Simon v. United States
Decision Date | 17 May 1957 |
Docket Number | No. 16504.,16504. |
Citation | 244 F.2d 703 |
Parties | Lewis SIMON, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Sanders, Thurmond & Hester, Carl E. Sanders, Augusta, Ga., for appellant.
William C. Calhoun, U. S. Atty., Augusta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
This appeal presents a single question for decision. It is whether, filed October 12, 1956, under the Federal Tort Claims Act, for damages sustained in an automobile collision on October 19, 1951, the action was filed too late.
The claim was that: though Section 2401(b)1 of Title 28, conditions the consent of the United States to be sued in tort upon the bringing of the action within two years after the claim accrued, plaintiff was upon its accrual and until June, 1954, continued to be, under the disability of minority; and that under Sec. 2401(a)2 he had three years after it was removed to bring the suit.
The United States moved to dismiss the action because the complaint, showing on its face that it was not brought within the two years provided in Sec. 2401(b), fails to state a recoverable claim. The motion was granted, and the suit was dismissed.
Appealing from the judgment, appellant, conceding that prior to the 1948 codification, the consent to sue in tort was limited to two years, urges upon us: that by and because of the codification, the disability provisions of Sec. 2401(a) were intended to, and must be, read into the consent to sue in tort; and that the judgment was wrong and must be reversed.
In support of his position, appellant, arguing for a liberal interpretation of the Federal Tort Claims Act and urging upon us the general considerations of public policy which underlie tolling provisions, cites in support of his view an opinion of the District Court for the Southern District of California, Glenn v. United States, 129 F.Supp. 914, reversed in United States v. Glenn, 9 Cir., 231 F.2d 884.
On its part, the United States, invoking the settled law that exceptions to the operation of a statute of limitations which toll its running in favor of persons under disability are to be strictly construed and never extended beyond their plain import, cites Chuchuru v. Chutchurru, 10 Cir., 185 F.2d 62, and Hobby v. Hodges, 10 Cir., 215 F.2d 754, 755.3
In addition, it calls attention to the established rule that Congress has the power to say when and where the sovereign will be sued, and when such consent is given the courts are confined to the letter of the statute.
In full agreement with the position of the United States, we think it clear that appellant's insistence is in direct conflict with the fundamental principle of law controlling here, that when, as in the Federal Tort Claims Act, the sovereign, by statute creating a cause of action and consenting to be sued upon it, makes it clear that the consent of the United States to be sued in tort is conditioned upon the suit's being filed within the time fixed in the Act and not otherwise, exact compliance with the terms of consent is a condition precedent to suit.
That this is hornbook law, a reference to 34 Am.Jur. "Limitation of Actions", Sec. 7, "Qualifications Annexed to Right of Action" will show:
* * *"(Emphasis supplied.)
to which the 1956 Cumulative Supplement has added at the end of the section the following:
"Generally speaking the time requirement prescribed by a statute granting the right to sue the United States or a state is construed as a condition or qualification of the right; such a provision is in other words jurisdictional rather than a mere statute of limitations." citing many cases, including United States v. Chicago Golf Club 7 Cir., 84 F.2d 914, 106 A.L.R. 209. (Emphasis supplied.)4
In point also is Section 16 at page 26, where it is said:
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...period is not tolled by a claimant's minority. E. g., Smith v. United States, 588 F.2d 1209, 1211 (8th Cir. 1978); Simon v. United States, 244 F.2d 703 (5th Cir. 1957); United States v. Glenn, 231 F.2d 884 (9th Cir.), cert. denied, 352 U.S. 926, 77 S.Ct. 223, 1 L.Ed.2d 161 (1956); Hoch v. C......
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...beyond question that Section 2401(b) is not a statute of limitations, within the legal definition of that term, Simon v. United States, 244 F.2d 703 (5th Cir., 1957); Compagnie Generale Transatlantique v. United States, 51 F.2d 1053 (2nd Cir., 1931); United States ex rel. Rauch v. Davis, 56......
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