Glenn v. United States

• Decision Date: 30 March 1955
• Docket Number: No. 16031.,16031.
• Citation: 129 F. Supp. 914
• Court: U.S. District Court — Southern District of California
• Parties: Michael GLENN, a Minor, by and through his Guardian Ad Litem, Ida Mae Glenn, Plaintiff, v. UNITED STATES of America, Defendant.

129 F. Supp. 914

Michael GLENN, a Minor, by and through his Guardian Ad Litem, Ida Mae Glenn, Plaintiff, v. UNITED STATES of America, Defendant.

No. 16031.

United States District Court, S. D. California, Central Division.

March 30, 1955.

Samuel A. Rosenthal, Leonard G. Ratner, Norman Warren Alschuler, Los Angeles, Cal., for plaintiff.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Richard M. Darby, Asst. U. S. Attys., Los Angeles, Cal., for defendant.

MATHES, District Judge.

Plaintiff, a minor now five years old, by his mother as guardian ad litem, invokes the jurisdiction of this court under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), to sue for damages for injuries including cerebral palsy and other disabilities, alleged to have been sustained at the time of birth, or soon thereafter, by being dropped on his head by employees of the Dispensary at the United States Naval Air Station in Seattle, Washington.

Plaintiff was born on December 5, 1949, but the original complaint in this action was not filed until almost four years thereafter on November 12, 1953. The Government has pleaded as an affirmative defense the claimed bar of the two-year period of limitations specified in 28 U.S.C. § 2401(b).

The case has been continued from time to time to permit search for witnesses and documentary evidence. At the trial the parties presented for approval a stipulation, the salient provision of which is "that if this court decides that a cause of action is stated by plaintiff's first amended complaint herein which is presently maintainable by plaintiff under the provisions of the Federal Tort Claims Act and in particular under the provisions of Section 2401(b), Title 28, United States Code, judgment may be entered forthwith in favor of plaintiff in the full and total sum of $7,500, which figure shall include all attorneys fees but shall not include costs. * * *"

After hearing a full explanation of the problems incident to possible proof (1) that any negligent act or omission occurred at the time of plaintiff's birth, and (2) that the cerebral palsy from which plaintiff now admittedly suffers was proximately caused by some such negligent act or omission, the Court approved the stipulation and received it in evidence at the request of plaintiff. Thereupon the case was submitted for decision on the stipulation and the briefs on file. In making this semi-compromise submission, both sides expressly reserved all rights of appeal.

Subsection (a) of § 2401 provides for a general limitation of six years for civil actions against the United States. Subsection (a) also provides in part that: "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." Plaintiff, being an infant, clearly is a "person under legal disability" within the meaning of the statute. See § 41(20) of Title 28, repealed by Act June 25, 1948, c. 646, § 39, 62 Stat. 992.

Section 2401(b) of Title 28 provides in part that: "A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *." See United States v. Westfall, 9 Cir., 1952, 197 F.2d 765, 766.

The specific question presented for decision is whether the general provision of subsection (a) of § 2401 tolling the statute of limitations for "any person under legal disability" applies to tort claims against the United States, which are expressly provided for in the next-following subsection (b). To put it another way, does the general language of subsection (a) of § 2401 modify the particular language of subsection (b)?

The Government cites two cases in support of its contention that tort claimants do not fall within the tolling provision of subsection (a). Foote v. Public Housing Com'r of United States, D.C. W.D.Mich.1952, 107 F.Supp. 270, 275; Whalen v. United States, D.C.E.D.Pa. 1952, 107 F.Supp. 112, 113.

The Foote case, so far as relevant here, was a suit by the personal representative of children who had died as a result of injuries received; and Judge Starr there observed, after referring to the Whalen decision, that "the `legal disability' provision in § 2401(a) is not applicable in the present case, because that provision clearly relates only to disability of living persons." 107 F.Supp. at page 276. Obviously, then, Judge Starr never reached the question at bar as to the applicability of the tolling provision of subsection (a) to living persons "under legal disability" who assert claims under subsection (b).

However the Whalen case does support the Government's contention here, and Judge Ganey there observed: "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." 107 F. Supp. at page 113.

As was said in Ex Parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207: "The short answer is that there is no need to refer to the legislative history where the statutory language is clear." 337 U.S. at page 61, 69 S.Ct. at page 947.

Subsection (a) of § 2401 states in the plainest possible language that: "The action of any person under legal disability * * * may be commenced within three years after the disability ceases."

The best evidence of what was intended by any enactment will almost always consist in "the words by which the legislature undertook to give expression to its wishes". United States v. American Trucking Ass'ns, 1940, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345. Yet where "the meaning of language is plain" the courts may look to legislative history for further evidence, in order to determine whether "giving the words their natural significance * * * leads to an unreasonable result plainly at variance with the policy of the legislation as a whole." See: Ozawa v. United States, 1922, 260 U.S. 178, 194, 43 S.Ct. 65, 67, 67 L.Ed. 199; Chatwin v. United States, 1946, 326 U.S. 455, 464, 66 S.Ct. 233, 90 L.Ed. 198, or whether a certain word, phrase or clause has been employed with a more limited or otherwise different meaning "than might be attributed to it by common practice." Boston Sand & Gravel Co. v. United States, 1928, 278 U.S. 41, 48, 49 S.Ct. 52, 54, 73 L.Ed. 170; United States v. American Trucking Ass'ns, supra, 310 U.S. at page 545, 60 S.Ct. 1059; Duplex Printing Press Co. v. Deering, 1921, 254 U.S. 443, 471-477, 41 S.Ct. 172, 65 L.Ed. 349; United States v. Fisher, 1805, 2 Cranch 358, 385-386, 6 U.S. 358, 385-386, 2 L.Ed. 304.

A brief examination of the legislative history of both subsections of § 2401 will be helpful. The predecessor of subsection (a) of § 2401 was § 41(20) of Title 28 which was repealed with the 1948 revision of the Judicial Code. 62 Stat. 992, § 39 (1948). Section 41(20) provided in part that: "The claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively."

The forerunner of subsection (b) of § 2401 was § 942 of Title 28, derived from § 420 of the Federal Tort Claims Act, 28 U.S.C. § 942, repealed by Act of June 25, 1948, c. 646, § 39, which provided that "Every claim against the United States cognizable under this title shall be forever barred, unless within one year after such claim accrued * * * an action is begun * * *." 60 Stat. 845, § 420 (1946). It will be noted that in former § 942 no mention is made of persons under disability. It should also be noted that § 41(20) and § 942 were enacted at widely separated times. Section 41 (20) was first enacted in the Tucker Act of March 3, 1887, see United States v. Greathouse, 1897, 166 U.S. 601, 17 S.Ct. 701, 41 L.Ed. 1130, whereas § 942 was enacted August 2, 1946, as part of the Federal Tort Claims Act.

In sum then the 1948 revision operated to recodify the quoted portion of old § 41(20) into subsection (a) of new § 2401, and to recodify the quoted portion of old § 942 into subsection (b) of new § 2401. And both have since stood as a single, integrated section of the Code. Subsection (b) was amended in 1949 to increase the period of limitations for the bringing of tort actions against the United States from one year to two years. 63 Stat. 62, § 1 (1949).

As Judge Ganey suggests in Whalen v. United States, supra, D.C., 107 F.Supp. at page 113, mere rearrangement or collocation of sections, without more, does not evince legislative intent to change the law. General Inv. Co. v. Lake Shore & M. S. R. Co., 1922, 260 U.S. 261, 278, 43 S.Ct. 106, 67 L.Ed. 244; Page v. Burnstine, 1880, 102 U.S. 664, 669, 26 L.Ed. 268; see Buck Stove & Range Co. v. Vickers, 1912, 226 U.S. 205, 213, 33 S.Ct. 41, 57 L.Ed. 189. Nor does mere codification of existing statutory provisions change their original meaning. Adamowski v. Bard, 3 Cir., 193 F.2d 578, 581, certiorari denied, 1952, 343 U.S. 906, 72 S.Ct. 634, 96 L. Ed. 1324. Nor is change in legislative policy to be deduced from a mere reorganization of the laws for clarity and simplicity. United States v. Ryder, 1884, 110 U.S. 729, 740, 4 S.Ct. 196, 28 L.Ed. 308; Gulf Research & Development Co. v. Schlumberger Well Surveying Corp., D.C.S.D.Cal., 92 F.Supp. 16, mandamus denied, 9 Cir., 1950, 185 F.2d 457; see 82 C.J.S., Statutes, § 271, p. 449.

However, it bears repetition that subsections (a) and (b) of § 2401 were revised along with the general revision of the Judicial Code in 1948, and not merely rearranged. See Senate Report, 28 U.S.C.A., pp. 365-366 (1948). It is proper then to turn to the Reviser's Notes...