Loftus v. Pennsylvania Rd Co

• Decision Date: 27 March 1923
• Docket Number: 17605
• Citation: 107 Ohio St. 352,140 N.E. 94
• Parties: Loftus, By Etc., v. The Pennsylvania Rd. Co.
• Court: Ohio Supreme Court

140 N.E. 94

107 Ohio St. 352

Loftus, By Etc., v. The Pennsylvania Rd. Co.

No. 17605

Supreme Court of Ohio

March 27, 1923

Venue - Negligence actions against carriers - Section 11273 General Code - Ohio residence prerequisite - Jurisdiction under federal employer's liability act - Foreign corporations - Section 11276, General Code, inapplicable when - Constitutional law - Privileges and immunities of citizens - Section 2, Article IV, U. S. Constitution.

1. The amendment to Section 11273, General Code (109 O. L., 81) excludes from the jurisdiction of the state courts of Ohio all causes against the persons and companies therein referred to for injuries to person or property or for wrongful death occurring without the state of Ohio unless such claimant is a resident of this state.

2. It is the duty of the courts of this state to entertain causes arising under the federal Employer's Liability Act of 1908 (U. S. Comp. St. Secs. 8657, 8665), subject to the limitations contained in the aforesaid amendment to Section 11273, General Code.

3. The amendment to Section 11273 limits the provisions of Section 11276, but does not operate as a repeal of the same or any part thereof.

4. The purpose of Section 2 of Article IV of the federal Constitution, which guarantees that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," is to prevent arbitrary and unreasonable discrimination in each state in favor of its own citizens and against the citizens of other states, and the amendment to Section 11273, General Code does not operate as a discrimination. That statute is based upon residence without regard to citizenship. The amendment does not therefore contravene the mandate of the federal Constitution.

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The facts are stated in the opionion.

Messrs. Anderson & Lamb and Mr. J. J. Tetlow, for plaintiffs in error.

Messrs. Squire, Sanders & Dempsey, for defendant in error Pennsylvania Rd. Co.

Messrs. Tolles, Hogsett, Ginn & Morley, for defendant in error New York, C. & St. L. Rd. Co.

Messrs. Payer, Winch, Minshall & Karch, amici curiae.

MARSHALL C. J.

William Loftus, a minor and an employe of the Pennsylvania Railroad Company, a resident and citizen of Erie county, Pa., was injured in an accident in the course of his employment at New Castle, Pa. The Pennsylvania Railroad Company is a corporation organized under the laws of the state of Pennsylvania, and owns and operates a steam railroad through Pennyslvania, Ohio, and other states, and was at the time of the accident engaged in interstate commerce, and the plaintiff was employed in interstate commerce operations. Within the statutory limitation of time plaintiff filed suit against the Pennsylvania Railroad Company, to recover damages for his injuries under and by virtue of the provisions of the federal Employers' Liability Act in the court of common pleas of Cuyahoga county, Ohio, and service was made, in accordance with the statutes of Ohio, upon the agent of the Pennsylvania Railroad Company in that county. The railroad company moved to quash the service of summons on the ground that by the provisions of Section 11273, General Code, as amended 109 Ohio Laws, 81, the action could not be maintained in the courts of Ohio.

This record calls for the discussion and determination of two questions: First, an interpretation of Section 11273; second, is Section 11273 constitutional?

First. Section 11273 (109 O. L., 81) is as follows:

"An action against the owner or lessee of a line of mail stages or other coaches, a railroad company, interurban railroad company, suburban railroad company or street railroad company owning or operating a railroad, interurban railroad or street railroad within the state, or against a transportation company owning or operating an electric traction road located upon either bank of a canal belonging to the state, may be brought in any county through or into which such line, railroad, interurban railroad, street railroad or electric traction railroad passes or extends; provided that all actions against such owner, lessee or company for injuries to person or property, or for wrongful death must be brought in the county in which the cause of action or some part thereof, arose, or in the county in which the claimant for injuries to person or property or one whose wrongful death was caused, resides at the time when the cause of action arose, if the road or line of such owner, lessee or company or any part thereof be located in such county. If no part of such line or road be located in such county, then such actions may be brought in the county in which any part of such road or line is located, nearest the place where the claimant for injuries to person or property or the one whose wrongful death was caused, so resided."

This statute relates to the subject of venue. In the absence of any statutory restriction, it is generally conceded by all the states of the Union that state courts of general jurisdiction will entertain actions transitory in nature against any person or corporation upon whom service of process can be made in accorandance with the statutory procedure prescribed by such state. In the state of Ohio this has been declared in the case of Handy v. Insurance Co., 37 Ohio St. 366, 370. This privilege must be held to be limited in this state by the amendment of Section 11273 above quoted. That amendment for the first time prescribes the venue for certain actions against transportation companies. The language of that amendment is not clouded or ambiguous and clearly limits the venue to the county of plaintiff's residence at the time of the injury, or the county where the injury occurred, if the road or line or any part thereof be located in such county; otherwise in the county where the line is located nearest to the place of residence or injury.

On this branch of the discussion the question presented are: (1) Does the statute apply to nonresidents of the state? and (2) Does it apply to actions under the federal Employers' Liability Act?

It is contended by counsel for plaintiff in (a) That the amendment only applies to a cause of action arising within the state of Ohio; and (b) that it cannot apply to a foreign corporation, if the cause arose outside of Ohio.

(a) The proviso in Section 11273 includes "all actions" against the classes of corporations referred to in the earlier part of that section. It does not make an exception of those actions arising outside of the state. If this court should place a construction upon the language used which would not make it exclusive, then the word "all" would be rendered entirely devoid of meaning. The plain unambiguous meaning to be given to the language employed makes it clear that the Legislature intended to deprive all persons from restoring to the courts of Ohio in cases against the companies named, whether foreign or domestic, unless the injuries to person or property, or the wrongful death, were caused in the state, or the claimant resides in the state. Inasmuch as the General Assembly was legislating for the State of Ohio, it was unnecessary to state in definite and specific terms that nonresidents of the state, or those who had not suffered damage to person or property within the state, might not employ the process of the courts of the state, and it may not be inferred that, because there was not an express inhibition against nonresidents, they were therefore not intended to be excluded. It is more reasonable to say that they are excluded because of the failure to make a saving clause in their behalf, as was done by a recent Texas statute covering a similar piece of legislation.

Section 11273 is purely a venue statute. It does not in any sense establish either the general or special jurisdiction of courts of common pleas. Jurisdiction must not be confounded with venue. Jurisdiction is the right to hear and determine a cause, but the term is used in the sense of power rather than in the sense of selection. There is no doubt that courts of common pleas in Ohio have the right to hear cases of injuries to person and property and of wrongful death by railroad companies, but it does not follow that Ohio court must, and at all events, hear all cases which may be tendered. In some of the former decisions of this court the language concerning the word "jurisdiction" has not been carefully selected, thereby leading to some misapprehension. Jurisdiction may exist to hear and determine causes of a certain class, and yet that jurisdiction may not be permitted to attach to certain cases by reason of limitations of venue. Venue signifies the geographic division where a cause shall be tried. Both jurisdiction and venue depend upon constitutional and statutory provisions. While certain provisions may give the courts power to hear certain causes, other provisions may limit the rights of certain parties to avail themselves of that jurisdiction. Causes have been arbitrarily classified as either local or transitory. By the early common law all causes were necessarily local because they were all triable by jury, and the jury had to be drawn from the vicinage, and jurors were not only the judges, but witnesses, of the facts. Debtors soon learned to take advantage of this fact, and by fleeing from the neighborhood made it impossible to try cases against them at all. It therefore became necessary to make all actions transitory. It was soon found again that actions affecting land, whether the title was involved, or the question was one of damages for tresspass or waste, could not effectively be heard, or at least the judgment could not be effectively enforced, except at the location of the land. This gave rise to the aforesaid classification. At an early...