whether equity of the railroad should be worked out by subrogation or by way of exoneration was a matter resting in the sound discretion of district judge
How later courts described this case
- whether equity of the railroad should be worked out by subrogation or by way of exoneration was a matter resting in the sound discretion of district judge
Written by the judges who cited it.
The opinion
TIMMERMAN, District Judge
(dissenting) .
I dissent and state my reasons therefor as follows: The fallacy in Judge Parker’s opinion lies in the assumption that the railroad owed the Board an affirmative duty to take action to enforce the Board’s lien for the Board. In his statement of the facts, Judge Parker states:
“* * * an(j notice was duly given the railroad of the Board’s claim to reimbursement under the act and of the duty of the railroad to withhold payment in protection of such claim.” (Emphasis added.)
The statute in question, quoted by Judge Parker, does not impose such a duty, and no such duty existed at common law. In this connection, it is important to bear in mind that the railroad is not charged with having negligently or intentionally destroyed the Board’s lien. It is charged with having failed to take affirmative action on the Board’s behalf to enforce the Board’s lien.
It is amazing how little effort the Board exerted in its own behalf to protect its own interests. It wrote the railroad a letter in 1948 and another in 1951. It did nothing else. In its 1948 letter, its indifference was displayed in a remarkable way. It said:
“If you want to know before making a payment or a settlement, how much has been paid for sickness benefits, such information will be furnished.”
How generous of the Board! How kind it was to offer to supply such information “If you want to know * * * ” |
In response to its 1951 letter, the Board was informed by the railroad that Miss Mintz’s case had been tried, had resulted in a verdict in favor of Miss Mintz, and was being appealed. Still, the Board took no further action on its own behalf but was content to delegate its responsibility to the railroad to act for it. A reversal and a new trial followed, the new trial resulting in a verdict in favor of Miss Mintz. A second appeal was taken, and the judgment was affirmed. Thereafter, the railroad paid the amount of the judgment to the clerk *142 of the State Court, and as an afterthought, sent a telegram to the Board informing it of such action. At this point, some official of the Board woke up to what was gping on and telephoned the clerk of the State Court, informing him of the Board’s lien and requesting him to withhold payment of the judgment until the Board had time to protect its interests. The clerk did not feel at liberty to comply with this request, however, and paid the entire amount over to Miss Mintz’s attorneys.
But the point that needs to be emphasized is that no matter how considerate the railroad was to the Board, it was all gratuitous, because the railroad was not required by the statute to look after the Board’s affairs.
The result reached by a majority of this Court can have serious consequences. A railroad is not only shackled with the Board’s job but it is made an involuntary judge of the merits of claims asserted by the Board. If it decides that a claim asserted by the Board has merit and pays the claim out of funds due an employee, it may later turn out that the Board’s claim was invalid1, and the railroad will have to pay twice. On the other hand, if a railroad decides that a claim asserted by the board is lacking in merit and pays the entire fund to the employee, it may happen that the Board’s claim was a valid one, and the railroad will have to pay twice. The only way that a railroad can protect itself is to bring an inter-pleader suit to settle the question. In any event, the railroad’s predicament is not a pleasant one.
How much more orderly it would be for the Board to look after its own affairs! If it could not obtain a written assignment from the employee, it could intervene in an action in which it claimed an interest. Its rights would be protected by the Court, and the railroad would not be confronted with the possibility of multiple liability.
■ The decision which this Court is rendering cannot be justified by the statute as Congress enacted it. Something which is not there and which Congress did not intend to be there must be read into it. When that is done, the Court, makes itself a legislative body and usurps power that the people denied it in the. Constitution.
I do not agree that United States v. Eiland, 4 Cir., 223 F.2d 118 , is in point. In that case, the Court was dealing with the effect of a levy, authorized by law, to satisfy a statutory lien covering the very property levied on. In the instant case, we have a statutory lien but no authorized levy. It is assumed in the majority opinion that notice given of the existence of a lien on property is the equivalent to a levy to satisfy the lien thereon. There is nothing in the statute to warrant such an assumption; nor is there any analogy between notice of a lien and a garnishment which in legal effect is no more than a warning to a person holding another’s property not to deliver it to the other but to account for it in court. I do not agree either that United States v. Luquire Funeral Chapel, 5 Cir., 199 F.2d 429 , and United States v. Hall, D.C., 116 F.Supp. 47 , are in point, for in each of these cases, the defendant had compromised and settled the employee’s claim thereby defeating the Board’s lien.
Even if I agreed with the other members of this Court that “When the railroad paid in full the judgment obtained by Miss Mintz without taking steps to protect the Board’s claim of which it had notice, it became liable, * * * ” it would follow as a matter of logic' that I could not also agree with their second view that the government’s appeal is “entirely without substance.”