Chicago, Rock Island & Pacific Ry. Co. v. United States

• Decision Date: 03 May 1955
• Docket Number: No. 11282.,11282.
• Citation: 220 F.2d 939
• Parties: THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, a Corp., Plaintiff-Appellee, v. THE UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

220 F.2d 939 (1955)

THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, a Corp., Plaintiff-Appellee, v. THE UNITED STATES of America, Defendant-Appellant.

No. 11282.

United States Court of Appeals Seventh Circuit.

May 3, 1955.

Warren E. Burger, Asst. Atty. Gen., Paul A. Sweeney, Richard M. Markus, Attys., U. S. Dept. of Justice, Washington, D. C., John B. Stoddart, Jr., U. S. Atty., Springfield, Ill., for appellant.

Thomas P. Sinnett, Dale Ferguson, Rock Island, Ill., Thomas I. Megan, Chicago, Ill., for appellee.

Before MAJOR, LINDLEY and SWAIM, Circuit Judges.

MAJOR, Circuit Judge.

This action was brought by the plaintiff Railway Company against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., to recover payments made by plaintiff to Joseph Emerick, one of its employees, who was injured through the alleged negligence of an employee of the defendant. Plaintiff characterizes the action as one for indemnity.

Plaintiff's employee Emerick was struck by a mail pouch thrown from a postal car of a passing train, while standing on the railway station platform at East Moline, Illinois, for the purpose of inspecting the wheels of plaintiff's train. As a result of the accident, which occurred on September 24, 1946, Emerick sustained serious injuries. On November 4, 1946, plaintiff notified the defendant to the effect that the injury was the result of the negligence of defendant's employee, requesting that it assume liability. Defendant acknowledged receipt of the notice but denied liability. Because of the injury sustained, Emerick was unable to return to his employment for almost two years. In response to his demand, plaintiff, on June 17, 1949, made settlement of his claim by payment of the amount of $5,382.55, which included only damages for loss of time and an amount which plaintiff had advanced for medical services. The District Court made findings of fact, entered its conclusions of law and judgment in favor of plaintiff, 122 F.Supp. 368, from which defendant appeals.

The government, characterizing the action as one for quasi-contractual indemnity, argues that it has not consented to be sued but, even so, that the payments made by plaintiff to its employee were made voluntarily, without liability on the part of plaintiff, and it is, therefore, not entitled to be indemnified. The further contention is advanced that the action is barred under the limitation provision applicable to claims under the Tort Claims Act. The government makes a refined and technical argument in its attempt to distinguish between the rights of a subrogee, joint tort-feasor and indemnitee to recover under that Act. We need not attempt to follow this discussion because any merit which it might once have possessed is now water over the dam in view of numerous cases which have held adversely to the government's contention. Evidently the government makes the argument for the purpose of attempting to escape the decisions of the Supreme Court in United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, in which it was held that a claim for subrogation was maintainable under the Federal Tort Claims Act, and in United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, in which it was held that a claim by a joint tort-feasor was maintainable under the Act. In the latter case, the court, in response to the government's argument that it had not consented to be sued, after quoting the pertinent provision of the Act, stated, 340 U.S. at page 548, 71 S.Ct. at page 403:

"The words `any claim against the United States * * * on account of personal injury\' (emphasis supplied) are broad words in common usage. They are not words of art. Section 421 lists 12 classes of claims to which the waiver shall not apply, but claims for contribution are not so listed."

It might be added that a claim for indemnification is likewise not listed as one to which the waiver should not apply.

In our view, these two decisions of the Supreme Court would require a holding adverse to the government on its contention that it has not consented to be sued in an action for indemnification growing out of a tort liability. At any rate, there appears to be no logical basis to make a distinction between the right of a joint tort-feasor to recover in part and the right of an indemnitee to recover all.

We need not be too much concerned, however, as to whether the cited cases of the Supreme Court are by analogy controlling here because of the great weight of authority adverse to the government's contention, under facts quite similar to those here. St. Louis-San Francisco Ry. Co. v. United States, 5 Cir., 187 F.2d 925; Terminal R. Ass'n, of St. Louis v. United States, 8 Cir., 182 F.2d 149; United States v. Chicago, R. I. & P. Ry. Co., 10 Cir., 171 F.2d 377. In all these cases it was held or recognized that the plaintiff railroad was entitled to maintain suit against the government to recover money which it had paid an employee for damages sustained as a result of negligence by the government. These cases also are generally to the effect that it is immaterial how the action be labeled.

The government contends that the findings of fact as made by the District Court 122 F.Supp. 369 are such as to preclude recovery, and particularly its finding, "That at said time and place, the plaintiff and its employee, Joseph Emerick, were in the exercise of due care and caution in their behalf." Predicated upon this finding, it is argued that there could have been no recovery by the employee against plaintiff under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. and that any payment made by plaintiff to the employee was voluntarily made and was nothing more than a gratuity. The court also found, however, that the negligence of the government's employee "was the active, direct, proximate and primary cause of the...