*1 signaling' back that he cut into right plaintiff. in front lane plain jury took account finding guilty negligence him tiff’s negligence. total 35% jury province
well Upon con make this determination. record, we can entire sideration of say plain lawof that as a matter greater negligence equal tiff’s than Buzzell’s. hold that was substan there negligence that defendant’s
tial evidence err did not The trial court causal. change jury’s refusing answer special proposition. verdict alternative, court In the the trial refusing change ap not err in negligence portionment fixed refusing jury trial. or in a new judgment of the district court things all affirmed. Affirmed. Lane, Winn, Dallas, Tex., B. Edward Winn, Tex., Savage, Dallas, Counts & counsel, appellant. McElroy, Jr., Atty., Joseph Asst. U. S. Atty., Dallas, Tex., Levenson, I. Jerome QUINTON, Appellant, Lee C., Justice, Dept, Washington, D. Wil- Orrick, Jr., Atty. Gen., liam H. Asst. America, UNITED STATES Sanders, Atty., S. Barefoot U. John G. Appellee. Laughlin, Attorney, Department of Jus- No. 19354. tice, Washington, C., appellee. D. Appeals
United States Court TUTTLE, Judge, Before Chief Fifth Circuit. WISDOM, HUTCHESON and Circuit June Judges. Judge. TUTTLE, Chief a tort the United This is brought pursuant to 28 U.S.C.
States mal- It is based practice of certain Government em- treating plaintiff's wife ployees hospital May, base an Air Force dismissed the com- District Court ground plaint that was barred *2 August that, 29, alleged as a on year two in- result of the transfusions 2401(b). “direct contained in 28 U.S.C. § gave compatible blood,” appellant’s wife claim a tort Under Section to a child December birth stillborn on against must as- the United States safely bear and that she cannot years “claim after the serted within two without, probability, children in all other in primary accrues.” The mentally being stillborn, blind, or their law appeal state or whether defective. accrues” “claim determines when a dismiss the resolving Government moved to der that After section. ground was on the claim problem, must then of law choice we years claim law, filed more than two after the applicable whether, decide under barred under accrued and was therefore malpractice claim for accrued when By 2401(b). the terms of 28 alleged negligent U.S.C. place § or when took acts August 29, 1961, Dis- order dated party or, in discovered granted trict Court the Government’s exercise of care should reasonable alleged opinion, motion. In its the District existence these neg- that, negligent Court noted ligent since the acts. e., injury, act which caused i. The District Court held that state law transfusions, place the blood took controlled limi- as to when the statute of Washington Washington, State of law run, tations commenced and it dis- controlled on of when the issue the claim ground that, complaint missed the accrued. The decision this is- Court’s on applicable under the that, primarily sue was based the fact against tiff’s claim ac- Government Act, under the Tort Claims the United years prior crued more than is liable in “under States tort cir- filing of suit. * * * private cumstances where person, would be liable to the claimant We have concluded that place in accordance with the law holding. District Court erred in so the act or where omission occurred.” 28 (1) hold upon that federal law fixes the date Having U.S.C. §§ period which the Tort Claims Washington cided that the law of con- (2) limitations commences run issue, trolled the the District Court then that, under federal that, Washington law, ap- found under against the United States can be pellant’s claim when accrued the Govern- maintained within two after the alleged negligence place ment’s took claimant or in exercise May 17, 1956. The Court therefore held of reasonable should have dis that the action was barred 28 U.S.C. covered, the existence of the acts of mal practice upon which his claim is based. What law determines claim ac- giving litigation The facts rise to this 2401(b)? crues under § simple are undisputed. appellant serving was It must be conceded the United Govern- argument States Air Force point ment’s on this was stationed at has the logical Larson Air consistency. Force Undeniably Base in merit State Washington. May 17, 1956, On if state law controls whether a appellant’s wife claim has hospital accrued under base the Govern- care, given she purpose for the determining ment three transfusions blood, although RH Positive her claimant can sue correct Negative. type appears instance, RH Claims Act first blood Tort appellant and his wife contend that state reasonable govern likewise as to when learn the exercise reasonable care, of, purpose applying could not have for the learned this error year during preg- of limitations until wife’s the two June 2401(b). But, nancy. complaint, tained however was filed logi- might varying periods bring with a meet within which this view much depending are com- approval, we think there suit solely cian’s holding pelling otherwise. on where their claims arose. reasons *3 Interestingly enough, enacting By mal- the field of is now Section what unmistakably practice striking presents (b), Congress clearly illus- claims a single tration of the ill to have a effects which would intention manifested its produced govern accept tort all were we to the Govern- limitations of statute theory. against majority A of ad- States ment’s states claims asserted mal- here to practice rule a claim for Act. While that the Tort Claims under wrong- analysis state law to accrues at the time of the an of left to malprac- ful act which constitutes whether the determine instance, many however, states, tice.1 In of these claimant in the first liable to the engrafted designed exceptions upon 2401(b) have been this to insure Section general liability Thus, that, rule. a number of states Government’s once the that, negligent physician hold where applicable law was estab- der lished, state injured patient a continues to treat the FTCA claimant would have negligent act, period after the initial statute which in- fixed of begins regardless of claim, to run from the on his stitute suit giving this is terminated.2 Still liabili- treatment the acts rise where jurisdictions permit other ty occurred. malprac- patient to assert his for however, readily apparent, that It is an tice form of action for breach urged by proposition the Government contract,3 or in form of an action by adopted District Court would states, A for fraud.4 on number Congres- seriously frustrate this clear hand, recognizing injustice other (b). underlying policy Section 2401 sional majority rule, expressly reject- have Obviously, if rules the various states’ permits in favor ed it rule which a severally determine when a claim could injured party sue within a certain against under the Government has or in the uniformity Section exercise reasonable Congress sought by enacting that section upon the facts which his practical purposes, be, for all a would quite apparent, claim is based.5 goal impossible of Differ- attainment. application that of these diverse rules ing particular state rules to when produce tinder Section would necessarily pro- claim accrues tort diverse results as to the effect that to the diverse decisions as effect duce thereby section, and would discriminate (b). by The mere alteration Section among solely on claimants the basis of rule a state of its as to accrual of operative giving where the facts rise to particular alter claim would their claims arose. cannot believe effectively Congress 2401(b) just as as if Congress this what intended. formally amended section. itself had precedent is there Nor lack Thus, acceptance of the Government’s the view that should deter- permit the states to do indi- view mine when claim accrues under Sec- Congress rectly clearly what forbids them Strong support for such decreasing increasing directly do holding found in those cases a view particu- of limitations statutes their determines not state law federal and contrary express claims; lar wrongful death an action 2401(b), claimants of Section purpose timely instituted has would have Tort Claims Act under Lillicli, supra page at 2. 360. Malpractice Lillich, Statute “The See 1. New York Other Limitations States,” supra page Lillich, 361. 3. 357. L.Q. Cornell Lillich, supra page 364. 4. supra Lillich, at 357-60. rejecting In appointed Act. administrator. the Tort
Government
The
land,
contention,
Mary-
court noted
leading
here is State
plaintiff’s
contention
hold with
“[t]o
Burkhardt v.
Use of
would,
cir-
point
effect, permit
Cir.,
1 A.L.R.2d
States, 4
165 F.2d
two-year
following
state law of the
perti-
cumvention
case, the
2401(b)]”
provided
limitation
in [section
appear:
nent comments
at 275.
spirit
the reason
“If
case,
case,
The Bizer
considered,
like the instant
there
involved claim for
reason to think that
it could
less
The claim arose out
adopt
the Government.
been intended
*4
perform-
an examination which
been
had
a
to
limitations as
bar
statutes of
plaintiff
a
doc-
creating
ed on the
Government
recovery. Congress
a
was
Hospital.
liability
existing
tor at a Public Health
Service
not theretofore
government.
place
This
years
part
examination took
four
some
of the
To
the
filing
prior
the
suit. The
to
of the
un-
defined all of
rules
have
the tort
alleged
during
complaint
that,
liability
the exam-
der which
estab-
could be
ination,
neg-
plaintiff's
“the
was
bladder
would have
an
im-
lished
been
almost
ligently
damage
punctured causing
his
possible undertaking;
to
but standards
peripheral
system.”
liability
necessary
nervous
The com-
of
gress
were
and Con-
plaint
plaintiff
further
compelled,
practical
was
as a
neg-
matter,
adopt
principles
“did not discover that
ligently
been
to
the
defining
of
treated or the
his
local
true cause of
standards
law in
injuries
limitations,
well
until
them. The matter of
bringing
however,
simple
the
of the action.”
was a
one which
Congress
easily
could
determine for
interesting
that,
Bizer,
It is
to note
itself;
year
and the fact that the one
taking
was
the
which was
prescribed
limitation
act
the
position
the
that federal law determined
and was to run from the enactment
when a claim accrued under Section
of the statute if that was later than
2401(b). This was because under the
action,
the
accrual
the cause of
applicable
California
plaintiff
so that
at
limitations on a claim for
year
sue,
a
to
least
is inconsistent
not
to
commence
run
until the
idea that
party knew or had reason to know of the
peri-
a
shortened because
shorter
injury.
rejected
provided by
od was
state law.’’ 165
following
tiff’s contention in the
lan-
at 871.6
F.2d
guage :
point
precise
here
issue was
adversely
law
the state
does control
cided
“Thus
Government in
Housing
Tort
Commissioner,
v.
when the
Claims limitation
Foote
D.C.Mich.,
Public
be-
gins
very
F.Supp.
important
run
one
Bizer
States, D.C.Cal.,
There
sense.
must be in
existence
case,
state cause
action
949.
In the Foote
before
stat-
the court held
anything
on,
law
ute has
if
federal
run
or
determined whether
you will,
wrongful
action for
before the "claim accrues”.
cause
death un-
governs
law
State
existence
der
FTCA accrued
plaintiff
ap-
But this
of action.
at the time the
cause
or
this
death
thing
from
pointed
quite
different
administrator of the estate
be-
the state statute
had contend-
which
decedent.
gins
issue,
the normal case
law
run.
ed
state
controlled
that,
of action
of the cause
cause
existence
state
peri-
did not
until
the commencement
action
accrue
he had
Young
App.D.C.
21 A.L.R.2d
F.2d
also
See
87 U.S.
innocently
wll
but
unaware
limitation
be simultane-
claimants
od of
disregarded. Thus,
necessarily
application
ous,
so.
not
but this is
2401(b)
entirely
would turn
Califor-
case here. The
This is the
ef-
method chosen
state to
there
not hold that
nia cases do
policy
area,
fectuate its
prior
in existence
no cause
action
though
responsible
those
choice
for this
begin the
conditions which
gave
undoubtedly
consideration
running
In-
state statute.
effect
their
would have
decision
brings
deed,
Act.
Tort Claims
which, by
during
period in
his
totally
argument,
We think such a result
to be
the state statute
justifiable.
yet
begun
Either
the entire
state
run.
I
hold
applied
governs
scheme of limitations
must be
law
state
under Section'
comes
existence
cause
into
ignored completely.
governs
scheme must be
when the
but the
Otherwise,
often
begins
we would
find ourselves
Tort Claims limitation
following
law,”
reaching
added.)
(Emphasis
“state
124 F.
run.”
*5
completely
decision
with a state's
odds
Supp. at 952.7
policy.
impossible,
chosen
Since it
is
simple
is that state law re-
fact
.
language
express
under the
2401(b),
of Section
specting
particular
the
of a
accrual
claim
give
law
to
the effect to state
from
law fix-
cannot be divorced
the state
entirety,
no
its
we see
alternative but
ing
period
accrual
which
the
after
within
disregard
completely.
it
bring
plaintiff
the
suit on
ac-
the
can
malpractice
however,
In the area
contends,
crued claim.
Government
claims,
question of when the
the
that such
would
a rule
be inconsistent
should
previous
of limitations
commence to run
our
decision in United
long
subject
Reid, Cir.,
been a
of heated con-
has
troversy.
States v.
evidence and States, fact Federal Act. Bizer v. United allegations D.C.Cal., out complaint, F.Supp. 952; of the 124 question tentatively Housing determined Foote v. Public Commis- * ** by requires sioner, D.C.Mich., us final resolu- 107 273, 274; Md., tion. The concerns the State of to Use of States, time a “claim Cir., accrues” under Burkhardt 4 Sec- negli- 869, 871, 873, tion of the F.T.C.A. 165 F.2d for 1 A.L.R. ” * * * gent 213; medical 2d advice treatment F.2d at resulting later in footnote 4. advanced tubercu- losis. able solved yond ment. was, in the unavoidable uncertain- ties what implications. here gal * * * . “The full record is not less favor- [******] “In ruling of a guardedly put forward as a le- the reach of inference Indeed, been our is more than case not by us, light, plaintiff earlier decision and well it is grounded. Urie v. is likewise yet tried, stronger. summary than helpful we held be- Thompson We proved some- What unre- judg- anal- ad- its down case, supra. period of Reid law determines able mine against plaintiff’s state It seems clear the claimant though federal case, merely adopted by law to Act. commences to run the District Court in the Bizer limitations contained meaning action Government which would we That In other look state law to deter- any claim has determine whether when to sue under the Tort determines rule, to premature, a “claim accrues” we look words, simply stated, Court, the rule laid [i. when the e., 2401(b)], Section federal but en- unnecessarily determine whether the condemned as an law to unjust plaintiff has a harsh rule of This action is If law. stale. many storm of the Government criticism has cause stimulated legislation, by states to then alter the rule under federal law plaintiff time- has while other states have left it to their
trols as ly to whether judiciaries remedy.10 on that proper suit to recover fashion a instituted his of action. cause majority rule, far as we Since this so redeeming significant discern, re can has Government’s contention undoubtedly spect virtue, apply we under Sec- Reid case was decline to Rather, 2401(b). of the far motivated the statement we think just ap- Appeals in Tes the most plied rule for First sensible Circuit Cir., F.2d section is that sier v. 305, 309, Gov- that: “ * * * ernment claimant when the the second [in the court or in the of reasonable exercise appeal] apply Urie Reid did not acts consti- should have tuting rule that the action accrued alleged malpractice.11 had been when the injured, knew he following rather, but Geor- supported by believe such rule gia sought time'when, Supreme Court in the decision of party, known to harm either Urie, supra. Thompson, Urie v. thus a fact occurred and there was complete legal employer sued his under the wrong.” Liability Employers’ Federal Act [45 hold that The Court then went on to damages seq.] to U.S.C.A. 51 et recover not federal law determines state law and working ground that, under Section a claim accrues continually exposed employer, he was thereby caused to silica dust and Appeals aware of to the Court of contract silicosis. Urie became With deference Circuit, we think we the existence the disease sometime First interpreta already demonstrated he filed on November that its *7 provides opinion Reid tion of our second un FELA that The sound; and, employee’s insofar as the Tessier claim must asserted be contrary reached, the decision here action ac- three after “cause must, employer previously the reasons stat crued.” claimed that since we ed, reject for exposed to silica dust since it.9 Urie 1910, undoubtedly he contracted silicosis malpractice When does a claim accrue for 25, 1938, long prior November 2401(b)? under Section that his “cause action accrued” thus majority rule that a cause ac- longer years before com- than three malpractice for accrues on rejecting this of suit. mencement contention, though negligent act, of injured patient Supreme stated: Court plight, is unaware of his heavy subjected “If criticism Urie were held barred has been years. uniformly prosecuting has this action because It almost over Hungerford similarly reject ly malpractice must be that for a claim 9. We D.C.Cal., whore commenced within certain relying Tessier, accrues,” Court, held that “claim construed those provide that a mal- accrues statutes to claim for law determines when a claim practice accrues under Section was or Lillich, been discovered. See Ullicli, generally, supra. 10. See pages supra at 358-59. More- argu- over, impressed Supreme are not with we think Court’s 11. We Congressional Thompson, cision in discussed take a Urie ment that infra, rule. such a is itself a sufficient answer to this to effectuate enactment argument. stat- whose a number of states in Courts general- utes, like section declare language quoted said, We think matter must be as a equally apposite prior No- We to the case at hand. have contracted silicosis permitting can see clear no for vember it would be sound reason legislation escape liability the Government to simply here that the federal afforded alleged negligence remedy. its Urie because delusive past and, prac- mo- such as to mean at some remain undiscovered that tically time, speaking, undiscoverable, ment in unknown and inherent- many years retrospect, ly be- unknowable even thereafter. We do knowledge Congress charged lieve Urie was with “intended such disintegration tragic sequences ignor- the slow and to attach to blameless lungs; his view Urie’s ance.” under this failure to whose ed on his consciousness would consti- tion at cable statute consequences can be tute waiver lative norance. quences to [******] disability. do not symptoms had not plan diagnose Nor ultimate attach think the humane of limitations a intended such his do right within the to blameless day we think those reconciled yet compensa- discovery obtrud- disease conse- appli- legis- ig- came known of the therefore, timely. we hold that earlier than 1959 and sions further cause There opinion. prior pregnant remanded judgment proceedings to the his plaintiff's alleged negligent contention wife in 1959. This is reversed and the knew could have District claim accrued no conformity his here or the wife be- being so, transfu- with was, purposes the traditional of statutes JOSEPH HUTCHESON, C. Circuit limitations, conventionally Judge (concurring specially). require the assertion of claims with- specified period For stated, time after reasons hereafter legal rights. I concur in the notice of the result reached invasion the ma- jority reached, and in before us is the conclusions The record clear May Urie work became too ill to when a tort claim diagnosis of 1940 and that his States under accomplished 28 U.S.C. by condition was following determined sug- weeks. There is no and that under federal gestion plaintiff’s brought law the that Urie should have known with- 2401(b),1 in the time allowed he had silicosis at earlier date.” *8 169-170, I cannot in 337 at 69 concur U.S. at of S.Ct. characterization statutory year period 1024-1025. two agree with Fourth in- accrues Circuit’s the Gov terpretation expressed as ernment the claimant or the Urie Young in Court’s exercise of recent decision reasonable Co., Cir., v. Clinchfield Railroad 4 288 the acts consti 499, tuting page malpractice. F.2d 503: I would unquestionably cite the case of “The Urie case dem- Federal Reserve Bank Co., [Supreme] of Atlanta v. Atlanta onstrates view Trust 91 F. Court’s injury 283, page 286, (5th 2d when the A.L.R. nature is such 117 1160 1937) it that it does not Cir. where is manifest itself immediate- stated: ly, the determination of when the cause question is raised as to “When the depend of action accrued does not by action is barred a stat- whether injury when the was inflicted. To the limitations, the true test to de- ute of contrary, only action cause of the cause of action accrued termine when when the has reason to know he when the ‘to ascertain the injured.” has been maintained his ac- first have tiff could States, supra. Bizer See also v. United (quoting to a result’.” tion successful Murray County, Mobley 1. In addition to 178 Ga. the cases cited ma v. jority support 680). rule that a 173 S.E. 242 begun 2401(b) of stat- or of and that be Section must a claim which such generally is threefold: limita- utes of limitation barred as a “statute
forever
recog-
First,
2401(b) is
when Section
tions.”
is,
nized for what
it
beyond question that
established
respect
and
with
decisions
statutes
2401(b)
limita
is not
Section
bearing or
them
are seen
be without
legal
tions,
definition
within the
problem;
relevance to
choice of
States,
term,
F.2d
244
v. United
Simon
Second, recognition
na-
of the essential
(5th
1957); Compagnie Gen
Cir.,
703
ture of
ating
statute cre-
aas
States,
Transatlantique
United
v.
erale
jursidictional
federal
condition
1931);
(2nd Cir.,
United
F.2d 1053
51
precedent
a tort
maintenance
App.
Davis, 56
rel. Rauch v.
States ex
makes it
the United States
(1925);
but that