Foote v. Public Housing Com'r of United States, 1885.

• Decision Date: 26 September 1952
• Docket Number: No. 1885.,1885.
• Citation: 107 F. Supp. 270
• Parties: FOOTE et al. v. PUBLIC HOUSING COM'R OF UNITED STATES.
• Court: U.S. District Court — Western District of Michigan

107 F. Supp. 270

FOOTE et al. v. PUBLIC HOUSING COM'R OF UNITED STATES.

No. 1885.

United States District Court W. D. Michigan, S. D.

September 26, 1952.

Francis L. Williams and John E. Damon, Grand Rapids, Mich., Robert L. Miles and Nuel N. Donley, Big Rapids, Mich., for plaintiffs.

Joseph F. Deeb, U. S. Atty., Grand Rapids, Mich., for defendant.

STARR, District Judge.

On and prior to February 14, 1949, plaintiffs Ralph Foote and Marie Annette Foote, his wife, and their two minor children, Mariann Louise and Martha Annette, occupied a dwelling unit in the public housing project for veterans at Cadillac, Michigan, which project was developed by the Federal public housing authority and the city of Cadillac. On that date, February 14th, a coal stove in this housing unit exploded, causing a fire in which the plaintiffs' two children received serious burns resulting in their death on February 15th.

On July 21, 1950, the probate court for Wexford county, Michigan, appointed plaintiff Ralph Foote administrator of the estates of his two deceased children, and about a year later, on July 27, 1951, an order was entered in the probate court authorizing him to commence the present suit. On October 17, 1951, which was more than two years after the death of the children, Ralph Foote as administrator of their estates and Ralph Foote and his wife, Marie Annette Foote, individually, filed complaint alleging that the death of their children resulted from the negligence of the defendant and his agents in failing to construct said housing unit in a reasonably safe manner and in equipping the housing unit with a coal stove of defective design and construction. In the complaint plaintiff Ralph Foote as administrator claimed monetary damages as compensation for the pain and suffering endured by his children prior to their death, and plaintiffs Ralph Foote and Marie Annette Foote, individually, claimed damages by reason of the loss of future earnings of the children and for expenses incurred in connection with their hospitalization, medical care, funeral, and burial.

This action was instituted by the plaintiffs in pursuance of 28 U.S.C.A. § 1346 (b), which gives Federal district courts exclusive jurisdiction of civil actions on claims against the United States for money damages for personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. On December 14, 1951, the defendant, appearing specially, filed motion to dismiss the complaint on the ground that the action is barred by 28 U.S.C.A. § 2401(b), as amended April 25, 1949, which provides in part:

"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".

The first question is whether this defense of the statute of limitations may be raised by a motion to dismiss before the defendant answers, or whether it must be raised as an affirmative defense in its answer. Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides in part:

"In pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of limitations * * * and any other matter constituting an avoidance or affirmative defense."

Rule 12(b) provides in part:

"Every defense, in law or fact, to a claim for relief in any pleading * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted".

The present suit is a civil action on a tort claim against the United States, and the law has long been established that such suits may be maintained only in the manner and subject to the restrictions prescribed in the Act of Congress permitting the suit. Munro v. United States, 303 U.S. 36, 41, 58 S.Ct. 421, 82 L.Ed. 633; Reid v. United States, 211 U.S. 529, 538, 29 S.Ct. 171, 53 L.Ed. 313; Keil v. United States, D. C., 65 F.Supp. 431, 432. The provision of 28 U.S.C.A. § 2401(b) that a tort claim against the United States shall be forever barred unless action is begun within two years after the claim accrues, is not merely a procedural requirement but limits the substantive rights created by the Federal Tort Claims Act. In granting a motion to dismiss a tort-claim action against the United States on the ground that it was not begun within the period of limitation, the court held in Sikes v. United States, D.C., 8 F.R.D. 34, that the statutory requirement that the suit be commenced within the prescribed period was a limitation upon the substantive rights created, and a condition precedent to the existence of the cause of action. See also Berry v. Heller, D.C., 79 F.Supp. 476. Furthermore, the law is established in this judicial circuit that when the allegations of the complaint show that a suit has not been brought within the statutory period, the defense of the statute of limitations may be raised under Rule 12(b) (6) by motion to dismiss, on the ground that the complaint fails to state a claim upon which relief can be granted. See Berry v. Chrysler Corporation, 6 Cir., 150 F.2d 1002; A. G. Reeves Steel Const. Co. v. Weiss, 6 Cir., 119 F.2d 472. Therefore, the court concludes that in the present case the defendant may raise the defense of the statute of limitations by motion to dismiss.

In their brief plaintiffs concede, and the court concludes, that the present action by Ralph Foote and Marie Annette Foote, individually, is barred by the two-year statute of limitations relating to tort claims against the United States. That leaves only the question as to whether the action by Ralph Foote as administrator of the estates of his children is timely brought. The plaintiff administrator contends that the period of limitation within which the present action could be begun should be determined by the law of Michigan rather than by the Federal law, and that under the law of that State an administrator may bring a tort action at any time within two years after letters of administration are granted, Comp.Laws Mich.1948, § 609.18, and that under the so-called Michigan Wrongful Death Act, Comp.Laws Mich.1948, §§ 691.581, 691.582, which creates a new cause of action in the personal representative of a decedent, Cugell v. Sani-Wash Laundry Co., 280 Mich. 286, 273 N.W. 571, the claim or cause of action does not accrue until the administrator is appointed.

Under 28 U.S.C.A. § 1346(b), which gives the Federal district courts jurisdiction of civil actions on tort claims against the United States, the standards and tests of local State law are applicable in determining whether an actionable negligent or wrongful act has been committed, and the nature and extent of the recovery permitted. However, by this enactment Congress was creating a liability on the government not theretofore existing, and by the enactment of § 2401(b) it placed a limitation on the substantive rights created, by providing a time limit upon the right to begin an action on a tort claim. The precise question presented in the instant case was considered by the court in the recent decision in United States v. Westfall, 9 Cir., 197 F.2d 765, 766. In that case the court held that in an action against the United States under the Federal Tort Claims Act the time within which the suit could be commenced should be determined by the limitation provisions of that act and not by the State statute of limitations. The court said: "The Tort Claims Act * * * prescribes its own limitation." In Wolf Sales Co. v. Rudolph Wurlitzer Co., D.C., 105 F.Supp. 506, at page 509 (decided June 25, 1952), the court said: "Local periods of limitation control actions under federal law only if and where Congress has failed to provide its own statutory limitation."

The question was also considered by the court in State of Maryland, to Use of Burkhardt, v. United States, 4 Cir., 165 F.2d 869, 1 A.L.R.2d 213. That was an action for wrongful death instituted under the Federal Tort Claims Act, which at that time provided a limitation of one year, and in holding that the Federal statute and not the State law determined the limitation of time for beginning the action, the court said, 165 F.2d at pages 871 and 873:

"If the reason and spirit of the statute be considered, there is even less reason to think that it could have been intended to adopt state statutes of limitations as a bar to recovery. Congress was creating a liability not theretofore existing on the part of the government. To have defined all of the tort rules under which liability could be established would have been an almost impossible undertaking; but standards of liability were necessary and Congress was compelled, as a practical matter, to adopt the principles and standards of local law in defining them. The matter of limitations, however, was a simple one which Congress could easily determine for itself; and the fact that the one year limitation was prescribed in the act and was to run from the enactment of the statute if that was later than the accrual of the cause of action, so that the plaintiff should have at least a year to sue, is inconsistent with any idea that the period was to be shortened because a shorter period was provided by state law. * * *

"In any case, however, the limitation applicable to the action for death by wrongful act is recognized as a limitation upon the right to sue; and there is no reason to think that Congress did not intend that the limitations prescribed in the Tort Claims Act itself should be observed rather than such limitations of state law. In other words,

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