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SIMPSON v. UNITED STATES

January 22, 1980

Arthur L. SIMPSON
v.
UNITED STATES of America; David E. SANDSTEDT v. UNITED STATES of America and Stephen M. Gezovich.



The opinion of the court was delivered by: KNOX

OPINION, FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW

A. INTRODUCTION

 This is a Federal Tort Claims Act suit brought to recover damages resulting from the alleged wrongful death of Susan Marie Simpson, plaintiff's decedent in 78-62 Erie, and for damages to the vehicle of David Sandstedt, plaintiff in 78-103 Erie, resulting from an almost head-on collision which occurred July 12, 1977. The collision occurred on U.S. Route 62, a two-lane highway in French Creek Township, Venango County, in the Western District of Pa. at approximately 9:50 p.m. The accident occurred a short distance immediately north of the crest of "Black Hill" when a southbound vehicle driven by Gezovich, then a Marine Recruiting Sergeant in Oil City, collided almost head-on with the vehicle driven by Sandstedt, northbound in its own proper lane on Route 62. As the result of injuries sustained in the collision, plaintiff's decedent, Susan Marie Simpson died a short time later and the Sandstedt vehicle suffered damages as hereinafter set forth. Thereafter plaintiffs filed administrative claims with the department of the Navy which were rejected and these suits followed. After a complete non-jury trial, held at Erie on September 18-20, 1979, and after consideration of the briefs and arguments of the parties, the matter is now ripe for adjudication. The court therefore makes the following:

 B. FINDINGS OF FACT

 (1) Plaintiff's decedent, Susan Marie Simpson, born December 21, 1958, was a passenger in a 1974 Plymouth automobile owned by the U.S.A. and operated by Sgt. Stephen M. Gezovich on July 12, 1977, when said vehicle was involved in a collision with another motor vehicle operated by David E. Sandstedt.

 (2) On July 12, 1977, Sgt. Stephen M. Gezovich was a member of the U.S. Marine Corps, Department of Navy, and an employee of the U.S.A.

 (3) Prior to the accident, Gezovich was given possession of the said government vehicle by the defendant for use in connection with his duties as a recruiter for the U.S. Marine Corps, Department of Navy, Oil City, Pa.

 (4) The collision occurred on U.S. Route 62, French Creek Township, Venango County, Pennsylvania, at approximately 9:50 p.m.

 (5) Immediately prior to the accident, Stephen M. Gezovich was operating the said Plymouth in a southerly direction.

 (6) Immediately prior to the accident Gezovich had been in the process of turning left across the northbound lane on the roadway and perceiving he had made a mistake, attempted to turn back to the southbound lane, but was still in the northbound lane when the accident occurred.

 (7) At the time of the accident, David E. Sandstedt was operating a 1974 Chrysler automobile in a northerly direction in the northbound lane on said roadway.

 (8) The plaintiff's decedent, Susan Marie Simpson seated in the rear seat died as a result of the injuries which she sustained in the accident subject of this action.

 (9) Following the accident, Sgt. Gezovich stated to James B. Catanzsarito, the investigating Pennsylvania State Police Officer, on three occasions that: "The accident was my fault." and "I made a bad turn.".

 (10) At the time of the accident, in addition to Gezovich and Simpson, Mrs. Lori Silver, who was married to a member of the U.S. Marine Corps but separated, and Stephen H. Strickenbarger (Strickenbarger) were passengers in the government vehicle.

 (11) Before being assigned to recruiting duty, Sgt. Gezovich had received a course of instruction regarding recruiting at the U.S. Marine base at San Diego, California.

 (12) Sgt. Gezovich was instructed by his superiors that U.S. Marine Corps recruiting duty was a twenty-four-hour-a-day job.

 (13) Sgt. Gezovich was instructed that he should acquire and keep in good graces and make "contacts" with young people well acquainted in the community, as sources for prospective recruits.

 (14) Recruiting activities were frequently carried on in places serving intoxicating beverages and Sgt. Gezovich had not been instructed to refrain from recruiting duties in such places.

 (15) Sgt. Gezovich had frequented, prior to the accident, bars and taverns with his superior officers for recruiting purposes.

 (16) Other instructions and directives received by Sgt. Gezovich are contained in plaintiff Simpson Ex. A and Defendant Gezovich Ex. 1, 2, 3, 4 and 5.

 (17) Sgt. Gezovich was permitted by his superiors to and did drive the said government vehicle, which was painted "Marine Green" and bore the U.S. Marine Corps emblem, back and forth daily from the Marine recruiting office in Oil City to his home in the Village of Cooperstown, a distance of approximately fifteen miles.

 (18) On the day of the accident, Sgt. Gezovich considered both Strickenbarger and Silver good "contacts" because they had previously furnished him names of prospective recruits.

 (19) At the time of the accident, Sgt. Gezovich considered that Susan Marie Simpson had possibilities as a prospective recruit.

 (20) Sgt. Gezovich was assigned a monthly quota of recruits, male and female, that he was expected to enlist and on the day of the accident was behind in his quota since he had not enlisted anyone since the first of the month.

 (21) On the afternoon of the accident, Strickenbarger stopped at Sgt. Gezovich's office in Oil City with a list of four prospective recruits but Gezovich was busy with other matters and told Strickenbarger he would see him later.

 (22) Sgt. Gezovich closed his office at 9:00 p.m. and walked up the street to the Knight bar about a block away, where he met Strickenbarger, Silver and Simpson together with Mike Bowen a young man Gezovich had previously enlisted but who had not passed the "physical" because he was overweight.

 (23) Gezovich discussed generally the Marine Corps with all four of those individuals while at the Knight bar.

 (24) While at the bar, Gezovich inquired of Strickenbarger about the names of the four prospective recruits and Strickenbarger advised he had some further information regarding them at his home near Cranberry, Pa. and would get the information for him if Gezovich would drive him there.

 (25) Silver asked Gezovich if he would drive her and Simpson to Silver's residence near Franklin.

 (27) Gezovich testified he would not refuse to ride to Mrs. Silver because "she had helped me out a lot" in his recruiting duties and that he considered it beneficial to the Marine Corps to give all of his passengers a ride home.

 (28) Stephen Strickenbarger corroborated the testimony of Sgt. Gezovich in that he had supplied in the past "leads" for Gezovich; on the night of the accident he was going to give Gezovich information regarding four individuals who might be interested in joining the Marine Corps; that he himself was ...


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