Blevins v. Hines

• Citation: 264 F. 1005
• Parties: BLEVINS v. HINES, Director General of Railroads, et al.
• Decision Date: 08 May 1920
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

264 F. 1005

BLEVINS v. HINES, Director General of Railroads, et al.

United States District Court, W.D. Virginia.

May 8, 1920

Werth &amp Werth, of Tazewell, Va., for plaintiff.

Smith &amp Funkhouser and Staples, Cocke & Hazlegrove, all of Roanoke Va., for defendants.

McDOWELL District Judge.

This action was originally instituted in this court on the 26th day of February, 1919, against 'Walker D. Hines, Director General of Railroads, and the Norfolk & Western Railway Company,' for a cause of action arising after the Norfolk & Western Railway had been taken under federal control.

(1) Dismissal as to Norfolk & Western Railway Company.

On motion of the railway company it was 'dropped.' 2 Code Va. 1919, Sec. 6102. I find nothing in the Federal Railway Control Act (40 Stat. 451, 456), or in any order made by authority of the President, which authorizes or contemplates a joint action against the Director General and the carrier for a tort alleged to have been committed by the employes of the Director General. On common-law principles it goes without saying that the carrier is not in the least degree responsible for the injury, has no interest in the controversy, and hence is not properly joined as a defendant. It is true that the plan of section 10 of the Control Act was that actions for causes of action arising under federal control should be brought against the carrier, which was to have been the sole (but nominal) defendant. But this plan was to be effective only if not inconsistent with any order of the President. By proclamation of January 10, 1919 (40 Stat. 1922), Walker D. Hines was by the President appointed Director General of Railroads and given authority 'to issue any and all orders which may in any way be found necessary and expedient * * * as fully * * * as the President is authorized to do. * * * ' By section 8 of the Control Act the President was authorized to 'execute any of the powers herein and heretofore granted him * * * through such agencies as he may determine. * * * ' On January 11, 1919, Hines, Director General, issued General Order 50a, which requires that actions such as the present one 'shall be brought against the Director General of Railroads and not otherwise. ' Clearly the statute authorized this order and the order provides that the Director General shall be the sole defendant; and this plan is so entirely inconsistent with the plan set out in section 10 of the Control Act that the latter is necessarily abrogated.

Because of its bearing on the next topic to be discussed, it should also be said that the intent of General Order 50a is that the defendant shall be the official, and not the individual, who happens to be in office at the time of suit. General Order 50 read: ' * * * Shall be brought against Wm. G. McAdoo, Director General of Railroads, and not otherwise. ' The language of General Order 50a is: ' * * * Shall be brought against the Director General of Railroads, and not otherwise. ' It seems clear that the intent was that actions should be brought only against 'the Director General of Railroads.' However, the insertion of the name of Walker D. Hines in the declaration and process here may be treated as harmless surplusage.

The conclusion to dismiss as to the Norfolk & Western Railway Company seems to be sustained by Rutherford v. Union Pac. R. Co. (D.C.) 254 F. 880; Dahn v. McAdoo (D.C.) 256 F. 549, 550; Haubert v. Baltimore & O.R. Co. (D.C.) 259 F. 361; Nash v. Southern Pac. Co. (D.C.) 260 F. 280.

(2) Federal Jurisdiction.

The cause of action is the alleged negligence of certain employes of the Director General in the operation of a train in August, 1918, resulting in the injury and subsequent death of one who was as is alleged a licensee on the track. The plaintiff is a citizen of Virginia, and the Norfolk & Western Railway Company is a Virginia corporation. Nothing was alleged or proved as to the citizenship of Walker D. Hines, and it remains unknown. Manifestly there is here no federal jurisdiction on the ground of diversity of citizenship; and even if there had been allegation and evidence showing Mr. Hines, the individual, to be a citizen of some state other than Virginia, I would still think his citizenship of no significance, and insufficient to give federal jurisdiction. If I construe General Order 50a correctly, the individual who happens to be the Director General is not the defendant, and is not even to be named in the declaration. The action is not one against a person; it is against an artificial being that has no citizenship. See Bankers' Trust Co. v. Tex. & Pac. Ry., 241 U.S. 295, 306, 36 Sup.Ct. 569, 60 L.Ed. 1010.

Not only was the plan (section 10 of the Control Act) of suing the carrier for torts committed by the employes of the Director General abrogated by General Order 50 (and 50a), but it seems clear from the wording of the Control Act that the scheme of the General Orders referred to was never thought of in drafting the act. The statute was enacted March 21, 1918; General Order 50 was made October 28, 1918. The theory of General Order 50 is a happy and lawyerlike method of abolishing a crude anomaly. The statute relates only to actions by or against carriers; it does not in any way relate to actions by or against the Director General; and, as such actions were not thought of, it is obvious that the statute cannot properly be construed as making provisions as to the jurisdiction of actions by or against the Director General. If the original plan had been left in force, the action here would have been against the Norfolk & Western Railway Company alone; and in such event it may well be that there would have been no federal jurisdiction of the action. But the General Orders, with full statutory authority, totally changed the situation. The carrier is not suable, and it has no interest in or connection with the action. The citizenship of the carrier is of no interest or significance, for that has nothing whatever to do with the jurisdiction of an action against the Director General.

No matter how clear the implication of section 10 that the citizenship of the carrier might control the question of federal jurisdiction of actions by or against a carrier there is in the statute no possibility of any implication of intent in regard to actions by...