Louisville & Nashville Railroad Company v. Rochelle

• Decision Date: 11 February 1958
• Docket Number: No. 13213.,13213.
• Citation: 252 F.2d 730
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Mrs. Josie S. ROCHELLE, Individually and as Administratrix of the Estate of Giles M. Rochelle, Deceased, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

252 F.2d 730 (1958)

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Mrs. Josie S. ROCHELLE, Individually and as Administratrix of the Estate of Giles M. Rochelle, Deceased, Appellee.

No. 13213.

United States Court of Appeals Sixth Circuit.

February 11, 1958.

COPYRIGHT MATERIAL OMITTED

John B. Mack, Memphis, Tenn. (Clarence Clifton, Memphis, on the brief; Clifton & Mack, Memphis, Tenn., of counsel), for appellant.

Thomas R. Prewitt, Memphis, Tenn. (Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Tenn., of counsel), for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This appeal arises out of a railway crossing accident at Green Corner Crossing in Carroll County, Tennessee. Defendant's¹ freight train, traveling 40 to 45 miles per hour, collided with the 1949 Plymouth car of plaintiff's decedent, driving across the track. Decedent, a United States rural mail carrier, was on his regular route at his regular time. Defendant's train was over an hour earlier than usual and it did not follow its practice of whistling for the crossing, as the conductor stated the train did for all crossings. The crew testified that they were keeping the lookout ahead required by statute but they did not see decedent until he was before them on the track. The train ran at least 3,100 feet after the collision. The crossing, which was used by school buses and persons on both sides of the track, was approached by an upgrade on a gravel road which three witnesses described as steep. One stated in effect that it would be practically impossible to get up the incline without going into low gear. The photographs in evidence are not particularly helpful. They indicate some grade and show a very rough road of either heavy gravel or slag.

Liability was asserted under the common law and also under the Tennessee Lookout Statute which reads as follows:

"65-1208. Accidents — Precautions to prevent — Crossing signals — Whistle or bell — Lookout — Lights. — In order to prevent accidents upon railroads, the following precautions shall be observed:

* * * * * *

"(4) Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident."

The jury rendered a general verdict in favor of plaintiff.

A preliminary contention is based upon the court's refusal to sustain defendant's motion to compel the joinder of the United States as coplaintiff in the action upon the ground that it is an assignee of plaintiff under the Federal Employees' Compensation Act, 5 U.S.C. Chapter 15, § 751 et seq., 5 U.S.C.A. § 751 et seq., and hence is the real party in interest. The pertinent portions of the statute read as follows:

"§ 776. Subrogation of United States to employee\'s right of action; assignment by employee; disposition of moneys collected from person liable. If an injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, the commission may require the beneficiary to assign to the United States any right of action he may have to enforce such liability of such other person or any right which he may have to share in any money or other property received in satisfaction of such liability of such other person, or the commission may require said beneficiary to prosecute said action in his own name.

"If the beneficiary shall refuse to make such assignment or to prosecute said action in his own name when required by the commission, he shall not be entitled to any compensation under this chapter.

"The cause of action when assigned to the United States may be prosecuted or compromised by the commission, and if the commission realizes upon such cause of action, it shall apply the money or other property so received in the following manner: After deducting the amount of any compensation already paid to the beneficiary and the expense of such realization or collection, which sum shall be placed to the credit of the employees\' compensation fund, the surplus, if any, shall be paid to the beneficiary and credited upon any future payments of compensation payable to him on account of the same injury.

"§ 777. Adjustment in case of receipt by employee of money or property in satisfaction of liability of third person. If an injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability in some person other than the United States to pay damages therefor, and a beneficiary entitled to compensation from the United States for such injury or death receives, as a result of a suit brought by him or on his behalf, or as a result of a settlement made by him or on his behalf, any money or other property in satisfaction of the liability of such other person, such beneficiary shall, after deducting the costs of suit and a reasonable attorney\'s fee, apply the money or other property so received in the following manner:

"(A) If his compensation has been paid in whole or in part, he shall refund to the United States the amount of compensation which has been paid by the United States and credit any surplus upon future payments of compensation payable to him on account of the same injury. Any amount so refunded to the United States shall be placed to the credit of the employees\' compensation fund.

"(B) If no compensation has been paid to him by the United States, he shall credit the money or other property so received upon any compensation payable to him by the United States on account of the same injury."

5 U.S.C. § 783, 5 U.S.C.A. § 783 of the same Act provides:

"The commission is authorized to make necessary rules and regulations for the enforcement of this chapter, and shall decide all questions arising under this chapter."

The Regulations are embodied in 20 Code of Regulations, Sections 3.1 to 3.6, inclusive. The pertinent regulations are as follows:

"§ 3.1 Prosecution of third party action by beneficiary. If an injury or death for which compensation is payable under said act is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, the Bureau may require the beneficiary to prosecute an action for damages against such third person. When required by the Bureau, such cause of action shall be prosecuted in the name of the injured employee or of his personal representative by attorneys designated or approved by the Bureau.

"§ 3.2 Assignment of third party. If an injury or death for which compensation is payable under said act is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, the beneficiary shall, if required by the Bureau, assign any right of action he may have to the United States. All such assignments shall be in writing and no such cause of action shall vest in the United States unless and until the assignment is accepted by the Bureau.

"§ 3.3 Refusal to assign or prosecute claim when required; effect. Refusal on the part of a beneficiary to assign his right of action to the United States or to prosecute said action in his own name when required by the Bureau shall deprive the employee of all rights to compensation."

This action is prosecuted in the name of decedent's wife and administratrix, plaintiff herein. Defendant contends, however, that an instrument executed by plaintiff on March 8, 1956, constitutes an assignment accepted by the Bureau and that the cause of action has vested in the United States. The instrument reads as follows:

"Agreement to Prosecute Damage Claim

"In accordance with the provisions of Section 26 and 27 of the Federal Employees\' Compensation Act and the request of the Bureau of Employees\' Compensation, I hereby authorize Armstrong McCadden Allen Braden & Goodman, special attorney of the Bureau of Employees\' Compensation to prosecute my damage claim against the party responsible for the injury sustained me Giles M. Rochelle, dec Rural Letter Carrier (husband), on January 9, 1956, on account of which I am claiming compensation under the Federal Employees\' Compensation Act; and I agree not to settle this claim without the written consent of the Bureau of Employees\' Compensation or the aforesaid attorney.

"This agreement is not an assignment, but, in consideration of the payment of compensation to me, I agree to execute an assignment to the United States of any right of action I may have arising out of the aforesaid injury, or any right I may have to share in any money paid in satisfaction of the liability of the party responsible for such injury, at any time such assignment is requested by the Bureau of Employees\' Compensation.

"I further agree that in the event of recovery of damages, the proceeds shall be distributed in accordance with the provisions of Sections 26 and 27 of the Compensation Act; and it is further understood that there may be deducted from the gross amount of the settlement the expenses of prosecution, including the attorney\'s fees approved by the Bureau of Employees\' Compensation, which fees do not exceed a sum equal to 25% of the damages recovered in the event of settlement without suit or a sum equal to 33 1/3% of the damages recovered in the event suit is filed.

"Mrs. Josie S. Rochelle"

Under 5 U.S.C. § 751 et seq., 5 U.S.C.A. § 751 et seq., the rights of the claimant are governed exclusively by the statutory provisions and the Regulations promulgated thereunder. United States v. Klein, 8 Cir., 153 F.2d 55, 59.

While the statute gives considerable control to the Bureau of Federal Employees' Compensation, this control is not a substitute, where joinder of the United...