Kern v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 28 April 1933
• Docket Number: No. 26003.,26003.
• Citation: 204 Ind. 595,185 N.E. 446
• Court: Indiana Supreme Court
• Parties: KERN et al. v. CLEVELAND, C., C. & ST. L. RY. CO. et al.

204 Ind. 595

185 N.E. 446

KERN et al.

v.CLEVELAND, C., C. & ST. L. RY. CO. et al.

No. 26003.

Supreme Court of Indiana.

April 28, 1933.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and others against Emma F. Kern and others. From judgment for plaintiffs, defendants appeal.

Affirmed.

Noel, Hickam, Boyd & Armstrong, of Indianapolis, for appellants.

Frank L. Littleton and Forrest Chenoweth, both of Indianapolis, and H. N. Quigley, S. W. Baxter, and Charles P. Stewart, all of Cincinnati, Ohio, for appellees.

HUGHES, Judge.

This was an action by the appellee the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against the appellants Emma F. Kern, as administratrix of the estate of George Kern, deceased, and some ten or more other defendants to enjoin them from maintaining and assisting in the maintenance of a suit brought against appellee in the circuit court of St. Louis, Mo., by Emma F. Kern, as administratrix of the estate of George Kern, deceased, to recover damages for the death of said George Kern and to enjoin said appellants from maintaining and assisting in the maintenance of any action against said railway company for the death of said George Kern except in the state of Indiana, and to enjoin appellees other than the said railway company from giving testimony as witnesses or in any other way assisting in the maintenance of said action brought in the circuit court of St. Louis.

An application for temporary injunction was made by the railway company upon notice, a hearing was had thereon, and a temporary injunction granted as prayed from which this appeal is taken.

The complaint alleged among other things that the plaintiff is a steam railroad corporation organized under the laws of Ohio and Indiana, and owns lines of railway in the states of Ohio, Indiana, Michigan, and Illinois, and under contracts with other railroads operates trains into Louisville, Ky., and St. Louis, Mo.; that it owns and operates six lines of railroad running into the city of Indianapolis, Marion county, Ind., and owns and operates lines of steam railroads in thirty-nine other counties of Indiana, including all of the counties adjoining Marion county, except Hamilton county; that it owns and operates large shops and yards in the city of Indianapolis, Ind., in which yards it has many tracks and where it breaks and makes up trains in its operation in and through the city of Indianapolis; that the appellant Emma F. Kern and her intestate, George Kern, had been citizens and residents of the city of Indianapolis for more than thirty years prior to the time this action was brought and that the said Emma F. Kern was such a citizen at the time the action was brought and that her intestate, George Kern, had been employed by the appellee railway company for more than thirty years as an engineer operating trains between Indianapolis and Cincinnati, and that appellant and her intestate had lived and she now lives within three miles of the courthouse of Marion county, Ind.; that appellant's intestate, George Kern, received injuries, which resulted in death, while operating a train near Acton, Marion county, Ind., and that suit for such death was brought in the circuit court of the city of St. Louis, Mo.; that there were six courts of competent jurisdiction in Marion county, Ind., in which appellant might have sued for damages for the death of her intestate and one or more courts of competent jurisdiction in each of the other thirty-nine counties of Indiana in which said railway company operates; that all of the witnesses for the appellee, some twenty or twenty-five, reside in the city of Indianapolis, or in Marion county, Ind., and that it would be an unreasonable burden on the appellee and its interstate and intrastate commerce to take, or attempt to take, such witnesses and its records to the city of St. Louis to defend the case so brought by the appellant, and the appellee could not with reasonable certainty tell when said cause would be tried and that it could not in advance of such trial tell what witnesses would be competent of rebuttal, and that all such burdens could be avoided if such suit were brought and tried in Marion county or some other nearby Indiana county; and that the appellee would be deprived of the right to have the jury inspect the premises where the cause of action arose and that the defense of such suit in the state of Missouri will subject the appellee to great inconvenience, expense, hardship, injury, and damage and will give the appellant an inequitable, unjust, and unconscionable advantage over appellee.

It is not the theory of the appellee's complaint that the circuit court of the city of St. Louis, Mo., does not have jurisdiction of the subject-matter involved in the suit brought in that court by the appellant. The theory of the complaint, as stated by appellee, is that a person suing under the Federal Employers' Liability Act does not have an absolute right to sue in any court which may have jurisdiction of the subject-matter, but that such a suit may not be maintained in a foreign state, different from that in which the parties reside, where the maintenance and defense of such suit in such foreign state would be unjust and inequitable and would impose an unreasonable, unjust, and unconscionable burden upon the defendant.

The error relied upon for reversal is as follows: The court erred in granting the temporary injunction.

This is an action for a temporary injunction and the trial court has large discretionary powers in determining whether or not a temporary injunction should be granted in a given case. Unless there has been an abuse of that discretion the trial court's finding will not be interfered with on appeal. Spicer v. Hoop, 51 Ind. 365;People's Gas Co. v. Tyner, 131 Ind. 277, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433;Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687, 72 N. E. 849, 68 L. R. A. 175; 14 R. C. L. 312.

The questions involved in the instant case have been passed upon by the Appellate Court of this state in the case of Cleveland, C., C. & St. L. R. Co. v. Shelly, 170 N. E. 328. The complaint in that case is practically the same as the one under consideration. The Marion circuit court sustained a demurrer to the complaint in that case and on appeal the Appellate Court reversed the lower court. There was a petition by the appellee to transfer the cause to the Supreme Court, and, after a careful consideration of the petition to transfer, the Supreme Court denied the transfer, and therefore it appears that the questions raised in the instant case have been decided and settled adversely to the contention of the...