Chesapeake & O. Ry. Co. v. Vigor

• Decision Date: 29 December 1936
• Docket Number: No. 1198.,1198.
• Citation: 17 F. Supp. 602
• Parties: CHESAPEAKE & O. RY. CO. v. VIGOR.
• Court: U.S. District Court — Southern District of Ohio

17 F. Supp. 602

CHESAPEAKE & O. RY. CO. v. VIGOR.

No. 1198.

District Court, S. D. Ohio, E. D.

December 29, 1936.

Wilson & Rector and Fred Rector, all of Columbus, Ohio, for plaintiff.

Clarence C. Chilcott, of Kansas City, Mo., for defendant.

UNDERWOOD, District Judge.

On November 14, 1936, the plaintiff railroad company filed its verified bill of complaint herein seeking a permanent injunction restraining the defendant from maintaining, carrying on, or prosecuting in any way, any action or proceeding in Kentucky or Indiana, or elsewhere than in Ohio against the plaintiff herein to recover damages growing out of the death of defendant's decedent, Harry F. Chilcott. In particular, plaintiff seeks to restrain said defendant from proceeding with any such suit in the state of Indiana and Kentucky.

Plaintiff filed its application for a temporary injunction, seeking substantially the same relief pending the final hearing of this case November 17, 1936.

The defendant filed her motion to dismiss plaintiff's bill alleging want of equity; that the bill showed upon its face that plaintiff is not entitled to the relief prayed for, and that this court is without jurisdiction to grant the prayer of said bill.

All requirements with regard to notice having been complied with, this cause properly came on for hearing in this court upon plaintiff's application for a temporary injunction and defendant's motion to dismiss the bill of complaint. These questions were orally argued to the court, and briefs and affidavits were filed on behalf of both parties.

The facts of this case, as found by this court from the verified bill of complaint filed by the plaintiff and the affidavits filed by both plaintiff and defendant, are as follows: The plaintiff herein is a railroad corporation, resident and citizen of the state of Virginia, engaged in the transportation of passengers and freight in both interstate and intrastate commerce. Plaintiff conducts its business in various states, including Indiana, Virginia, and Ohio, and it owns and operates lines extending through Marion and Franklin counties in the latter state. Harry F. Chilcott, a resident and citizen of Franklin county, Ohio, was employed by the plaintiff as a brakeman. While so employed, and engaged in interstate commerce, he was injured at Marion, Ohio, on or about February 28, 1936, and subsequently died, leaving his widow, Mary Chilcott, a resident of Franklin county, as his sole beneficiary and next of kin. Florence Vigor also of Franklin county, was appointed and duly qualified as administratrix of his estate, thereafter bringing suit in the state court, Jefferson county, Ry., against the plaintiff herein under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), alleging that the death of her decedent was caused by the aforesaid injury received in the course of his employment. This action was dismissed by the defendant herein without prejudice, after a plea to the jurisdiction of the court had been entered by this plaintiff.

The administratrix then filed her action for the same cause in the United States District Court for the Northern District of Indiana, Hammond Division, under section 6 (as amended) of the Federal Employers' Liability Act, being U. S. Code, title 45, § 56 (45 U.S.C.A. § 56) and that suit is still pending. It is admitted that many witnesses whose testimony will be required during the trial of the Indiana case are residents of Marion and Franklin counties, Ohio; some of them are physicians and some of them are employees of the plaintiff herein, engaged in interstate commerce at their various places of employment. At least a part of the records needed by the railroad corporation in its defense are located at Columbus, Franklin county, Ohio. The attorney who represents the administratrix is a resident of Kansas City, Mo., and the plaintiff has employed Columbus attorneys upon a yearly or contract basis, who could conveniently defend a suit brought in Franklin county.

Plaintiff herein seeks to restrain said defendant from maintaining her suit in any court outside the state of Ohio upon four principal grounds: First, because the plaintiff herein is unable to compel the attendance of witnesses in another forum; second, because the litigation at Hammond would be a burden upon interstate commerce; third, that it would involve additional expense, disadvantage, and inconvenience to said plaintiff; and fourth, because of the difficulty involved in securing the application of the principles of Ohio law in the Indiana forum.

It must be conceded that under the statute the suit to which plaintiff herein objects could properly be filed in the Northern District of Ohio, where the accident occurred; in the federal courts of Virginia, residence of the plaintiff herein; or in the United States District Court of any district in which the corporation is doing business; which in this case include both this court and that of Hammond, Ind. It therefore follows that the District Court at Hammond has jurisdiction of the subject-matter, and under the act, the defendant herein is given the right to file her action in Hammond, as well as in other courts, both state and federal, upon which jurisdiction is conferred by the act.

Thus it becomes clearly apparent that the defendant herein is attempting to exercise a legal right expressly conferred upon her by federal statute. If this court has power to grant the injunctive relief sought, certainly the exercise of that power must be based upon a clear and convincing showing that oppression and hardship, or fraud, are being inflicted upon the plaintiff herein; or in other words that the exercise of such legal right by the defendant would be clearly inequitable as against the plaintiff.

As its first ground for this action, plaintiff says that it will be unable to compel the attendance of witnesses in Hammond. It would appear that in this respect the defendant will have an equal difficulty, with possible advantage to this plaintiff, inasmuch as the plaintiff should be better able to produce its own employees at the trial than the defendant to produce witnesses over whom she has no control. If this ground should be a controlling factor, and it should be again urged in repeated actions such as this, it would in all probability exclude a suit in the federal courts of the Northern District of Ohio where the accident occurred; and a suit in the federal courts of Virginia, the state in which plaintiff herein has its residence; leaving to the defendant herein, as to federal courts, none of the choices given her by statute except to sue in a district wherein plaintiff is doing business, as she is now doing. But the plaintiff corporation demands that the choice be further restricted by denying to the administratrix the right to sue outside the state of Ohio; which means, in the ultimate end, virtually a mandate from this court to bring her action in a state court or in the Southern District of Ohio, the only federal jurisdiction where this same objection could not be urged as to Franklin county witnesses. After all, the courts of this district are qualified only by the fact that the plaintiff corporation does business here. Hence, the qualification is the same as the Hammond court and such injunction would merely take the choice from the defendant herein, where it is placed by statute and give it to this plaintiff corporation upon the same basis of selection; that is, where the corporation does business. This court is unable to find any equitable merit in taking a privilege from one upon whom it is conferred by statute and giving it to the opposite party against whom that specific privilege was granted.

For the reasons just stated, this court is unable to find any greater merit in the plaintiff's contentions that its records needed in the trial are kept in...