to distinguish the Pickering case from this suit because in that case a crossing against a red light was involved and that there was conflicting testimony on the part of the authorized driver as to whether or not he was observing the manner his substitute was operating the vehicle does not exculpate it from coverage by the principles established in that case. There is present in this case a violation of the motor vehicle laws with regard to speed fully the equivalent of the red light violation incidental to the Pickering case. The proofs in this case are also ample to warrant the conclusion that Kiah had full opportunity to supervise the operation of the vehicle by Wilson and that he failed to exercise it completely.
In reference to the damages, the defendant sought to dismiss all counts of the complaint on the ground that prior to filing this suit, the plaintiffs sought administrative relief as provided by the present 28 U.S.C.A. § 1672, and subsequently filed this suit for sums in excess of the amounts so claimed which it urged were barred by 28 U.S.C.A. § 2675(b).
It is provided in 28 U.S.C.A. § 2675(b) that:
'The claimant, however, may upon fifteen days written notice, withdraw such claim from consideration of the federal agency and commence action thereon. Action under this subsection shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.'
The original claims filed by the plaintiffs for administrative adjustment were in the following amounts: Nellie Siciliano, property damage . . . $ 60.00
personal injury . . . $ 10.00 Total . . . $ 70.00
Anthony Siciliano, property damage . . . $ 485.96 Josephine Siciliano, by her guardian . . . $ 1,426.60
The injuries and loss suffered by Mrs. Siciliano are not serious and in any event she is limited to the original amount claimed. Therefore the defendant is found to be liable to her in the sum of $ 70.00. The original claim made for Anthony Siciliano was limited to his damages suffered for loss of the vehicle. It did not include medical and hospital expenses for Josephine Siciliano for whose expenses he is liable and therefore this action is not limited by the terms of 28 U.S.C.A. § 2675(b). The damages to his automobile, according to the testimony in this case, were in the amount of $ 575, but he can recover no amount greater than his original claim of $ 485.96. There was a hospital bill for Josephine in the amount of $ 576.60 and a medical bill for physician's and surgeon's fees to the amount of $ 750. These sums are recoverable in this suit and he is entitled to a judgment in the aggregate of the last three items, or $ 1,812.56.
Obviously, since the claim filed on behalf of Josephine Siciliano was in excess of $ 1,000, it was not susceptible of administrative adjustment, 28 U.S.C.A. § 2672, and can be treated as a nullity. She was a school girl at the time and is entitled to damages only in the area of pain and suffering. Of this, she undoubtedly underwent considerable. For a period of time, as she lay in the hospital, her life was despaired of. Medical testimony demonstrated that she received a concussion of the brain, fractured pelvis, fracture of four teeth, a severe chest injury which required draining of fluid and blood on several occasions from her lungs, abdominal injuries, injuries to her ankles, lacerations and abrasions about the body and several fractured ribs. After 45 days in the hospital, she spent several months convalescing at home requiring additional medical treatment. She still has some pain in the pelvic area, and headaches which average about three or four hours duration. Her left foot gives some pain when she walks or sits in certain positions. Scars resulting from her injuries are not visible in such places as to disfigure her to the point of embarrassment. They are prominent about her ankles. She is now 18 years old and employed in light factory work but the testimony shows that for some period in the future she will continue to be discomforted from headaches and pains in her limbs and hip. Under the circumstances, for all of her injuries, pain, suffering and disfigurement, she is entitled to recover $ 5,000.
Counsel is entitled to receive the sum of $ 1,200 as his fee which is to be deducted from the aggregate of damages allowed herein proportioned as follows:
On the judgment of $ 70 allowed Nellie Siciliano . . . $ 10.00
On judgment of $ 1,812.56 allowed Anthony Siciliano . . . $ 360.00
On judgment of $ 5,000 allowed Josephine Siciliano . . . $ 830.00
This opinion shall serve as the findings of fact and conclusions of law contemplated by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
An order should be submitted in conformity with the conclusions found herein.
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