Chamberlain v. New York, L.E. & W.R. Co.

• Decision Date: 12 November 1895
• Docket Number: 5,436.
• Citation: 71 F. 636
• Parties: CHAMBERLAIN v. NEW YORK, L.E. & W.R. CO. et al.
• Court: U.S. District Court — Northern District of Ohio

71 F. 636

CHAMBERLAIN v. NEW YORK, L.E. & W.R. CO. et al.

No. 5,436.

United States Circuit Court, N.D. Ohio, Eastern Division.

November 12, 1895

O. S Rockwell, M. A. Norris, and J. T. Siddall, for plaintiff.

M Stuart, for defendants.

RICKS District Judge.

This is a suit brought by the plaintiff against the defendants for an injury sustained by her through the alleged negligence of the agents and employes of J. G. McCullough and E. B. Thomas, as receivers of the New York, Lake Erie & Western Railroad Company. The petition avers that the defendant the New York Pennsylvania & Ohio Railroad Company was and is the owner of a line of railroad extending from the east line of the state of Ohio to the city of Dayton, in said state, and passing through the township of Franklin, in the county of Portage and state of Ohio. Prior to the grievances set forth in the petition, and subsequent to April 13, 1883, the said New York, Pennsylvania & Ohio Railroad Company duly leased the whole of said line of railroad to the said New York, Lake Erie & Western Railroad Company, and put it into possession thereof, and the said the New York, Lake Erie & Western Railroad Company has ever since operated and managed said railroad, by propelling, by steam, locomotives and cars thereon, and over and along its lines. The suit was originally instituted in the court of common pleas of Portage county. Upon application of the receivers, made in due time it was duly removed to this court. The petition for removal avers that said receivers are nonresidents of the state of Ohio; that the New York, Lake Erie & Western Railroad Company was organized under the laws of New York, and is a citizen thereof; that the New York, Pennsylvania & Ohio Railroad Company is a corporation organized under the laws of the state of Ohio, and a citizen thereof and of this judicial district. The petition further avers that the sole controversy in this case is between the plaintiff and the receivers of the said New York, Lake Erie & Western Railroad Company; that the latter-named company and the New York, Pennsylvania & Ohio Railroad company are merely nominal parties; and that they were fraudulently joined as defendants with the receivers for the purpose of defeating the jurisdiction of the United States court, and preventing the receivers from removing this controversy into said court. The case was accordingly removed. The plaintiff filed an answer denying that the sole controversy in the suit is between the plaintiff and the receivers; denying that the New York, Pennsylvania & Ohio Railroad Company and the New York, Lake Erie & Western Railroad Company are merely nominal parties; and denies that they were made defendants for the purpose of defeating the jurisdiction of this court, or for the purpose of defeating the removal of the case to this court by the receivers. The answer further alleges that there is a right of action against the defendants the New York, Pennsylvania & Ohio Railroad Company and the New York, Lake Erie & Western Railroad Company, in behalf of the plaintiff, and that there is a controversy between them which can be settled only in this proceeding. Thereupon, for the reasons stated, the plaintiff moves to remand the case to the court of common pleas of Portage county.

It is conceded, for the purposes of this motion, that the New York Pennsylvania & Ohio Railroad Company is a citizen of the state of Ohio and of this judicial district; that, long before this cause of action accrued to the plaintiff, it leased its line of road to the New York, Lake Erie & Western Railroad Company, which latter corporation has since then completely controlled, operated, and managed said line of railroad; that the New York, Pennsylvania & Ohio Railroad Company has in no wise taken any part in the operation of its said road so leased as aforesaid, and had nothing whatever to do with the management thereof. The further fact is established that the New York, Lake Erie & Western Railroad Company was placed in the hands of the receivers, John G. McCullough and E. B. Thomas, appointed by the circuit court of the United States for the Southern district of New York; that, by ancillary proceedings instituted in this court, the receivership was extended to the lines of railroad and all property within this jurisdiction. It is further established that, at the time of the injury complained of in the plaintiff's petition, the receivers were in the sole management and control of the New York, Lake Erie & Western Railroad Company, the lessee as aforesaid. The statutes of Ohio make a lessor railroad liable for the acts, injuries, and wrongs inflicted by the officers of the lessee road. Under this statute, the plaintiff claims that she has a just cause of action as well against the New York, Pennsylvania & Ohio Railroad Company as against the lessee road, the New York, Lake Erie & Western. But, conceding this liability under the Ohio statute, the further question presents itself whether either the lessor or the lessee road can be sued for wrongs and injuries done by the receivers, who have the sole and exclusive control and management of the property of both roads. I think the rule is well settled that where a court of proper...