Jones v. United States, Civ. A. No. 2942-54.

• Decision Date: 03 December 1954
• Docket Number: Civ. A. No. 2942-54.
• Citation: 126 F. Supp. 10
• Parties: Clayton M. JONES and Aimee Jones, Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. District Court — District of Columbia

126 F. Supp. 10

Clayton M. JONES and Aimee Jones, Plaintiffs, v. UNITED STATES, Defendant.

Civ. A. No. 2942-54.

United States District Court District of Columbia.

December 3, 1954.

Joseph A. Rafferty, Asst. U. S. Atty., Washington, D. C., for defendant, for the motion.

Carl L. Shipley and Roy St. Lewis, Washington, D. C., for plaintiffs, opposed.

HOLTZOFF, District Judge.

This is an action against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2401, 2402, 2671 et seq. It seeks to recover damages for alleged negligence on the part of the Director of the United States Geological Survey in furnishing to the plaintiffs information claimed to be erroneous in respect to estimated recoverable oil from certain lands. Specifically it is charged that in response to an inquiry made by the plaintiffs, the Director of the Geological Survey replied that the ultimate recoverable oil from the lands in question would constitute 17,400 barrels per acre, whereas, in fact, the estimate should have been 50,000 barrels per acre. It is claimed by the plaintiffs that they were damaged by reason of the fact that, in reliance upon the estimate furnished by the Government, they sold their stock in an oil company which held a lease on the lands at a much lower price than they otherwise would have received. The complaint seeks to recover damages in the sum of $236,376.04.

The defendant moves for summary judgment on two grounds: first, that the action is barred by the statute of limitations; and second, that the action may not be maintained under the Federal Tort Claims Act. The first contention is based on the two-year statute of limitations contained in 28 U.S.C.A. § 2401(b), the pertinent provisions of which read as follows:

"(b) A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *."

From the allegations of the complaint, it appears that the claim, if any, accrued on September 6, 1951. This action was filed on July 9, 1954, almost three years later.

It is urged by the plaintiffs, however, that the statute has been tolled by reason of the following circumstances. On July 2, 1952, a suit was filed in behalf of the plaintiffs against the United States, on the same claim, in the United States District Court for the Southern District of New York. The case was dismissed by the court on April 5, 1954. The plaintiffs contend that the running of the statute of limitations was suspended during the pendency of the suit in the Southern District of New York. The legal basis for this contention is said to be found in Section 23 of the New York Civil Practice Act, which in effect provides that the statute of limitations shall be tolled during the pendency of another suit on the same cause of action, which is subsequently terminated otherwise than by a voluntary discontinuance.¹ This court is of the opinion, however, that the statute of limitations contained in the United States Code governs this case, and that the New York statute has no application.

Thus, in Young v. United States, 87 U.S.App.D.C. 145, 147, 184 F.2d 587, 21 A.L.R.2d 1458, it was held that in an action under the Federal Tort Claims Act to recover damages for death, the two-year period fixed by the Federal Tort Claims Act governs, rather than the one-year statute of limitations of the District of Columbia, which applies to actions for wrongful death generally. The court observed that conversely if under a local statute the time allowed in such cases exceeded that prescribed by the Federal Act, the latter would control, 87 U.S.App. D.C., at page 147, 184 F.2d at page 589.

The same conclusion was reached by the Court of Appeals for the Fourth Circuit in State of Maryland, to use of Burkhardt v. United States, 165 F.2d 869, 871, 1 A.L.R.2d 213. In that case the court held that the period of limitations prescribed by the Federal Tort Claims Act was applicable rather than a shorter period provided by a Maryland statute. Judge Parker formulated the governing principle as follows:

"* * * the purpose and effect of the language of the statute is that we shall look to the law of the state for the purpose of defining the actionable wrong for which liability shall exist on the part of the United States, but to the act itself for the limitations of time within which action

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