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VAN DORN v. HUFFMAN

August 26, 1963

SHARON VAN DORN, A MINOR, BY EDWARD VAN DORN, HER FATHER AND NEXT FRIEND, AND EDWARD VAN DORN, PLAINTIFF,
v.
THOMAS HUFFMAN, ADMINISTRATOR OF THE ESTATE OF BOBBIE LOU HUFFMAN, AND CHARLES RAKERS, DEFENDANTS.



The opinion of the court was delivered by: Juergens, Judge.

Sharon Van Dorn, by her Father and next friend Edward Van Dorn, and Edward Van Dorn (hereinafter referred to as "plaintiffs") filed their complaint in the Circuit Court of Clinton County, Illinois.

Count I is by plaintiff Sharon Van Dorn and is against defendant Thomas Huffman, Administrator of the Estate of Bobbie Lou Huffman, and alleges that plaintiff was a guest passenger in a vehicle being operated by the decedent, Bobbie Lou Huffman, in a generally easterly direction along and upon Route 161, approximately three-fourths of a mile west of Shattuc Road, both being public highways in the County of Clinton, State of Illinois; that the decedent caused the vehicle she was operating to go into the west-bound lane of traffic and collide with a vehicle being driven by defendant Charles Rakers, causing injuries to plaintiff for which she prays damages.

Count II is also by the minor plaintiff, Sharon Van Dorn, and is against defendant Charles Rakers. This count alleges that plaintiff was a passenger in a vehicle being operated by decedent, Bobbie Lou Huffman, in a generally easterly direction along and upon Route 161, approximately three-fourths mile west of Shattuc Road, both being public highways in the County of Clinton, State of Illinois; that defendant Charles Rakers was operating a two and a half ton truck in a generally westerly direction upon Route 161 when he collided with the vehicle in which plaintiff was a passenger; that defendant Rakers was negligent in that he operated his vehicle at an excessive rate of speed, that he negligently failed to keep a proper lookout ahead and laterally and by so doing he could have avoided the ensuing collision, that he negligently failed to swerve his vehicle when he could have done so with safety to himself and others on the road and when by so swerving he could have avoided said collision, that he negligently failed to keep his vehicle under control.

Count I charges wilful and wanton misconduct against the deceased, Bobbie Lou Huffman, and Count II charges negligence against defendant Rakers.

Defendant Rakers filed his petition for removal on the grounds that the plaintiff seeks judgment against the petitioner, Charles Rakers, for damages resulting from the alleged negligent operation by the petitioner of a motor vehicle and that at the time of the accident the petitioner was acting within the scope of his office or employment as an employee of the United States Government and a remedy by suit within the meaning of subsection (b) of Section 2679 of Title 28 United States Code, is therefore available to the plaintiff against the United States. There is a certification by the United States Attorney for the Eastern District of Illinois that petitioner was acting in the scope of his employment at the time of the incident out of which this action arose.

After removal of the cause to this Court, defendant Thomas Huffman, Administrator of the Estate of Bobbie Lou Huffman, deceased, filed his motion to remand the cause to the State court or, in the alternative, to remand Count I thereof. In support of his motion to remand, this defendant asserts that the order for removal was entered on February 12, 1963, being the same day that the petition for removal was filed without notice to or opportunity to be heard by this defendant; that the petitioner for removal is not a person empowered to seek removal in the absence of a showing of diversity of citizenship; that the complaint is brought by plaintiff against the moving defendant, both of whom are residents of the County of Clinton, State of Illinois; and that there is no allegation in the petition for removal that he resides in any other state or county; that the United States Statutes do not contemplate removal of a case where there are defendants other than the United States employee who reside in the same state in which the plaintiff resides and in which the forum for the filing of the suit was established.

The moving defendant has not seen fit to favor the Court with a brief; however, plaintiff has filed a brief in opposition to the motion to remand, wherein it is urged that the Court should retain jurisdiction of the entire cause; that remanding a portion of this cause to the state court would put the plaintiff in a position where innumerable problems would be encountered — that (1) the matter concerning the same set of facts would have to be tried two separate times; (2) there would be double expense; (3) there would be the question of how to reconcile the matters if there would be a verdict in one trial before the other, whether or not this would be an estoppel by verdict; (4) if there would be a verdict in one trial and not in the other, the question would be raised as to whether a finding as to one joint tort-feasor would not release or discharge the obligation of the other joint tort-feasor.

As concerns the third and fourth points raised by the plaintiffs, the Court does not believe that they contain sufficient merit to warrant serious consideration in considering the plaintiffs' objection to the motion to remand.

The first two points, however, are of another nature, and it would certainly be true that in the event this cause is in part remanded to the state court, it would then necessitate a trial in this Court and a trial in the state court. There would likewise be double expense involved. These matters must be considered by the Court in determining whether the cause should be in part remanded to the state courts for further consideration.

Section 2679, Title 28 U.S.C.A., provides in pertinent parts as follows:

    "(b) The remedy by suit against the United States
  as provided by section 1346(b) of this title for
  damage to property or for personal injury, including
  death, resulting from the operation by any employee
  of the Government of any motor vehicle while acting
  within the scope of his office or employment, shall
  hereafter be exclusive of any other civil action or
  proceeding by reason of the same subject matter
  against the employee or his estate whose act or
  omission gave rise to the claim.
    "(d) Upon a certification by the Attorney General
  that the defendant employee was acting within the
  scope of his employment at the time of the incident
  out of which the suit arose, any such civil action or
  proceeding commenced in a State court shall be
  removed without bond at any time before trial by the
  Attorney General to the district court of the United
  States for the district and division embracing the
  place wherein it is pending and the proceedings
  deemed a tort action brought against the

  United States under the provisions of this title and
  all references thereto. * * *"

That the action against defendant Charles Rakers is one which is removable under the statute hereinabove set out is clear; and, accordingly, the Court finds that the cause of action was properly removed to this Court.

The Court has been unable to find any case directly in point which has been called upon to interpret Section 2679, Title 28 U.S.C.A., as concerns the facts ...


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