United States v. Michael Glenn, a Minor, by and Through His Guardian Ad Litem, Ida Mae Glenn

231 F.2d 884 UNITED STATES of America, Appellant, v. Michael GLENN, a minor, by and through his guardian ad litem, Ida Mae Glenn, Appellee. No. 14860. United States Court of Appeals Ninth Circuit. March 20, 1956. Rehearing Denied May 25, 1956. Warren E. Burger, Asst. Atty. Gen., Paul A. Sweeney, Marcus A. Rowden, Attys., Dept. of Justice, Washington, D. C., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., for appellant. Leonard G. Ratner, Samuel A. Rosenthal, Norman Warren Alschuler, Los Angeles, Cal., for appellee. Before STEPHENS, ORR and CHAMBERS, Circuit Judges. CHAMBERS, Circuit Judge. 1 Michael Glenn was injured at birth when he was born on December 5, 1949, at the United States Naval Air Station Hospital at Seattle, Washington. Someone was careless. He was dropped on the floor, suffered a head injury and apparently will bear the burden of the injury for life. 2 On November 12, 1953, the minor by his mother as guardian, sued the United States under the Federal Tort Claims Act. 1 In the lapse of four years, witnesses had scattered and records had become sparse. The plaintiff's guardian was hard put to prove her ward's case and the government seems to have been in no…

Michael Glenn was injured at birth when he was born on December 5, 1949, at the United States Naval Air Station Hospital at Seattle, Washington. Someone was careless. He was dropped on the floor, suffered a head injury and apparently will bear the burden of the injury for life.

On November 12, 1953, the minor by his mother as guardian, sued the United States under the Federal Tort Claims Act. 1 In the lapse of four years, witnesses had scattered and records had become sparse. The plaintiff’s guardian was hard put to prove her ward’s case and the government seems to have been in no position to find witnesses to make a good defense. In this situation the parties stipulated to a judgment for «$7,500 against the United States if the plaintiff could survive the government’s defense of the statute of limitations.

The limitations provision involved is found in 28 U.S.C.A. § 2401 as follows:

The question is whether 28 U.S.C.A. § 2401 (b) is qualified by the second sentence of 2401(a) or does that sentence only qualify the first sentence of 2401 (a), the sentence, to repeat, being as follows:

The district court in a very able and scholarly opinion held the sentence to sweep up and…

(dissenting).

I do not find myself able to concur in the majority opinion that the trial court ■committed clear error in holding the disability clause of subdivision (a) inapplicable to subdivision (b) of § 2401, Title 28 U.S.C.A.

The revisors of Title 28 of the United States Code undertook to eliminate repetitions and conflicting sections of the code and to that end, sections pertaining to specific factual situations were replaced by sections applying more generally. The subject of limitations was treated under this principle. Thus, they ■encircled “Every civil action commenced .against the United States” by the limitation of six years to begin action. Of course, the revisors were well cognizant of the doctrine that a person with a cause of action should not be deprived of his ■cause by a limitation running while he could not act. Appropriately, then in the same paragraph which contains the limitation, the revisors diluted the full effect of the limitation by providing that it would not run during the period of the ■disability and providing, not the full six years after the disability had been removed, but just half that time.

But it was thought that tort claims .against the…