129 F. Supp. 371 | D. Mass. | 1955
This is an action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., for injury to the plaintiff’s person and damage to his automobile'. The amount of the claim is $2,500. The defendant has filed what amounts to a motion to reduce the a'd damnum. On the record the motion is premature, but the plaintiff has expressed a wish that I pass on the question involved at this time, and' has stipulated that I consider therewith two letters passing between him and an Army claims officer, along with certain statements of counsel.
Thereafter the plaintiff’s claim was denied on the grounds that he was contributorily negligent. He appealed to the Secretary of the Army. The appeal was dismissed in November, 1953. In October, 1954 he brought this suit.
The second, or amended claim, in July 1953 was duly filed under Title 28 U.S.C.A. § 2672. It was presented to a federal agency and fell within the description of § 2675(a), and, consequently could not be sued on until final disposition by the agency. More than that, it then became subject to' the limitations imposed by § 2675(b). I believe that the second sentence of § 2675(b) relates to the whole section, and not simply to subsection (b); in other words, that it applies not only to voluntarily withdrawn claims, but also to claims that have been denied. No offer was made that there have been newly discovered evidence or intervening facts relating to the amount of the claim. The plaintiff hence is prevented by Title 28, § 2675(b) from maintaining the present action for a principal amount in excess of $956.77. The argument that the government is estopped by reason of the fact that the officer suggested reducing the claim does not even get off the ground. His letter of July, 1953 clearly offered the plaintiff both alternatives. The plaintiff exercised a free untrammelled choice.
Accordingly, I grant the defendant’s motion by ordering that the principal amount of the plaintiff’s claim be reduced to $956.77. Corkle v. United States, D.C.E.D.S.Car., 94 F.Supp. 908; Morgan v. United States, D.C.S.D.N.Y., 123 F.Supp. 794.