United States v. Chicago, RI & P. Ry. Co.

• Decision Date: 17 January 1949
• Docket Number: No. 3701.,3701.
• Citation: 171 F.2d 377
• Parties: UNITED STATES v. CHICAGO, R. I. & P. RY. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

171 F.2d 377 (1948)

UNITED STATES v. CHICAGO, R. I. & P. RY. CO.

No. 3701.

United States Court of Appeals Tenth Circuit.

December 1, 1948.

Rehearing Denied January 17, 1949.

Robert E. Shelton, U. S. Atty., of Oklahoma City, Okl., for appellant.

J. I. Gibson, of Oklahoma City, Okl. (Savage, Gibson & Benefield, of Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Certain railway tracks within Fort Sill, a military reservation in Oklahoma, were owned by the United States, were maintained by the Army, and were used by the Chicago, Rock Island and Pacific Railway Company as a common carrier in the performance of its services within the fort. Ernest Eitel was employed as a brakeman for the company. An engine of the company was moving along one of the tracks in the course of its operational activities. Eitel was riding on the footboard of the engine giving signals to the engineer. A pile of hardened blacktop material was lying immediately adjacent to the north rail of the track. Employees of the United States, acting under the supervision of the post engineer, permitted the material to remain at that place. Eitel's foot was caught between the footboard of the engine and the pile of material and was severly injured. He filed a claim against the railway company for damages for personal injuries. The company settled the claim for $7650, and also paid the employee $214 for medical, hospital, and drug bills. The company as subrogee or indemnitee under Eitel later filed this action against the United States under the Federal Tort Claims Act, 60 Stat. 842, 28 U.S.C.A. § 921 et seq.¹ The United States filed a motion to dismiss the action for failure of the complaint to state a claim on which relief could be granted; the motion was denied; the United States answered; the cause was tried; judgment was rendered for the company; and the United States appealed.

It is argued that the court erred in failing to dismiss the action for the reason that a subrogee or an indemnitee of one who suffered personal injury proximately caused by the wrongful act. or omission of an employee of the United States cannot maintain an action against the United States for the recovery of damages. Of course, the United States is immune from suit of this kind unless it has waived its immunity and consented by statute to be sued. Schillinger v. United States, 155 U.S. 163, 15 S.Ct. 85, 39 L.Ed. 108; United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 75 L.Ed. 598; Klamath and Moadoc Tribes v. United States, 296 U.S. 244, 56 S.Ct. 212, 80 L.Ed. 202; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058.

Section 410(a) of the Federal Tort Claims Act, 28 U.S.C.A. § 931(a),² provides in presently material part that subject to the provisions of the title "the United States district court * * * shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, * * * on account of * * * personal injury * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such * * * injury * * * in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims, to the same claimants, in the same manner, and to the same extent, as a private individual under like circumstances * * *". The Act fails to include language expressly providing in specific terms that a subrogee or an indemnitee of the injured person may maintain a suit under its provisions. But it bears convincing tokens of a primary purpose to provide a comprehensive system of judicial review as a complete substitute for the long existing and unsatisfactory procedure of Congress considering and passing upon a large volume of private bills for the relief of claimants which were regularly introduced and appeared upon the calendars of both branches of the Congress. The Act may not be extended by implication to cases not plainly within its terms, but if Congress had intended to exclude from its scope claims of subrogees or indemnitees it certainly would have used apt and appropriate language to that effect. Bearing in mind the background of the Act, and the legislative purposes intended to be accomplished, it is reasonably clear that under its provisions a subrogee or an indemnitee may maintain a derivative suit against the United States. Employers' Fire Insurance Co. v. United States, 9 Cir., 167 F.2d 655; Old Colony Insurance Co. v. United States, 6 Cir., 168 F.2d 931; Aetna Casualty & Surety Co. v. United States, 2 Cir., 170 F.2d 469; Yorkshire Insurance Co. v. United States, 3 Cir., 171 F.2d 374.

Section 410(a) of the Act waives the immunity of the United States...