United States District Court, Eastern District of Pennsylvania
July 21, 1952
WHALEN ET AL.
The opinion of the court was delivered by: Ganey, District Judge.
This case concerns itself with an action brought pursuant to
the Federal Tort Claims Act.*fn1
According to the allegations in the complaint, the minor
plaintiff, while he was in the United States Naval Residential
Section of the Panama Canal Zone, was injured on or about January
24, 1947, by a truck negligently operated by a Naval personnel
acting within the course and scope of his employment. The action
was brought on January 3, 1952, a little less than five years
after the minor plaintiff sustained his injuries. At the time the
action was brought, the minor was eight years of age.
The government has filed a motion to dismiss on the grounds
that the action is barred by the two-year statute of limitation
set forth in 28 U.S.C.A. § 2401(b), as amended by Act of April
25, 1949, c. 92, Sec. 1, 63 Stat. 62. The pertinent part of this
section provides: "(b) A tort claim against the United States
shall be forever barred unless action is begun within two years
after such claim accrues or within one year after the date of
enactment of this amendatory sentence, whichever is later * * *."
This subsection, prior to the amendatory act of April 25, 1949,
simplified and restated section 420 of the Federal Tort Claims
Act, 60 Stat. 845, 28 U.S.C. (1946 Ed.) § 942, without change of
To defeat the government's motion, the minor plaintiff's
guardian relies on 28 U.S.C.A. § 2401(a), which states: "(a)
Every civil action commenced against the United States shall be
barred unless the complaint is filed within six years after the
right of action first accrues. The action of any person under
legal disability or beyond the seas at the time the claim accrues
may be commenced within three years after the disability ceases".
The above subsection formerly appeared as part of § 24(20) of
the old Judicial Code, as amended, 28 U.S.C. (1940 Ed.) §
41(20).*fn3 It was part of our law long before the Federal Tort
Claims Act came into existence. It was therefore independent of
the latter Act. Merely because the subsections now appear under
the same heading in the United States Code of 1948, as amended,
it does not mean that the first subsection is to control the
following one. Subsection (a) has no legal effect on actions
controlled by subsection (b) of Sec. 2401. Consequently the
latest date the action here involved could have
been properly brought was April 25, 1950. See Ballance v. United
States, D.C.Kan. 1950, 93 F. Supp. 681; 1949 U.S.Code Cong.
Service, pp. 1227 & 1248.
Accordingly, the government's motion to dismiss will be