Keleket X-Ray Corporation v. United States

• Decision Date: 28 January 1960
• Docket Number: No. 15283.,15283.
• Parties: KELEKET X-RAY CORPORATION, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

275 F.2d 167 (1960)

KELEKET X-RAY CORPORATION, Appellant, v. UNITED STATES of America, Appellee.

No. 15283.

United States Court of Appeals District of Columbia Circuit.

Argued December 1, 1959.

Decided January 28, 1960.

Mr. John P. Arness, Washington, D. C., with whom Messrs. Frank F. Roberson and John J. Ross, Washington, D. C., were on the brief, for appellant.

Mr. Lewis Carroll, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher and William Laverick, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, BAZELON, and BURGER, Circuit Judges.

EDGERTON, Circuit Judge.

On April 27, 1956, Gertrude Slater suffered personal injuries in the course of an X-ray examination in Freedmen's Hospital, a government institution. Two years and four days later, on May 1, 1958, she filed a complaint charging negligence against Keleket X-Ray Corporation, the present appellant, and also against the United States, the present appellee. Keleket's answer, filed February 25, 1959, included a cross-claim against the United States for contribution.

Congress has provided that "A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *." 28 U.S.C. § 2401(b). Therefore Slater's claim against the United States was filed late and the District Court duly dismissed it. But Slater's claim against Keleket was timely, because it was filed within the three-year statute of limitation applicable to suits between private parties. On this appeal the question is whether the District Court was right in dismissing Keleket's claim against the United States for contribution. Slater v. Keleket X-Ray Corp., D.C., 172 F.Supp. 715.

"The principle of contribution is fairly well settled in this jurisdiction, notwithstanding the absence of a statute. George's Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219 * * *." D. C. Transit System, Inc. v. Slingland, 105 U.S.App.D.C. 264, 268, 266 F.2d 465, 469; certiorari denied 361 U.S. 819, 80 S.Ct. 62, 4 L.Ed.2d 64. As that case recognizes, the United States may be liable for contribution. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. It has been held that a tort claim against the United States for indemnity does not "accrue", within the meaning of the statute, until the party claiming indemnity has paid the injured person. Chicago, Rock Island & Pacific Ry. Co. v. United States, 7 Cir., 220 F.2d 939, 942. However that may be, we think it clear that Keleket's claim to contribution did not accrue before Keleket had been sued by Slater. Since that contingency had not occurred two years before Keleket's claim was filed, this claim was not barred by the two-year statute of limitations. "The government's contention on this point, if sustained, would mean that a suit under the Tort Claims Act could be barred before it came into existence." Chicago, Rock Island & Pacific Ry. Co. v. United States, supra, 220 F.2d at page 942.

The District Court dismissed Keleket's claim against the United States because Slater's claim against the United States was barred by the statute of limitations. The court said that in the ...