Concepcion v. United States

Citation374 F. Supp. 1391
Decision Date29 January 1974
Docket NumberCiv. No. 52-72.
PartiesCecilia Santos CONCEPCION et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.
CourtUnited States District Courts. U.S. District Court — Panama Canal Zone

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, 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 Corporation, Ltd., the insurer of the Special Services Division, is the other defendant. J. C. Hudson, also a member of the United States Navy, was a passenger in the vehicle operated by Monroe. All the plaintiffs sustained personal injuries as a result of the accident.

III.

The Special Services Division takes care of all the recreational facilities provided by the Naval Station, Guam. On April 7, 1971, it also operated a base taxi and a rent-a-car service. The division's complement at the time consisted of 15 men headed by the Special Services Officer.

IV.

On April 7, 1971, Monroe, who has been in the Naval Service for a period of 10 years, was the leading Petty Officer of the Special Services Division. He was the Range Manager of the Roti Skeet Range. The department under Special Services to which Monroe was attached was involved in recreational activities only. Other departments under Special Services operated a base taxi service and rent-a-car services. Monroe's immediate superior at the time was a Chief Petty Officer.

V.

Monroe's specific duty on April 7, 1971 involved the operation and maintenance of the Navy Skeet shooting facility. Additional duties consisted of purchasing and picking up of certain items for fishing boats, the football field and the baseball diamonds. This part of Monroe's job usually necessitated the taking of trips twice a week to Agana about 12 to 15 miles away from his place of employment. At times Monroe might be required to do some related work for other bases in Guam. Normally Monroe's time would be apportioned on a 50-50 basis between office work at the Special Services Division office and the skeet range.

VI.

Monroe's regular working hours were from 8:00 a. m. to 4:30 p. m. or 5:00 p. m. Outside of the regular working hours, he was subject to be called upon for additional duty should the need arise. Rarely would he be called upon for duty after the regular working hours. During off-duty, even though subject to call, Monroe was free to do as he pleased.

VII.

The operation of the Special Services Division provides the use of a so-called "duty driver". The duty driver is charged with the responsibility of locking up the gymnasiums and would stay after working hours and keep the office open until the other facilities of Special Services have turned their money in. The duty driver would regularly be at the Special Services office awaiting any specifically assigned duties or orders coming from the Special Services Officer. The duty driver was not under the control or command of Monroe.

On occasions when the duty driver was not available, such as being on any assigned errand, Monroe would serve as a backup man or would let his assigned vehicle serve as the backup vehicle for the duty driver.

VIII.

As Petty Officer in Charge of the Special Services Division, Monroe had to have a car to do his job. In this connection, he had been using the Rambler for a period of three or four months prior to the collision. There was no written assignment of the Rambler to Monroe, though he was authorized to use said vehicle by his Division Officer and the Chief Petty Officer in Charge.

IX.

The Division Officer told Monroe that he would keep the vehicle at the barracks for his use as a Leading Petty Officer of the Special Services Division. Though there was never any discussion between Monroe and his superiors about using or not using the vehicle for personal reasons, Monroe, nevertheless had the impression that he was to use the vehicle for business purposes only, and that was what it was being used for.

X.

On April 7, 1971, Monroe terminated his regular working day around 5:45 p. m. From his place of work, he went to his barracks, changed his clothes and then went to the club and had a beer. He then went back to the barracks, did his laundry, and about an hour or two thereafter, he took the trip to the NCS area which resulted in the collision.

XI.

On the evening of April 7, 1971, Monroe was contacted by a serviceman, known by Monroe as one having the initial J. C., for the purpose of taking said serviceman to the Naval Communications Station, Guam. It was related to Monroe by the serviceman that something was wrong with his parents in the States and that he had to go to NCS. Since the duty driver was not available, Monroe decided that he himself would take the man to NCS to find out just what was going on. Even if the duty driver were available, Monroe could not order him to take the serviceman to NCS. At the most, Monroe could have requested the duty driver to give the serviceman a ride to NCS, should it happen that the driver have an assignment to NCS.

XII.

Monroe, in taking the serviceman to NCS, did so pursuant to the serviceman's request. He was not ordered by anyone to do so, and simply relied on his own judgment. His primary purpose in making the trip was to accommodate the serviceman, and for no other purpose. It was done as a personal favor and for the convenience of the serviceman, a shipmate, and not in furtherance of any business of the United States. Monroe was not compensated...

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3 cases
  • Taber v. Maine
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 5, 1995
    ...one, where the relevant Guam statute is identical to, and indeed derives from, the California Civil Code. See Concepcion v. United States, 374 F.Supp. 1391, 1395 (D.Guam 1974) (noting that the respondeat superior section of the Civil Code of Guam was "taken verbatim" from the California Civ......
  • Taber v. Maine
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 5, 1995
    ...one, where the relevant Guam statute is identical to, and indeed derives from, the California Civil Code. See Concepcion v. United States, 374 F.Supp. 1391, 1395 (D.Guam 1974) (noting that the respondeat superior section of the Civil Code of Guam was "taken verbatim" from the California Civ......
  • Sharrock v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 15, 2012
    ...United States, 258 F.2d 465, 470–71 (9th Cir.1958) (service member driving between permanent duty stations); Concepcion v. United States, 374 F.Supp. 1391, 1394–95 (D.Guam 1974) (service member driving on base after being released from duty for the day); Blackman v. Great Am. First Sav. Ban......

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