State of Maryland v. United States

• Decision Date: 30 December 1947
• Docket Number: No. 5633.,5633.
• Citation: 165 F.2d 869
• Parties: STATE OF MARYLAND, to Use of BURKHARDT, v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

165 F.2d 869 (1947)

STATE OF MARYLAND, to Use of BURKHARDT, v. UNITED STATES.

No. 5633.

Circuit Court of Appeals, Fourth Circuit.

December 30, 1947.

T. Hughlett Henry, Jr., of Easton, Md. (J. Martin McDonough, of Baltimore, Md., on the brief), for appellant.

Whiteford S. Blakeney, of Charlotte, N. C., as amicus curiae.

James B. Murphy, Asst. U. S. Atty., of Baltimore, Md. (Bernard J. Flynn, U. S. Atty., of Baltimore, Md., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal by plaintiff from an order dismissing an action to recover damages on account of wrongful death instituted under the Federal Tort Claims Act, Title IV, Public Law 601, Aug. 2, 1946, 60 Stat. 843, 28 U.S.C.A. § 921 et seq. The action was brought for the benefit of the widow of one George N. F. Burkhardt, who was killed on September 2, 1945, when the automobile in which he was riding was in collision with a truck of the United States Army. The action was instituted December 5, 1946, and was dismissed by the learned judge below because not brought within one year as required by the wrongful death statute of Maryland. Annotated Code of Maryland (1939 Ed.) c. 67. The contention of plaintiff is that the action may be maintained because instituted within twelve months of the enactment of the Tort Claims Act, which was ratified August 2, 1946. The pertinent provisions of that statute are sec. 410(a), 28 U.S.C.A. § 931(a), and sec. 420, 28 U.S.C.A. § 942, which are as follows:

"Sec. 410(a). Subject to the provisions of this title, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, including the United States district courts for the Territories and possessions of the United States, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death 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 for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages. Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that such costs shall not include attorneys' fees."

"Sec. 420. Every claim against the United States cognizable under this title shall be forever barred, unless within one year after such claim accrued or within one year after the date of enactment of this Act, whichever is later, it is presented in writing to the Federal agency out of whose activities it arises, if such claim is for a sum not exceeding $1,000; or unless within one year after such claim accrued or within one year after the date of enactment of this Act, whichever is later, an action is begun pursuant to part 3 of this title. In the event that a claim for a sum not exceeding $1,000 is presented to a Federal agency as aforesaid, the time to institute a suit pursuant to part 3 of this title shall be extended for a period of six months from the date of mailing of notice to the claimant by such Federal agency as to the final disposition of the claim or from the date of withdrawal of the claim from such Federal agency pursuant to section 410 of this title, if it would otherwise expire before the end of such period."

Under the law of Maryland, the limitation of twelve months prescribed in the wrongful death statute is held a condition precedent to the right to maintain an action thereunder (Stasciewicz v. Parks, 148 Md. 477, 483, 129 A. 793); and the contention of defendant is that since the action could not be maintained against a private person because not instituted within the twelve month period prescribed by the Maryland statute, it cannot be maintained under the Tort Claims Act, even though instituted within the period of limitations prescribed by that act. We think, however, that 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 shall be instituted to enforce the liability. The language of the act, its reason and spirit, its history and the effect and consequences of a different interpretation, all negative the suggestion that the limitations of the state law in addition to those prescribed in the act operate to bar recovery thereunder.

If we look to the language of the act, we find that the pertinent portion of the language contained in sec. 410(a) is the following: "The United States district court * * * shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States * * * on account of * * * death caused by the negligent or wrongful act or omission of any employee of the Government * * * under circumstances where the United States, if a private person, would be liable * * * in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this chapter, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances * * *." (Italics supplied.) This language clearly means that the standards and tests of local law are to determine whether a negligent or wrongful act has been established which is actionable and the nature and extent of the recovery permitted on account thereof, not the period of limitation within which the action must be instituted. The latter is prescribed by sec. 420, quoted above. The words "under circumstances", twice used in defining liability in sec. 410(a), are not apt words to encompass the passage of time or to suggest a period of limitations. "Circumstances are facts or things standing around or about some central fact." Salter v. State, 163 Ga. 80, 135 S. E. 408, 409. "'Circumstances' determining whether `negligence,' defined as want of care under circumstances, exists, embraces all attendant facts, including operation of forces of nature relating to central event". Pope v. Reading Co., 304 Pa. 326, 156 A. 106, 109. See also Graff v. Scott Bros., 315 Pa. 362, 172 A. 659, 661.

If the reason and spirit of the statute be considered, there is even less reason to think that it could have been intended to adopt state statutes of limitations as a bar to recovery. Congress was creating a liability not theretofore existing on the part of the government. To have defined all of the tort rules under which liability could be established would have been an almost impossible undertaking; but standards of liability were necessary and Congress was compelled, as a practical matter, to adopt the principles and standards of local law in defining them. The matter of limitations, however, was a simple one which Congress could easily determine for itself; and the fact that the one year limitation was prescribed in the act and was to run from the enactment of the statute if that was later than the accrual of the cause of action, so that the plaintiff should have at least a year to sue, is inconsistent with any idea that the period was to be shortened because a shorter period was provided by state law.

It should be noted, also, that the purpose of the legislation was to eliminate private bills, which had consumed so much of the time of Congress; and it is hardly consistent with such a purpose to eliminate from the coverage of the act claims not barred by the limitations therein provided but barred by state limitations with the result that such claims would have to be handled by private bills. In this connection, sec. 131 of the act provides: "Sec. 131. No private bill or resolution (including so-called omnibus claims or pension bills), and no amendment to any bill or resolution, authorizing or directing (1) the payment of money for property damages, for personal injuries or death for which suit may be instituted under the Federal Tort Claims Act * * * shall be received or considered in either the Senate or the House of Representatives." 60 Stat. 831.

The history of the legislation likewise negatives any intention that state limitations should bar recovery in such cases. Section 131 as passed by the Senate, there numbered 121, contained a provision that the section should not apply to any private bill or resolution conferring jurisdiction upon the federal courts to pass upon a private claim otherwise cognizable under the act, if it had accrued between January 1, 1939, and December 31, 1944. Mr. LaFollette of the Senate Special...