Toledo v. United States, Civ. No. 5794.

• Decision Date: 13 March 1951
• Docket Number: Civ. No. 5794.
• Citation: 95 F. Supp. 838
• Parties: TOLEDO v. UNITED STATES.
• Court: U.S. District Court — District of Puerto Rico

95 F. Supp. 838

TOLEDO v. UNITED STATES.

Civ. No. 5794.

United States District Court D. Puerto Rico, San Juan Division.

March 13, 1951.

Cordova & Gonzalez, San Juan, P. R., for plaintiff.

United States Attorney, San Juan, P. R., for defendant.

ROBERTS, District Judge.

This is an action for damages brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671-2680. Plaintiff, on March 12, 1949, for the purpose of attending an athletic contest being conducted nearby, drove his automobile into the grounds of the United States Experimental Station at Mayaguez, Puerto Rico, and proceeding to an area therein used for the parking of automobiles, parked his automobile under and close to a large tree. The parties, at the opening of trial, stipulated that the land upon which the tree stood and the plaintiff's automobile was parked was under the control of the Experimental Station; that the Experimental Station is an agency of the United States Department of Agriculture; and, that the tree fell upon and crushed the automobile of plaintiff.

The Experimental Station is an establishment whereat research and experimentation with tropical plants is carried on for and on behalf of the United States Department of Agriculture. The tree, which fell upon the plaintiff's automobile, is a Venezuelan tree commonly known as an "ear tree". It is one of four or five such trees which have been planted at the Experimental Station over a period of years in the course of such experimentation. After the tree had fallen it was examined by the Director of the Experimental Station and by a plant physiologist there employed, and was found to be diseased, the condition being described as "heart-rot". Internally the trunk was seriously infected and a substantial portion thereof had rotted away, but the bark and a layer of wood beneath the bark was alive and some of the smaller topmost branches had started to leaf out. As of the time it fell, the tree was alive and exhibited no external signs of its diseased condition although, as a result of such condition, it had been weakened structurally.

At the conclusion of trial, defendant moved orally that the complaint be dismissed, asserting as grounds therefor that, among other things, plaintiff's claim is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty within the meaning of subsection (a) of Section 2680 of the Act, and that, this court is, therefore, without jurisdiction in the premises. Section 2680 of the Act provides that the provisions thereof shall not apply to — "(a) Any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

Section 2680 is definitive of the jurisdiction of the court to entertain suits under the Tort Claims Act. See Sickman v. United States, 7 Cir., 184 F.2d 616, 619. A claim based upon or rising out of any of the exceptions set forth therein is not within the waiver of immunity to suit contemplated by Congress when it enacted the Tort Claims Act, and with respect to suits predicated upon such claims, the courts are without jurisdiction. Plaintiff contends that, with respect to determining whether a claim is based upon a discretionary function or duty within the meaning of subsection (a), the rule of liberal construction prevails. And it is true that the Supreme Court, in its most recent pronouncement with respect to the construction to be given the Act has said that the scope of the Act is not to be restricted by refinement of construction. United States v. Yellow Cab Co., 340 U.S. ___, 71 S.Ct. 399. See also United States v. Shaw, 309 U.S. 495, 501, 60 S.Ct. 659, 84 L.Ed. 888. But this does not mean that the exceptions contained in Section 2680, which are restrictive of the scope of the Act, are to be nullified through liberality of construction for, in enacting these exceptions, Congress was specifying clearly instances in which it did not intend to waive the immunity of the Government to suit.

In Coates v. United States, 8 Cir., 181 F.2d 816, the Court of Appeals for the Eighth Circuit rejected a contention that the words "discretionary function or duty" were used by Congress in enacting subsection (a) of Section 2680 either loosely or as a term of generality. That court said: 181 F.2d at page 818. "That the Congress very deliberately used the words `discretionary function or duty' in the Exceptions to the Act with the intent that they should convey the same meaning traditionally accorded by the courts and to continue to exclude judicial authority from interference with lawful legislative and executive action is shown in the legislative history of the Act."

The court then quotes from the printed Hearings on the changes made in H.R. 5373 by H.R. 6463, 77th Congress, 2d Session, January 29, 1942, page 44, as follows: "It is neither desirable nor intended that the constitutionality of legislation, the legality of regulations, or the propriety of a discretionary administrative act, be tested through the medium of a damage suit for tort." (Emphasis supplied)

In the instant case then, the controlling question is whether the claim of plaintiff is based upon an exercise of, or a failure to exercise, a discretionary function within the meaning of sub-section (a...