Gableman v. Peoria, D. & E. Ry. Co.

• Decision Date: 21 October 1897
• Docket Number: 414.
• Citation: 82 F. 790
• Parties: GABLEMAN V. PEORIA, D. & E. RY. CO. et al.
• Court: United States Circuit Court, District of Indiana

82 F. 790

GABLEMAN V. PEORIA, D. & E. RY. CO. et al.

No. 414.

United States Circuit Court, D. Indiana.

October, 21, 1897

Cullop & Kessenger, for plaintiff.

Gilchrist & De Bruler and J. E. Williamson, for defendants.

BAKER District Judge.

This is an action by Louis J. Gableman, Sr., to recover damages for loss of the services of his infant son, in consequence of injuries received by him through the alleged negligence of the Peoria, Decatur & Evansville Railway Company, Edward O Hopkins, receiver of said railway company, and George Colvin an engineer in the employ of the receiver. The injury occurred while the railway was in the exclusive control and management of the receiver. The railway company is improperly joined as a party defendant. The complaint states no cause of action against it. It is not liable for the torts of the receiver or his employees. High, Rec. Sec. 396; Railroad Co. v. Hoechner, 14 C.C.A. 469, 67 F. 456, and cases cited.

The injury is alleged to have been occasioned by the negligence of a watchman of the receiver at a street crossing, and by that of the engineer George Colvin, who is charged with negligently running an engine under his control against and over the plaintiff's infant son. The receiver filed his petition and bond in the state court, asking for the removal of the cause into this court. The petition sought the removal on the ground that the action against the receiver was one arising under the constitution and laws of the United States. It is made to appear by the averments of the complaint that the receiver was appointed as such by the decree of the circuit court of the United States for the Southern district of Illinois, and judgment is asked against him as such receiver for the alleged wrongful acts of her servants. The plaintiff now moves to remand. His motion must be denied. It is settled that an action against a receiver, as sole defendant, for a tort committed by him or his employees in the performance of the duties of his office, arises under the constitution and laws of the United States, and that he has the right to remove such cause of action from a state court into a court of the United States if the amount in controversy, exclusive of interest and costs, exceeds the sum or value of $2,000. This is established by the case of Railroad Co. v. Cox, 145 U.S. 593, 603, 12 Sup.Ct 905, 908. The ground of this ruling is thus stated by the chief justice, who :

'As jurisdiction without leave is maintainable through the act of congress, and as the receivers became such by reason of, and derived their authority from, and operated the road in obedience to, the orders of the circuit court in the exercise of its judicial powers, we hold that jurisdiction existed because the suit was one arising under the constitution and laws of the United States; and this is in harmony with previous decisions. Buck v. Colbath, 3 Wall. 334; Feibelman v. Packard, 109 U.S. 421, 3 Sup.Ct. 289; Bock v. Perkins, 139 U.S. 628, 11 Sup.Ct. 677.'

See also, Tennessee v. Union & Planters' Bank, 152 U.S. 454, on page 463, 14 Sup.Ct. 654.

The cases cited and relied on by counsel for the plaintiff as establishing a contrary doctrine do not support his contention. The case of Chappell v. Waterworth, 155 U.S. 102, 15 Sup.Ct. 34, holds that under the acts of March 3, 1887 (chapter 373), and ...