The opinion of the court was delivered by: RYAN
Defendant, United States of America, moves before answer under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, for an order and judgment dismissing the complaint on the grounds (1) that the court lacks jurisdiction of the subject-matter of the action, and (2) that the complaint fails to state a claim against the United States of America upon which any relief can be granted.
Plaintiff sues under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq.
Plaintiff, a professional entertainer and a citizen of the State of New York residing in this district, alleges that on October 16, 1945 she was lawfully touring in Saipan with a U.S.O. Camp Show, and that while being transported in an army jeep, operated and controlled by a member of the armed forces, the jeep through the negligence and carelessness of the operator ran off the road and struck a tree, as a result of which, and without any negligence on her part, she sustained serious bodily injuries. The complaint contains the following allegations:
'11. That on the 16th day of October, 1945, Saipan was not a foreign country.
'12. That prior to the 16th day of October 1945, Saipan was conquered by the United States Armed Forces and that on the 16th day of October 1945, and ever since, Saipan has been owned, occupied, managed, controlled and administered by the United States of America.'
Plaintiff seeks judgment in the sum of $ 75,000, as compensation for her injuries and necessary expenses.
Section 941(b) and (c) of the Federal Tort Claims Act provides:
'(b) 'Employee of the Government' includes officers or employees of any Federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.
'(c) 'Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty. * * * '
The alleged negligence of the operator (a member of the armed forces) of the jeep in which plaintiff claims she was riding at the time of the accident may be properly asserted as the basis of an action brought under this Act.
The question presented by this motion is whether plaintiff's claim arising as it does in Saipan, can be brought against the United States under the provisions of the Federal Tort Claims Act. More particularly, we are called upon to decide whether Saipan, at that time, was a foreign country within the meaning of § 943(k), 28 U.S.C.A.
'Claims exempted from operation of chapter
'The provisions of this chapter shall not ...