Cerri v. United States, 27451.

• Decision Date: 17 September 1948
• Docket Number: No. 27451.,27451.
• Citation: 80 F. Supp. 831
• Parties: CERRI et al. v. UNITED STATES.
• Court: U.S. District Court — Northern District of California

80 F. Supp. 831

CERRI et al. v. UNITED STATES.

No. 27451.

United States District Court N. D. California, S. D.

September 17, 1948.

Elden C. Friel, of San Francisco, Cal., and Carlson, Collins & Gordon, of Richmond, Cal., for plaintiffs.

Frank J. Hennessy, U. S. Atty., and Daniel C. Deasy, Jr., Asst. U. S. Atty., both of San Francisco, Cal., for defendant.

ROCHE, Chief Judge.

Plaintiffs, husband and wife, bring this action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 921-946,¹ to recover for injuries suffered by the wife, an innocent bystander, when she was wounded as the result of a shot fired by a soldier on guard duty, while he was attempting to halt a civilian under arrest.

The record discloses the following facts:

Pfc. Robert E. Alexander of the United States Army was on guard duty as a member of the Military Police Detachment, stationed at the entrance to Pier 45, at the foot of Taylor Street in San Francisco, on August 5, 1945. He was equipped with a regulation .45 caliber Army Automatic Pistol.

Adjacent to Pier 45 was an automobile parking area marked "Reserved for U. S. Army," for the use of defendant's agents, servants and employees having business or duties on Pier 45.

On the date above, about 12:15 A.M., a civilian attempted to park his automobile in such reserved parking area. Private Alexander ordered the civilian to remove his automobile. After a discussion, the civilian removed himself and his automobile to another place, after which he returned to Private Alexander's post and engaged in an altercation with him. As a result of this, the civilian was placed under arrest by Alexander. The civilian escaped from the custody of Private Alexander and fled in his automobile. Alexander fired his pistol at him as he was so fleeing and it was the bullet from this shot which struck the head of the plaintiff wife, present among a group of innocent bystanders, causing her serious injuries.

At the most, the civilian trespasser was guilty of a misdemeanor. Since local law determines the question of negligence, State of Maryland, to Use of Burkhardt, v. United States, 4 Cir., 165 F. 2d 869, and since the California courts have consistently held that shooting is not justified to arrest, or to prevent the escape of a person who has committed a misdemeanor, Alexander's conduct was negligence per se. People v. Wilson, 36 Cal. App. 589, 172 P. 1116; People v. Lathrop, 49 Cal.App. 63, 192 P. 722.

The defendant denies liability on the ground that a municipality, under California law, cannot be held liable for the tortious acts of police officers acting in the line of duty. Wood v. Cox, 10 Cal.App.2d 652, 52 P.2d 565; Baisley v. Henry, 55 Cal. App. 760, 204 P. 399. Further, defendant claims that it is recognized under California law that the sovereign police power cannot be delegated to a private individual and therefore, no private individual is liable for the tortious acts of a special policeman employed by him, when such acts are committed by such employee while acting in the line of his duty as a police officer. St. John v. Reid, 17 Cal.App.2d 5, 61 P.2d 363; Maggi v. Pompa, 105 Cal.App. 496, 287 P. 982.

This is, apparently, a case of first impression, research of both court and counsel having produced no decision directly in point. Determination of the instant case, therefore, must rest on construction of the statute, keeping in mind the purpose of Congress in enacting it. The purpose of this act is the relinquishment by the Federal Government of its sovereign immunity against suits of this nature. Without such a statute, an individual who has suffered injuries as the result of negligence on the part of agents, servants or employees of the United States can receive compensation only through private bills passed by Congress. The need to avoid such a lengthy and cumbersome method has resulted in the passage of this statute. To reason that the United States cannot be here held liable because a municipality in California is protected by the sovereignty of the state, is to ignore the plain meaning of the Federal Tort Claims Act and to deny the object sought by Congress. The purpose of the surrender of sovereign immunity in these particular cases cannot be ignored.

The defense that this act does not apply to those cases wherein the negligence occurred during the exercise of a sovereign power of the United States, if heeded, would create a twilight zone of governmental activities in which the consent given by this statute could not be applied. Too numerous are the affairs of a purely governmental or sovereign nature, prohibited to or not duplicated by the activities of private individuals, to consider this to be the intent of Congress. Certainly, the statute itself makes no distinction between governmental activities of a sovereign nature and those of a proprietary nature, nor does it include within the claims exempted, 28 U.S.C.A. § 943,² those of this type.

There can be no allegation that the Federal Tort Claims Act constitutes a delegation of sovereign power to any private individual. Read fully, the act is the simple giving of the consent of the United States to tort actions against itself.

The phrase "* * * where the United States, if a private person, would be liable * * *," 28 U.S.C.A. § 921 and § 931,³ is not to be understood to mean that the United States can be sued only if a private person can be sued under the identical circumstances. This phrase does not determine the relationship of the government to its employees, but rather determines the relationship of the government to third parties. The act gives the consent of the United States to be treated by the injured party as if it were a private individual, amenable to court action without claim of immunity, in all those cases, not exempted by the act, where the negligence of its agents, servants or employees has caused injury or damage to third parties.

The statute itself⁴ creates the existence of employer to employee in the instance of a soldier in the United States Army. Effective regulations of the United States Army provide for the arrest of civilians by members of the guard or military police, 3 Fed. Reg., 1 Army-War Dept., 586, within the limits of military jurisdiction. The area wherein this shooting took place was included within that portion of the Pacific Coast which had been designated as a military area. Executive Order No. 9066 of February 19, 1942, 7 Fed. Reg. 1407; Public Proclamation No. 1 of March 2, 1942, 7 Fed.Reg. 2320; Public Proclamation No. 2 of March 16, 1942, 7 Fed.Reg. 2405. Under such orders, the soldier had the right to exclude trespassers and to use all force necessary to do so. The soldier was acting under general orders and regulations to protect all government property in view and to arrest all persons causing disorders on or near his post of duty, and to turn such persons over to the guard. The fact that in so doing he used greater force than necessary and so became guilty of negligence would not place his acts outside the scope of his employment.

Pfc. Alexander's negligence while acting within the scope of his employment was the proximate cause of plaintiff Edith M. Cerri's injuries and she is entitled to recover as against defendant.

A husband is entitled to recover for the damages sustained by him where he has been deprived of the services of his wife as a result of physical injuries suffered by her through the negligence of the defendant. Martin v. Southern Pac. Co. 130 Cal. 285, 62 P. 515; Meek v. Pacific Elec. Ry. Co., 175 Cal. 53, 164 P. 1117. Judgment must also be given in favor of the plaintiff husband as against defendant.

The Court concludes that plaintiffs are entitled to recover from defendant the following sums: for plaintiff Edith M. Cerri, the sum of twenty thousand dollars ($20,000) general damages; for plaintiff Deano Cerri, the sum of five hundred dollars ($500) general damages; and for the plaintiffs, the sum of two thousand dollars ($2,000) special damages; the total of which sums amounts to twenty-two thousand, five hundred dollars ($22,500).

It is further ordered that the plaintiffs have their costs to be hereinafter taxed.

In view of the foregoing facts as the Court finds them to be and the law deemed applicable in the Court's opinion, the issues here should be found in favor of the plaintiffs and accordingly, counsel for the plaintiffs may submit Findings of Fact and Conclusions of Law; and exceptions are hereby allowed counsel for the Government.

Findings of Fact

I. This action is brought pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C.A. Sections 921-946.⁵

II. At all times mentioned in plaintiffs' complaint, as amended, plaintiffs Deano Cerri and Edith M. Cerri were and are husband and wife, citizens of the United States and residents of the City of Martinez, County of Contra Costa, State of California; the acts of which plaintiffs complained in their complaint occurred on August 5, 1945, in the City and County of San Francisco, State of California; and the amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

III. On and prior to August 5, 1945, at approximately 12:15 o'clock, A.M., Pier 45, situated on the waterfront in the area commonly known as Fisherman's Wharf, in the City and County of San Francisco, together with a portion of the public street in front of said Pier 45, were in the possession and control of defendant and were being used by defendant as a part of the Port of Embarkation of San Francisco for the loading and shipment of personnel and war equipment to the South Pacific Area, and were enclosed with a steel fence. Immediately adjacent thereto were a number of public restaurants, called "Grottos." A part of the area of the public street bounded on the north side by said restaurants and on the east side by said steel fence, was designated as an automobile parking area for patrons of said restaurants....