the moment of the collision, the force of which, — in the language of the Court's findings, "being transmitted inwardly caused a thrombosis in one of the mesenteric blood vessels." This interruption in the circulation to a portion of the transverse colon resulted in a necrosis of a portion of the wall of the transverse colon, which brought on a perforation of the colon.

On January 29, 1947, the present action was instituted, seeking damages for the death of the deceased upon the ground of negligence in the operation of the Army vehicle.

The Government's Answer, filed on September 19, 1947, denied negligence on the part of the driver of the Army vehicle, and pleaded contributory negligence. Trial before the Court resulted, on May 25, 1948, in a judgment in favor of the plaintiffs in the sum of $50,000.00. The judgment was bottomed on findings, filed on the same day, which traced the death to the injury received by the deceased at the time of collision, and placed sole responsibility for the accident on the negligence of the Sergeant, Charles A. Bailey, acting in the course and scope of his employment as a member of the United States Armed Forces.

The Findings negatived the claim of contributory negligence asserted by the Government and found, specifically, that the deceased "was not careless or negligent in or about the accident aforesaid and did not operate the said Dodge truck in a careless or negligent manner and that no negligence or carelessness and no act or deed of the said Peter Fotopulos in any manner was the proximate cause of or proximately or in any manner contributed to the said accident."

The Government has appealed from the Judgment. It attacks the Judgment on the ground that the trial court erred in finding (1) negligence on the part of the employee of the United States Army, and absence of contributory negligence on the part of the deceased, in finding (2) that the death was caused by the collision, and (3) in awarding excessive damages.

I. The Legal Approach to the Problem

The action is instituted under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671-2680, the object of which is to waive the general immunity from liability for tort heretofore enjoyed by the Government. See Yankwich, Problems under the Federal Tort Claims Act, 1949, 9 F.R.D. 143. This Court has interpreted the act as "a blanket renunciation of Government immunity to suit", (in the instances named) Johnson v. United States, 9 Cir., 1948, 170 F.2d 767, 768, 769. Since that decision was rendered, the Supreme Court has set at rest the speculation which District and Circuit Courts have indulged in as to the scope of the statute, and has stated in United States v. Aetna Casualty & Surety Co., 70 S.Ct. 207, 210, that the language of the Act "indicates a congressional purpose that the United States be treated as if it were a private person in respect of torts committed by its employees".

In speaking about the contention of the Government, made in every one of the cases which has arisen under the Act, that statutes waiving immunity should be construed strictly, the Court, in the same case, speaking through the Chief Justice, thus characterized this statute: "We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo's statement in Anderson v. John L. Hayes Construction Co., 243 N.Y. 140, 147, 153 N.E. 28: `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.'" 70 S.Ct. 216.

So, in approaching any problem arising under the statute, we have before us this declaration of the Supreme Court which bids us consider the statute as a broad waiver of immunity and so apply it to the facts of each case.

As the Congress, in waiving this immunity, chose to deprive the litigants of the right of trial by jury, 28 U.S.C.A. § 2402, the findings of a trial judge in a case of this character, take on a greater significance than in an ordinary civil tort action. For, in an ordinary tort action, within the jurisdiction of the United States District Courts, the right of trial by jury is guaranteed by the Constitution. Constitution of the United States, Amendment 7. It can only be waived by action of the parties. Rule 38(a), Federal Rules of Civil Procedure, 28 U.S.C.A. The Federal Rules of Civil Procedure command us to sustain the findings of a trial judge, unless clearly erroneous. Rule 52, Federal Rules of Civil Procedure. The same norm governs cases arising under this statute. See, United States v. Chicago, R. I. & P. Ry. Co., 10 Cir., 1948, 171 F.2d 377, 379-380; Wasserman v. Perugini, 2 Cir., 1949, 173 F.2d 305; Hubsch v. United States, 5 Cir., 1949, 174 F.2d 7, 8; United States v. Uarte, 9 Cir., 1949, 175 F.2d 110. This requires us to give due weight not only to conclusions drawn by the trier of facts from contradictory testimony, but also to inferences made from testimony which does not stand contradicted directly, but the validity of which is impugned by other evidence in the record, or by legitimate inferences from admitted facts. See Grace Bros. v. Commissioner, 9 Cir., 1949, 173 F.2d 170; Pacific Portland Cement Company v. Food Machinery and Chemical Corporation, 9 Cir., 1949, 178 F.2d 541.

II. The Facts Supporting the Findings

We have already indicated, in the main, the facts found by the trial court, from which the inference was drawn that the Government vehicle collided with the vehicle driven by the deceased after the deceased had halted in the traffic which was stopped by a controlled signal. This was negligence. California Vehicle Code, Sec. 476(c) 1. See Clinkscales v. Carver, 22 Cal.2d 72, 76, 136 P.2d 777; Taylor v. Sims, 1945, 72 Cal.App.2d 60, 164 P.2d 17.

Harry A. Failor was in a business building at 1530 Van Ness Avenue, on the south side of Bush Street, directly opposite the place of collision. He was sitting at a desk when he heard a crash. He ran out to see what had happened. He noticed a pick-up truck in the pedestrian lane and an Army truck directly behind it. The Army truck, he testified, was "parked right behind it". And he continued: "and the Army people there, out of the truck, I believe there was a woman with them, and a couple of army youngsters, and the gentleman that was driving the pick-up truck was arguing with them about the accident. The fellow said, `Well, my brakes didn't hold', or `I couldn't help it'." In this respect, Failor was corroborated by Justin L. McNeil, the owner of the used-car establishment, who ran out to the scene of the accident with him. Both testified that the car was bent in the middle and the rear tailgate was smashed.

John Duba, an estimator for the Company which repaired the deceased's truck, considered it "as a total car (wreck) beyond repairs". He testified that there was damage to the center of the truck, both front fenders and the grill were smashed, and that there was damage to the tailgate and the rear cab. This clearly indicated that the vehicle had been struck violently by the vehicle behind, and thrown against the truck in front, which the driver of the Government vehicle claimed was not even there.

The Sergeant, who drove the car, and the corporal, Roy Lee Hammond, who occupied the front seat next to him, and whose depositions were offered in court by the Government, testified that the Army vehicle struck the other. We quote from Bailey's testimony:

"Q. Do you recall as you approached Bush Street as to whether or not there was a safety zone there? A. Yes, sir, there was.

"Q. As you approached Bush Street, did anything happen? A. Yes, plenty.

"Q. Will you state what happened, please? A. Well, I hit the...