The opinion of the court was delivered by: Juergens, District Judge.
Mary Ann Morton, a minor, instituted this suit by her mother
and next friend.
The complaint alleges that jurisdiction is based upon the
Federal Tort Claims Act, Section 2671 and 2680, Section 1346(b),
Title 28 U.S.C.A.; that the plaintiff was injured on the 5th day
of June, 1957, through the negligence and carelessness of agents
of the defendant.
The claim asserted arises out of alleged negligent acts of
Government agents and servants, employees of the United States
Post Office. As appears in the complaint, the suit was commenced
on December 18, 1959, and seeks to recover for injuries received
on the 5th day of June, 1957.
The defendant, United States of America, has filed its motion
to dismiss the complaint for the reason that the complaint fails
to state a claim upon which relief can be granted.
It is the defendant's contention that compensation for the
injuries is barred by Section 2401(b), Title 28 U.S.C.A. Section
2401(b) provides in pertinent parts as follows:
"(b) A tort claim against the United States shall
be forever barred unless action is begun within two
years after such claim accrues or within one year
after the date of enactment of this amendatory
sentence, whichever is later, * * *"
Subsection (a) of Section 2401, Title 28 U.S.C.A., provides as
"(a) Every civil action commenced against the
United States shall be barred unless the complaint is
filed within six years after the right of action
first accrues. The action of any person under legal
disability or beyond the seas at the time the claim
accrues may be commenced within three years after the
In this cause the plaintiff is a minor and is under a
disability which would seem to permit filing of the complaint at
any time up to and including three years after she had reached
her majority if the disability provisions of subparagraph (a) are
applicable to this cause.
It is clear that the statute of limitations for tort claims is
two years and the action must be brought within the time limit
described or such claim is forever barred. United States v.
Glenn, 9 Cir., 1956, 231 F.2d 884; Lomax v. United States,
D.C.E.D.Pa. 1957, 155 F. Supp. 354.
The complaint shows on its face that the injuries were suffered
and the cause of action accrued more than two years before the
complaint was filed.
In accordance with the above authorities the defendant's motion
to dismiss the complaint for failure to state a cause of action
upon which ...