The opinion of the court was delivered by: WORTENDYKE
In this action under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., the Government moves for dismissal under Rule 12(b)(6) of the Rules of Civil Procedure, 28 U.S.C.A., contending that the complaint fails to state a claim against defendant upon which relief can be granted because barred by the two-year period of limitation set forth in 28 U.S.C.A. § 2401(b). This Court derives jurisdiction of the action from 28 U.S.C.A. § 1346(b).
The action was commenced by the filing of the complaint therein on January 16, 1956, Rule 3, R.Civ.P. Plaintiffs allege four cause of action. The first cause of action is a claim of Anne Morgan for damages for personal injuries and their consequences resulting from the alleged negligent transfusion into her blood stream, on February 10 or February 12, 1953, of blood of an improper or unsuitable type in the course of treatment administered to her by defendant's agent while she was a maternity patient at defendant's Army Hospital at Indiantown Gap, Pennsylvania.
The second cause of action is a claim in behalf of an infant child of Anne Morgan, born June 15, 1955 at Montclair, New Jersey, for damages for the effects upon the health of the child alleged to have resulted from the injuries of which the mother complains in the First Cause of Action.
Defendant contends that the claims of all of the plaintiffs are barred by 28 U.S.C.A. § 2401(b). The cited section reads in full as follows:
' § 2401. Time for commending action against United States
'(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 disability ceases.
'(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, or unless, if it is a claim not exceeding $ 1,000, it is presented in writing to the appropriate Federal agency within two years after such claim accrues or within one year after the date of enactment of this amendatory sentence, whichever is later. If a claim not exceeding $ 1,000 has been presented in writing to the appropriate Federal agency within that period of time, suit thereon shall not be barred until the expiration of a period of six months after either the date of withdrawal of such claim from the agency or the date of mailing notice by the agency of final disposition of the claim. June 25, 1948, c. 646, 62 Stat. 971, amended Apr. 25, 1949, c. 92, § 1, 63 Stat. 62.'
From the 'Historical and Revision Notes' appended to the foregoing section we learn that it is based on Title 28 U.S.C. 1940 ed. §§ 41(20) and 942 which are consolidated thereby, and that present subsection (b) simplifies and restates former section 942.
Former section 41 of Title 28 prescribes the original jurisdiction of the District Courts, and subsection 20 thereof confers jurisdiction of suit against the United States. Insofar as here relevant the subsection reads in part as follows:
'No suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made. The claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively.'
It should be remembered that the foregoing section (41) did not confer jurisdiction of actions upon tort claims against the United States, and the Federal Tort Claims Act was not adopted until 1946. The tolling provisions of former section 41 were, therefore, not in contemplation of actions against the Government upon tort claims. In 1948 jurisdiction in tort actions against the Government was conferred upon the District Court by former section 931(a) now included in section 1346(b) of Title 28. Thus the right and jurisdiction to entertain a suit to recover against the Government for a tort was created by legislation independent of and subsequent to that by which limitations were imposed and tolling thereof was contemplated with respect to other than tort claims against the United States. While a 'civil action commenced against the United States' as the phrase is used in 28 U.S.C.A. § 2401(a) is a classification broad enough to include an action upon 'A tort claim against the United States' as that phrase is used in subdivision (b) of the same section, we must assume that the Congress had some reason for singling out for separate limitation treatment Federal Tort Claim cases from other civil actions against the Government. In construing the Federal Tort Claims Act in Indian Towing Co. v. United States, 1955, 350 U.S. 61, at page 69, 76 S. Ct. 122, at page 126, Mr. Justice Frankfurter suggests avoidance of extremes when he says:
'Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.'
The Act itself, 28 U.S.C.A. § 2680, expressly excludes from its application and that of Section 1346(b) thirteen different categories of tort claims which might otherwise be ...