30 N.E.2d 982 (Ohio 1940), 28205, Baltimore & O.R. Co. v. Kepner

Docket Nº:28205.
Citation:30 N.E.2d 982, 137 Ohio St. 409
Opinion Judge:HART, J.
Party Name:BALTIMORE & O. R. CO. v. KEPNER.
Attorney:Waite, Schindel & Bayless, Herbert Shaffer, and Philip J. Schneider, all of Cincinnati, for appellant. Messrs. Waite, Schindel & Bayless, Mr. Herbert Shaffer and Mr. Philip J. Schneider, for appellant. Messrs. Borden & Gaines, Mr. Edward M. Ballard, Mr. George Metzger and Mr. Paul R. Brown, for a...
Judge Panel:DAY, ZIMMERMAN, TURNER, WILLIAMS, and MATTHIAS, JJ., concur. WEYGANDT, C.J., dissents.
Case Date:December 18, 1940
Court:Supreme Court of Ohio

Page 982

30 N.E.2d 982 (Ohio 1940)

137 Ohio St. 409

BALTIMORE & O. R. CO.

v.

KEPNER.

No. 28205.

Supreme Court of Ohio

December 18, 1940

Syllabus by the Court.

The state courts of this state cannot, in the exercise of their equity powers, enjoin a resident of the state from prosecuting a cause of action, arising under the Federal Employers' Liability Act, in a federal court of another state having jurisdiction of such action, even though such cause of action arose and may be prosecuted in this state, and even though its prosecution in the federal court of another state may cause great inconvenience and expense to the defendant.

On May 18, 1939, Frederick S. Kepner sustained personal injuries at East Middletown, Butler county, Ohio, while engaged in the performance of his duties as a brakeman in interstate commerce for The Baltimore & Ohio Railroad Company. Kepner is now, and was at the time of his injury, a resident of Hamilton county, Ohio. To recover damages for such injury, he instituted an action against the railroad company [137 Ohio St. 410] under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., in the United States District Court for the Eastern District of New York, in which district the railroad company was doing business at the time such action was commenced.

After Kepner's suit had been instituted, plaintiff in this action, The Baltimore & Ohio Railroad Company, brought this suit against Kepner, as defendant, in the Common Pleas Court of Hamilton county, to enjoin him from further prosecuting his personal injury suit in the federal court for the Eastern District of New York. The plaintiff in its petition, in addition to stating the above facts, alleges that it has at all times, since the accident to the defendant, operated a part of its railroad system through Hamilton and Butler counties in the state of Ohio where the Common Pleas Courts of these counties and the United States District Court for the Southern District of Ohio, Western Division, have jurisdiction to hear and decide defendant's alleged cause of action; that Kepner in bringing his action against the railroad company, more than 700 miles distant from his residence and place of his accident, will cause great inconvenience and unwarranted expense to the plaintiff in that it will be obliged to transport not less than 25 witnesses from the vicinity of Kepner's accident to the place of trial and to keep these witnesses there before and during the trial for several days at an increased expense of not less than $4,000; and that the prosecution of that action in the New York federal court will constitute an undue burden on interstate commerce, and will be an unreasonable, improper and inequitable burden on the company, with no benefit to Kepner.

The defendant demurred to the petition on the grounds that it did not state facts showing a cause of action and that the court had no jurisdiction of the subject of action, which demurrer was sustained. The plaintiff electing not to plead further, the court entered judgment for the defendant and dismissed the petition. [137 Ohio St. 411] Thereupon,

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plaintiff appealed to the Court of Appeals of Hamilton county on questions of law and fact, which court entered a decree for the defendant but certified its record to this court for review and final determination on the ground that its judgment in this case is in conflict with that of the Court of Appeals of Franklin county in the case of Baltimore & Ohio Rd. Co. v. Inlow, 64 Ohio App. 134, 28 N.E.2d 373.

Waite, Schindel & Bayless, Herbert Shaffer, and Philip J. Schneider, all of Cincinnati, for appellant.

Borden & Gaines, of Cleveland, and Edward M. Ballard and George Metzger, both of Cincinnati, for appellee.

HART, Judge.

The question presented in this case is: May a state court of equity restrain a railroad company's employee, injured in the course of his employment in the state of his residence while engaged in interstate commerce, from prosecuting a cause of action for such injury against his employer under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., in a federal District Court of a foreign state, in which district the railroad company was doing business at the time the action was commenced, on the ground that such action thus instituted would cause the railroad company unnecessary inconvenience and expense in the trial of such action?

The defendant's demurrer admits all well-pleaded facts including allegations to the effect that defendant's prosecution of his action against the railroad company in the District Court of New York, more than 700 miles from his residence and the place of his accident, will inconvenience and harass the railroad company and will subject it to unnecessary expense. We may, therefore, assume that the equities shown by the petition favor the contention of the plaintiff, and it remains only to be determined whether the petition is otherwise sufficient to state a cause of action. Defendant[137 Ohio St. 412] Kepner predicates his demurrer to the petition on the provisions of 45 U.S.C.A. § 56, which is in part as follows:

'Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.'

The plaintiff claims that notwithstanding the right of an employee under the statute to prosecute his claim for damages in a district in which the employer is doing business at the time of commencing such action, the state courts of the state of the employee's residence have jurisdiction over him to control him in person and prevent him from invoking the jurisdiction of such district court in a foreign state, if it is inequitable to the employer for him to do so. The plaintiff, to sustain its position, relies in large measure on the recent decision of this court in the case of New York, Chicago & St. Louis R. Co. v. Matzinger, 136 Ohio St. 271, 25 N.E.2d 349, 350, wherein this court affirmed a judgment of the Court of Appeals, holding that the plaintiff below could be enjoined from prosecuting in the state of Illinois her claim for damages for personal injuries suffered in an accident at the hands of the railroad company in this state, where to prosecute such an action would be unduly harassing or oppressive to the defendant. The jurisdiction of the court of this state to make such an order under proper circumstances was approved on the ground that the person on whom the restraining order is made resides within the jurisdiction and is within the power of the court issuing it. In that case this court said: 'The jurisdiction rests in the authority vested in courts of equity over persons * * * not in contravention of any right given by the Constitution or laws of the United States.'

This court further pointed out that the question involved in the Matzinger case, above referred to, was [137 Ohio St. 413] one of venue rather than jurisdiction; that jurisdiction connotes the power to hear and decide a case on the merits while venue connotes locality, the place where a suit should be heard; and that both jurisdiction and venue are prescribed by constitutional or statutory provisions. This court still fully adheres to the doctrine announced in that case when applied to a similar state of facts. However, this court is of opinion that the doctrine of the Matzinger case does not apply to the case at bar.

In the Matzinger case, the plaintiff had no specially granted or inherent right to invoke the jurisdiction of the Illinois court except as she, herself, chose to go into the court of that state and on her own motion invoke its jurisdiction by filing her petition therein. There was no law in Ohio, the jurisdiction of her residence, which granted

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her that right. If there could have been and had been such a law, valid within the state of Ohio, it would seem apparent that no Ohio court could take that right away by injunction operating upon her person.

While in Ohio, certain actions may be brought only in the county in which the defendant resides or may be summoned (Section 11277, General Code), yet under Section 6308, General Code, actions for injury to person or property caused by the negligence of the owner or operator of a motor vehicle may be brought by the person injured against such owner or operator in the county...

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