Builders Corporation of America, a Corporation, and Herlong Sierra Homes, Inc., a Corporation v. United States

This is an action whereby Builders Corporation of America 1 and Herlong Sierra Homes, Inc., 2 which built a series of dwelling houses adjacent to Sierra-Ordnance Depot, 3 a military installation, in an isolated location far from points of urban development, for the military and civilian personnel of the Depot, claimed to have been damaged by the acts and negligence of certain agents of the United States, who, contrary to orders, prevented the personnel from occupying these dwellings. 4 Judgment against Builders and Homes was entered by the trial court after a motion to dismiss had been sustained. 5 This appeal followed.

The sole question is whether the motion to dismiss should have been sustained or the facts should have been further developed before judgment entered.

The complaint sets out allegations which are here summarized.

The government, through the Department of Defense, operates the Sierra-Ordnance Depot in a desolate and isolated region of California. The officers in charge thereof are agents of the United States. The Federal Housing Administration is authorized under federal law to insure mortgages on housing built for rent for residential use for civilian *768 and…

(concurring).

While I have some reservations about the suggestion in the court’s opinion that statutory exceptions should be “treated as affirmative defenses”, yet I am heartily in accord with Judge FEE’S statement: “The spirit of the Rules is that technical requirements are abolished and that judgments be founded on facts and not on formalistic defects.” I think a case of this importance, in a field where the law remains unsettled, ought not to be disposed of upon a mere motion to dismiss without opportunity to develop what the precise facts are.

That is the point of Kennedy v. Silas Mason Co., 334 U.S. 249 , 68 S.Ct. 1031 , 92 L.Ed. 1347 . This court followed that case in Pacific American Fisheries v. Mullaney, 9 Cir., 191 F.2d 137, 141 . In the Silas Mason case, noting it was an important one, the Supreme Court refused to dispose of it upon a motion for summary judgment notwithstanding the motion may have been technically correct. Said the Court: ( 334 U.S. at page 256 , 68 S.Ct. at page 1034 ) “No conclusion in such a case should prudently be rested on an indefinite factual foundation.” Also, ( 334 U.S. at page 257 , 68 S.Ct. at page 1034 ): “We consider it the part of good…

259 F.2d 766 BUILDERS CORPORATION OF AMERICA, a Corporation, and Herlong Sierra Homes, Inc., a Corporation, Appellants, v. UNITED STATES of America, Appellee. No. 15533. United States Court of Appeals Ninth Circuit. May 6, 1958. Landis, Brody & Martin, Alvin Landis, Sacramento, Cal., for appellants. George Cochran Doub, Asst. Atty. Gen., Morton Hollander, Paul A. Sweeney, William W. Ross, Attys., Dept. of Justice, Washington, D.C., Lloyd H. Burke, U.S. Atty., San Francisco, Cal., for appellee. Before DENMAN, POPE and FEE, Circuit Judges. JAMES ALGER FEE, Circuit Judge. 1 This is an action whereby Builders Corporation of America 1 and Herlong Sierra Homes, Inc., 2 which built a series of dwelling houses adjacent to Sierra-Ordnance Depot, 3 a military installation, in an isolated location far from points of urban development, for the military and civilian personnel of the Depot, claimed to have been damaged by the acts and negligence of certain agents of the United States, who, contrary to orders, prevented the personnel from occupying these dwellings. 4 Judgment against Builders and Homes was entered by the trial court after a motion to dismiss had been sustained. 5 This appeal…