Morgan v. United States
Decision Date | 29 August 1956 |
Docket Number | Civ. A. No. 19-56. |
Citation | 143 F. Supp. 580 |
Parties | Anne MORGAN, William Morgan, an infant by his Guardian ad litem Robert Morgan and Robert Morgan, individually, Plaintiffs, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — District of New Jersey |
Herman Scott, Acting U. S. Atty., Passaic, N. J., for the Government.
In this action under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., the Government moves for dismissal under Rule 12(b) (6) of the Rules of Civil Procedure, 28 U.S.C.A., contending that the complaint fails to state a claim against defendant upon which relief can be granted because barred by the two-year period of limitation set forth in 28 U.S.C.A. § 2401(b). This Court derives jurisdiction of the action from 28 U.S.C.A. § 1346(b).
The action was commenced by the filing of the complaint therein on January 16, 1956, Rule 3, R.Civ.P. Plaintiffs allege four causes of action. The first cause of action is a claim of Anne Morgan for damages for personal injuries and their consequences resulting from the alleged negligent transfusion into her blood stream, on February 10 or February 12, 1953, of blood of an improper or unsuitable type in the course of treatment administered to her by defendant's agent while she was a maternity patient at defendant's Army Hospital at Indiantown Gap, Pennsylvania.
The second cause of action is a claim in behalf of an infant child of Anne Morgan, born June 15, 1955 at Montclair, New Jersey, for damages for the effects upon the health of the child alleged to have resulted from the injuries of which the mother complains in the First Cause of Action.
The third and fourth causes of action embody claims of Robert Morgan in his respective capacities as husband of Anne and father of her said infant child.
Defendant contends that the claims of all of the plaintiffs are barred by 28 U.S.C.A. § 2401(b). The cited section reads in full as follows:
From the "Historical and Revision Notes" appended to the foregoing section we learn that it is based on Title 28 U.S.C. 1940 ed. §§ 41(20) and 942 which are consolidated thereby, and that present subsection (b) simplifies and restates former section 942.
Former section 41 of Title 28 prescribes the original jurisdiction of the District Courts, and subsection 20 thereof confers jurisdiction of suits against the United States. Insofar as here relevant the subsection reads in part as follows:
It should be remembered that the foregoing section (41) did not confer jurisdiction of actions upon tort claims against the United States, and the Federal Tort Claims Act was not adopted until 1946. The tolling provisions of former section 41 were, therefore, not in contemplation of actions against the Government upon tort claims. In 1948 jurisdiction in tort actions against the Government was conferred upon the District Court by former section 931(a) now included in section 1346(b) of Title 28. Thus the right and jurisdiction to entertain a suit to recover against the Government for a tort was created by legislation independent of and subsequent to that by which limitations were imposed and tolling thereof was contemplated with respect to other than tort claims against the United States. While a "civil action commenced against the United States" as the phrase is used in 28 U.S.C.A. § 2401(a) is a classification broad enough to include an action upon "A tort claim against the United States" as that phrase is used in subdivision (b) of the same section, we must assume that the Congress had some reason for singling out for separate limitation treatment Federal Tort Claim cases from other civil actions against the Government. In construing the Federal Tort Claims Act in Indian Towing Co. v. United States, 1955, 350 U.S. 61, at page 69, 76 S.Ct. 122, at page 126, Mr. Justice Frankfurter suggests avoidance of extremes when he says:
The Act itself, 28 U.S.C.A. § 2680, expressly excludes from its application and that of Section 1346(b) thirteen different categories of tort claims which might otherwise be construed to be within the meaning of the language:
"claims against the United States, for money damages * * * for injury * * * 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"
contained in said section, § 1346(b).
The specific question presently confronting us has already been judicially answered adversely to the plaintiffs' right to maintain this action.
In Whalen v. United States, D.C.Pa. 1952, 107 F.Supp. 112, an action commenced January 3, 1952 under the Federal Tort Claims Act for injuries sustained by an infant on January 24, 1947 was dismissed on defendant's motion because barred by 28 U.S.C.A. § 2401 (b). At page 113 of 107 F.Supp. of his opinion, District Judge Ganey commented upon the subsection as follows:
About two months after Judge Ganey's decision in Whalen, Judge Starr reached the same conclusion in the Southern Division of the Western District of Michigan on defendant's motion to dismiss in a death case under the same Act. Foote v. Public Housing Commissioner of United States, D.C., 107 F.Supp. 270, 272....
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...trial court cases to the contrary are Francis v. Pan American Trinidad Oil Co., (D.Del.1975) 392 F.Supp. 1252, and Morgan v. United States, (D.N.J.1956) 143 F.Supp. 580. Other cases, which are also sometimes cited for this contrary rule, actually hold that both the loss of consortium claim ......
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