Haubert v. Baltimore & O.R. Co.

• Decision Date: 03 September 1919
• Docket Number: 10053.
• Citation: Haubert v. Baltimore & O.R. Co., 259 F. 361 (N.D. Ohio 1919)
• Parties: HAUBERT v. BALTIMORE & O.R. CO. et al.
• Court: U.S. District Court — Northern District of Ohio

259 F. 361

HAUBERT v. BALTIMORE & O.R. CO. et al.

No. 10053.

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

September 3, 1919

Amerman & Mills, of Canton, Ohio, for plaintiff.

J. M Lessick and Charles Lessick, both of Cleveland, Ohio, for defendant.

WESTENHAVER District Judge.

Plaintiff's cause of action is based on the alleged wrongful death of Rose Haubert, which occurred during the period of federal control, and is alleged to have been due to the negligent operation of a railway train of the Baltimore & Ohio Railroad Company, operated by the Director General of Railroads under said federal control. The question presented and argued is whether or not the liability for this cause of action can be asserted against the Baltimore & Ohio Railroad Company, and prosecuted to judgment against it, rather than against the Director General of Railroads. Disregarding all question of form, I deem it proper to express a final opinion upon this question.

It is now conclusively settled that complete possession and control of all such railway lines as are under federal control, and not a divided possession and control, have been transferred to the United States by virtue of the act of August 29, 1916 (Comp. Stat. Sec. 1974a), the proclamation of the President of December 26, 1917 (Comp. Stat. 1918, Sec. 1974a), the act of March 21, 1918 (Comp. Stat. 1918, Sec. 3115 3/4a, and following sections), and the President's proclamation of March 29, 1918. It seems equally clear that all liability for all actions of the Director General of Railroads during federal control is imposed upon the United States, and does not remain upon the railroad company, which has thus been entirely ousted from the possession, control, and operation of its property.

All moneys and other property derived from the operation of railway lines under federal control are the property of the United States. A revolving fund of $500,000,000 is appropriated, which, together with any funds available from operating income, are to be used to pay the expenses and liabilities of the railway lines while under federal control. All obligations and liabilities incurred or created during federal control are to be paid therefrom by the Director General, and not by the railway company, excepting only such taxes as are excluded by section 1 of the act of March 21 1918, and certain other previously existing obligations of the railway company not necessary to be mentioned specifically. Section 1 also authorizes the making of agreements with the railway companies whereby they are insured compensation for the use of their property during federal control, not exceeding a sum equivalent as nearly as possible to the average annual railway operating income for the three years ending June 30, 1917. Provision is also made for ascertaining and adjusting this compensation during the period, or in the event such agreements are not made.

Manifestly it seems to me that in view of these conditions no liability exists against the railroad company itself for a personal injury due to operation under federal control, and that no judgment can be rendered therefor which will become a lien upon the corpus of its property or payment compelled therefrom. If this were done, the result would be that one person's property would be taken without his consent and without compensation to pay the debt of another. Liabilities thus arising during federal control, it must be conceded, are in substance debts of the United States notwithstanding, for purposes of administration, the control and operation of the railroads have been vested in an official called the Director General of Railroads. An action against the Director General, based upon any contract or act of his, it may be admitted, is, in effect, a suit against the United States. See opinion of Rugg, C.J., in Public Service Commission v. New England Telegraph & Telephone Co., 232 Mass. 465, 122 N.E. 567, affirmed United States Supreme Court June 2, 1919, in MacLeod et al. v. New England Telephone & Telegraph Co., 250 U.S. 195, 39...