374 F.Supp. 1391 (D.Guam 1974), Civ. 52-72, Concepcion v. United States

Docket Nº:Civ. 52-72
Citation:374 F.Supp. 1391
Party Name:Concepcion v. United States
Case Date:January 29, 1974
Court:United States District Courts, 9th Circuit
 
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Page 1391

374 F.Supp. 1391 (D.Guam 1974)

Cecilia Santos CONCEPCION et al., Plaintiffs,

v.

UNITED STATES of America et al., Defendants.

Civ. No. 52-72.

District Court of Guam.

Jan. 29, 1974

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DUENAS, District Judge.

This cause came on regularly for trial on the 17th day of December 1973. Ensuing the presentation of testimony of witnesses for plaintiffs, plaintiffs stated to the court that their only remaining witness, the police officer who investigated the accident, could not be present to testify because he was then confined as a patient at the hospital.

The court, on motion of plaintiffs, to which motion the defendants did not object,

Page 1392

continued the trial to January 14, 1974. Once again the police officer was unable to be present to testify because of some unforeseen circumstances beyond the control of said police officer. Plaintiffs then stated to the court that if said officer were on the witness stand, he would have testified as to the cause of the accident, the parties involved in the accident, and the vehicles involved in said accident. Said officer, however, would not have presented any testimony on matters touching upon the scope of employment or authority of the operator of the vehicle involved belonging to, or under the control of, the United States of America.

The depositions of Michael L. Monroe, the operator of the United States vehicle, was then offered in evidence and admitted as such by the court.

Except for the testimony of the investigating officer, the plaintiffs would then have rested their case.

The defendants then made an oral motion for dismissal of the action upon the ground that upon the facts and the law, the plaintiffs have shown no right to relief, in that the operator of defendant's vehicle was not acting within the scope of his employment at the time he operated the vehicle involved in the accident.

Michael L. Monroe, though named a party defendant, was not subject to the jurisdiction of the court, not having been served with a copy of the complaint and summons. Should service be made on Monroe, the court would then have to dismiss the action against him pursuant to Section 2679(b), Title 28, U.S.C.

The court having duly considered the evidence and being fully apprised in the premises now finds the following:

FINDINGS OF FACT

I.

Two vehicles collided in the evening hours of 9:00 to 9:15 on April 7, 1971 in the vicinity of the Naval Communications Station area in front of the highway entrance of the Federal Aviation Administration headquarters.

II.

Plaintiff Antonio L. G. Sablan was the owner and operator of one of the vehicles: a 1970 Datsun Station Wagon. Plaintiffs Francisco C. Concepcion and Cecilia S. Concepcion, husband and wife, were passengers in Sablan's vehicle. Michael L. Monroe, a Second Class Boatsman Mate, United States Navy, was the operator of the other vehicle, a 1966 Rambler 550, Classic Station Wagon, allegedly owned or leased by the Special Services Division, United States Naval Station, Guam, an instrumentality of the United States of America, a named defendant. Employers Liability Assurance...

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