B-134137, NOV. 19, 1957

B-134137, NOV. 19, 1957

TO WRAPE AND HERNLY, ATTORNEYS AT LAW:

YOUR LETTER OF SEPTEMBER 13, 1957, REFERS TO THE CLAIM OF YOUR CLIENT, THE COOK TRUCK LINES, INC., 25 EAST VIRGINIA AVENUE, MEMPHIS, TENNESSEE, FOR THE PROCEEDS OF TREASURY CHECK NO. 26,575,696, DATED DECEMBER 9, 1954, FOR $130, DRAWN TO ITS ORDER BY J. F. CANNON, SYMBOL 300, AND PROTESTS OUR SETOFF AGAINST THAT SUM OF THE AMOUNT OF $64.10, REPRESENTING AN INDEBTEDNESS OF YOUR CLIENT TO THE UNITED STATES, AS INDICATED BY OUR CERTIFICATE OF SETTLEMENT DATED AUGUST 27, 1957, CLAIM NO. Z-1834402. YOUR LETTER OF NOVEMBER 7, 1957, MAKES FURTHER INQUIRY IN THE MATTER.

THE $64.10 INDEBTEDNESS SETOFF AGAINST YOUR CLIENT'S CLAIM FOR THE $130 CHECK COVERS THE DAMAGE TO AN ARMY BUS RESULTING FROM A COLLISION ON NOVEMBER 8, 1950, IN MEMPHIS, TENNESSEE, WITH A VEHICLE OWNED BY YOUR CLIENT AND OPERATED BY ONE OF ITS EMPLOYEES, WILLIE B. WARD. YOU SAY THAT TENNESSEE STATE LAW (TITLE 28, CHAPTER 3, SECTION 28-305, TENNESSEE CODE ANNOTATED, VOLUME 5, PAGE 984) IMPOSES A THREE YEAR PERIOD OF LIMITATION ON CLAIMS OF THIS NATURE; THAT THE FEDERAL GOVERNMENT IS BOUND THEREBY; AND THAT SINCE THE GOVERNMENT FAILED TO TAKE COURT ACTION WITHIN THE STATUTORY PERIOD IT IS NOT ENTITLED TO ANY DAMAGES SUSTAINED IN THIS COLLISION. YOU FURTHER DENY LIABILITY ON THE PART OF YOUR CLIENT BY REASON OF THIS ACCIDENT, REGARDLESS OF THE STATUTE OF LIMITATIONS.

WHILE THE TENNESSEE STATUTE CITED IN YOUR LETTER OF SEPTEMBER 13, BARS COURT ACTION FOR PROPERTY TORTS AFTER THREE YEARS FROM THE DATE OF ACCRUAL OF THE CAUSE OF ACTION, IT IS WELL SETTLED THAT THE UNITED STATES, ACTING IN ITS GOVERNMENTAL CAPACITY AND SEEKING TO ENFORCE PUBLIC, SOVEREIGN, OR GOVERNMENTAL RIGHTS, IS NOT BOUND BY STATE STATUTES OF LIMITATIONS. SEE 53 C.J.S. LIMITATIONS OF ACTIONS SEC. 15A (3) AND CASES CITED THEREIN. CANNOT SERIOUSLY BE CONTENDED THAT THE FEDERAL GOVERNMENT, IN ATTEMPTING TO PROTECT PUBLIC PROPERTY BY RECOVERING DAMAGES FOR INJURY THERETO, IS NOT ACTING IN ITS GOVERNMENTAL CAPACITY OR SEEKING TO ENFORCE PUBLIC, SOVEREIGN, OR GOVERNMENTAL RIGHTS. MOREOVER, EVEN IF IT BE ASSUMED, ARGUENDO, THAT THE CITED TENNESSEE STATUTE WOULD APPLY TO THE FEDERAL GOVERNMENT IN THIS INSTANCE, IT IS LIKEWISE WELL ESTABLISHED THAT A STATUTE OF LIMITATIONS OF THAT NATURE BARS ONLY THE REMEDY TO WHICH IT APPLIES AND DOES NOT DISCHARGE THE DEBT OR EXTINGUISH, OR EVEN IMPAIR, THE RIGHT OR CAUSE OF ACTION, EITHER IN LAW OR IN FACT, AND THUS LEAVES AVAILABLE TO THE CREDITOR EVERY OTHER LAWFUL MEANS OF REALIZING ON THE DEBT. SEE 53 C.J.S. LIMITATIONS OF ACTIONS SEC. 6B AND CASES CITED THEREIN. HENCE, THE TENNESSEE STATUTE, EVEN IF APPLICABLE HERE, WOULD NOT EXTINGUISH THE GOVERNMENT'S COMMON-LAW RIGHT OF SETOFF. THEREFORE, THERE IS NO MERIT IN YOUR CONTENTION THAT OUR ACTION IN THIS MATTER IS BARRED BY THE CITED TENNESSEE STATUTE OF LIMITATIONS.

WE ACKNOWLEDGE THAT YOUR CLIENT'S LIABILITY FOR THIS ACCIDENT HAS NEVER BEEN ESTABLISHED THROUGH A COURT OF LAW. HOWEVER, YOUR CLIENT'S ALLEGED LACK OF LIABILITY THEREFOR LIKEWISE HAS NEVER BEEN ESTABLISHED BY A COURT OF LAW. IN THE ABSENCE OF A RULING ON THE MATTER BY A COURT OF COMPETENT JURISDICTION WE RELY UPON THE FACTS PERTAINING TO THE ACCIDENT AS REPORTED TO US TO ESTABLISH LIABILITY. THE RECORD BEFORE US, AMPLY SUPPORTED BY SWORN AFFIDAVITS OF WITNESSES, INDICATES THE FOLLOWING:

THE ARMY VEHICLE, A 1942 INTERNATIONAL BUS (K-5), USA NO. 20571453, WHILE ON OFFICIAL BUSINESS (TRANSPORTING SELECTIVE SERVICE REGISTRANTS TO THE JOHN GASTON HOSPITAL FOR PRE-INDUCTION PROCESSING), WAS PROCEEDING EAST ON JEFFERSON AVENUE IN MEMPHIS, TENNESSEE, AT ABOUT 3:00 P.M., ON NOVEMBER 8, 1950. AFTER HAVING STOPPED FOR A RED LIGHT AT THE INTERSECTION OF LAUDERDALE STREET, THE ARMY VEHICLE PROCEEDED THROUGH THE INTERSECTION ON THE GREEN LIGHT AT A SPEED OF ABOUT 10 MILES PER HOUR. A 1949 FORD VAN, TENNESSEE REGISTRATION NO. 2-P/2 5789, OWNED BY YOUR CLIENT, COOK TRUCK LINES, INC., AND OPERATED BY YOUR CLIENT'S EMPLOYEE, WILLIE B. WARD, WAS PROCEEDING NORTH ON LAUDERDALE STREET AND, WHILE ATTEMPTING TO MAKE A RIGHT TURN INTO JEFFERSON AVENUE AGAINST THE RED LIGHT, COLLIDED WITH THE ARMY VEHICLE, WHICH AS STATED ABOVE, WAS PROCEEDING THROUGH THE INTERSECTION ON THE GREEN LIGHT AT A LOW SPEED. THE LEFT FRONT FENDER OF YOUR CLIENT'S TRUCK STRUCK THE RIGHT FRONT FENDER AND THE LOWER HALF OF THE RIGHT FRONT FOLDING DOOR OF THE ARMY VEHICLE, CAUSING DAMAGE TO THE EXTENT OF $64.10. IT IS EVIDENT FROM THE ABOVE FACTS THAT THE ACCIDENT AND THE RESULTING DAMAGES TO THE ARMY VEHICLE WERE CAUSED BY THE NEGLIGENCE OF YOUR CLIENT'S EMPLOYEE IN FAILING TO YIELD TO THE ARMY VEHICLE THE RIGHT OF WAY TO WHICH IT WAS ENTITLED BY REASON OF THE FACT THAT IT (THE ARMY VEHICLE) HAD ENTERED, AND WAS PROCEEDING THROUGH, THE INTERSECTION ON A GREEN LIGHT. SINCE YOUR CLIENT, ITS INSURER, AND WILLIE B. WARD HAVE FAILED TO PAY THIS DEBT IN RESPONSE TO OUR SEVERAL DEMANDS FOR PAYMENT, WE WOULD HAVE BEEN DERELICT IN THE PERFORMANCE OF OUR DUTY TO THE UNITED STATES HAD WE FAILED TO COLLECT THIS INDEBTEDNESS THROUGH THE EXERCISE OF THE RIGHT OF SETOFF WHEN THE OPPORTUNITY AROSE.

HENCE, OUR SETTLEMENT OF AUGUST 27, 1957, SETTING OFF THE SUM OF $64.10 IN SATISFACTION OF YOUR ..END :