790
82 FEDERAL REPORTER.
of the accident, and 'prior thereto, the defendant's station agent at Madison notified him. that two other loaded coal cars had arrived at the station, and would be set in on the side track in front of the coal shed bytbe time the two loaded coal cars already at the coal shed were unloaded. The station agent testified, on the other hand, that he not only notified Montague that two other cars had arrived, but informed him at the same time that the two other cars in question were being switched by the train crew, and would be at the coal shed "shortly." Weare not able to decide that such discrepancy in the statements of the two witnesses created a conflict of evideuce which rendered it necessary to submit the case to the jury, for, if we accept the evidence of the witness Montague as true, we think that the information which was given to him by the station agent should have made him more watchful of the operations of the switching crew, and led him to take greater precautions for his own safety and for the of those who were assisting him in moving the coal cars. He was aware that all the switching at that statiml was done by the engine and crew of the freight train prior to its departure, that the train was scheduled to leave at 8 a. m. sharp, and that the two cars referred to by the station agent might, for these reasons, be shunted onto. the side track at any moment. He does not claim to have been given any assurance that the trainmen would wait untiUhe coal cars were unloaded before shunting the two other cars down the side track. Neither does be claim that he advised the station agent that it would be .J.ecessary to uncouple the two stationary cars, and move them oy hand intI') position for unloading by going onto the track between the cars. Ih any aspect, therefore, in which the case may viewed, we think that the evidence did not disclose 'facts which would have warranted an inference of culpable negligence on die part of the employes of the defendant company. It is manifest, we think, that the death of the deceased was either occasioned by an accident for which the defendant is not legally responsible, or that it must be attributed, to some extent at least, to a want of ordinary prudence on the part of the deceased and his associates. The judgment of the circuit court is accordingly affirmed.
GABLEMAN v. PEORIA. D. & E. RY. CO. et al. (CirCUit Court, D. Indiana. October 21, 1897.) No.4i4. 1. ACTION FOR TORT OF EMPLOYE-PAR1'IEl< DEFENDANT-RECEIVER.
A railroad company Is not a proper party defendant to an action for Injuries caused by negligence of employes while the road is in the hands of a receiver. . , A cause of action growing out of the negligence of a servant while engaged in his business is not a joint cause of action in tort against the master and sen'ant.
2.
MASTER AND SERVANT-TOR'!' OF SERVA'NT-JOINT CAUSE OF ACTION.
S. l{EMOVAL OF CAUSEs-RIGHT OF RECEIVER-EFFECT OF JOINDER.
.It cause of action against a receiver appointed by a federal court, and one of 'his for iniuries by tbe negligence of such p.m-
GABLEMAN V. PEORIA, D.&:E.RY. CO.
791
1 .'. is onE! arising undE!r thElconstltutfOl). and laws ot the United States; - " !lJld" wherE! the am'ount in controversy exceeds $2,000, the receiver may remove thE! case, whether such cause of action be joint or several.
,Cullop & Kessenger, for plaintiff,. Gilchrist & De Bruler and J. E. Williamson, for defendants. District Judge. This acti<m by Louis J. Sl'o, to recover damages for loss of'the services of his infant sonl in consequence of inip.ries received by him through the alleged negli. gence of the Peoria, Decatur & Evansville Railway Company, Edward O. lIopkins, 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 thereceiver. The railway company is improperly joined as a party defenpant. The complaillt s!&tt;S, no cause' of action against it. It is, not liable for the' torts of the receiver or his employes. High, Rec. § 396; ,Railroad Co. v. HQechner, 14 O. O. A. 469, 67 Fed. 456, and ,cases cited.·'" The injury is alleged to have been by the negligence of a w3;tchman of the receiver at a street crossiIig, and by that of the George Colvin" who is charged with negligently running an engine under his control arid over the plaintiff's, infant SPJl. filed his petition and bond in the state court, asking for the removal O'f the cause,into tWs court. ,The petition there· moval oil the, ground that' the against. the: receiver, waS, one arising under the constitution and laws of the United Stll"tes. It is made to appear by ,the averments 9f, tIle complaint that the receiver of the. circuit court of the United was appointed, as such by the · States for the' Southern district of IlliIlOis, and judgment is asked receiver {PI' the alleged wrongful acts oiills servants. "Th¢ plaiJ;ltiff now moves, to. remand. His motion must be denied.' Js fill. a,*on a, as sole defendant, for ,'h, 'tort by him Or W-s eInplQyes io of the duties of his office, arise!;! under, the cOnstitution aI;l.d laws of the United States,'and that he has'the right to,remov;esuch caliaeof action from a state court into acou.rt of the Uniteq if the'amount in controversy, exclusive of interest. and costs, the sumOI' value of $2,000. This is establiShed by the case, of Ral1road Qo. v. Cox. 145, U. S. 1593,603, 12 Sup. Ot.905, 908.' ground" of this ruling is thus stated by the chief justice, who' delivered the opinion of the cou.rt:
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"As jurisdiction without leave is maintainable through the act of congress, and as the receivers became such by reason of, and their authority from, and operated the road [in obedience to, tpe ordel;s of theeil'cuitcourt in the exercise of 'its judicial powers, we hotd that Jurisdiction existed because the suit was otteaxising under 'the .constitution a'Ild.laws of thE! United States; decisions. Buck v. 3 )Vall. 334; and t11is is in harmony with v.Perklns, ,139 U. Feibelman v.Packard, 109 U. S. 421, 3 Sup. Ct.
S.
677."
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See, also,Teonessee v. Un.ion.'&'PlaIiters' Bank, 00 page 463, 14 Sup. Ct. 654. " " ""',,' The cited and plllihtiff as, estab: lishing a contrary doctrine "do no:! his contention.,'" The case
792
82
FEDERAL REPORTER.
of Chappelr v. Waterworth, S. 102; 15 Sup. Ct. 34, holds that l1Dtler''tli'e of, March 1887 (chapter 373), and 13, 1888 (chapter 8(6), a caSe not depending on the citizenship of the parties, nor otherwise specially provided for,cannot be removed from a state court into:a:circuit court of the, United States, as one arising undel' the constitution and laws of the Ullited States, unless ,that appears Of his' own case; and, if it does not so apby the plaintitrs pear', the want cannOt by any statement in the petition for removal or iit the subsequen'tpleadings.. The case of Railway Co. v. Ziegler, 167 S. 65,'17 Sup. Ct. 128,tecognizes the,same doctrine; britholds that the case made by the pl'aintiff"s 'own showing was one an act 'of congress; and that the circuit court of the arising United States clearly had furisdictioiJ.. Other cases' cited by counsd for the plainti:ft are equally inapplicable. " . ' is one arising The case here mttde by the plaintiff's 0vvn under the constitution and .laws of the United States. As the present t-appointed by a circuit courtofthe United suit is one against a receiv itwas, in a state cop.rt, without States, and could only be leave; by virtue'br 'the acts of congress 3, 1887 (chapter 373), and August 13, 1888 (chapter 866), it'is clearly one arising under the constitutWn and laws of the United States" and hence is removable unless 'the of George COlvin as a'parly defendant,precludes the complaint does not receiver frodlasserting his right of removal. state a joint cause of action in tort 'against the the engineer. The' Habilit;r pf the' engineerl1rises from his 6wn wrongful act inrunnirig+his, engine against 'and over the plainti'fI"s son, while that of'thetecefver'grows out of'tl1e master's liability for negligent or about the master's business. tortious a'dsM his Warax t',JImilw:;ty C<l.,72'Fed: 637. But, if thecallse of action the'receiver and his were joint, itwpuldrnake nodifiq the'rece'iver's right of removal. NQ liability can be asfor ,misfeasaIice or nonfeasance in performoffice,' except under 'and by 'Virtue of the constituing the tion and Ia!wY"of tneUnited Stlltes..The joint liability asserted in the an4 his engineer is' one arising, from hence is laws of the Umted States, one' arlsmg under'V;!.e,. constitutton: under .andjJ;l ;irtliii'of which cteated and exists. Landers v; 73 Ffd'.' 311.. ' The, motion to' remand' is- overruled. , "; 111'.' li:" ' .
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SE'EBASs'\H at,J)'e1l M'UTUA',B ltESERVE FUND LIFElASS'N. v; :1,·;; i" ..(CU'cult Court, D. New October 25, 1. PL1llADINo'':-A,t'l'i&:k'oll OF OOPY,· . 'In an ll.c'tibnUIi'on' a comrn'ct 'of Insurance, a copy of ,thepoJ,lcy on \VhJ,ch the suIt is founded, annexed to the declaration and' referred to therein, ,therebY,bec.omea a part of .the section 123.. Qt the New Jersey practtc'e .act. -;' .. . " , ..' ., ., 2.SAME-AsSIGNMlI:NT Oll' BREACH.
An ofa In ilie' ""oms of· the contract, when no questio:n Of Ill.wIs 1nTolved, lSi 'good ; .,:
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