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WHALEN v. UNITED STATES

United States District Court, Eastern District of Pennsylvania


July 21, 1952

WHALEN ET AL.
v.
UNITED STATES.

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 substance.*fn2

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 allowed.


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