Barnett v. Baltimore & O. R. Co.

• Decision Date: 25 November 1963
• Docket Number: No. 760,760
• Citation: 119 Ohio App. 329,200 N.E.2d 473
• Court: Ohio Court of Appeals
• Parties: , 27 O.O.2d 400 BARNETT, Appellant, v. BALTIMORE & OHIO RD. CO., Appellee.

Page 329

119 Ohio App. 329

200 N.E.2d 473, 27 O.O.2d 400

BARNETT, Appellant, v. BALTIMORE & OHIO RD. CO., Appellee.

No. 760.

Court of Appeals of Ohio, Sixth District, Huron County.

Nov. 25, 1963.

Spangenberg, Hasenflue & Shibley and Donald P. Traci, Cleveland, for appellant.

Shumaker, Loop & Kendrick, Toledo, and Carpenter & Paffenbarger, Norwalk, for appellee.

FESS, Judge.

This is an appeal on questions of law from an order of the Common Pleas Court dismissing plaintiff's petition. On August 28, 1959, plaintiff filed an action in the United States District Court for the Northern District of Ohio, Eastern Division, under the Federal Employers' Liability Act, Title 45, Section 51 et seq., U.S.Code, in the sum of $250,000 for personal injuries allegedly caused by the negligence of the defendant railroad. On November 15, 1960, the cause was transferred from the Eastern Division to the Western Division. The action proceeded to trial on March 13, 1961, before a United States district judge for the Western Division, and a jury was duly empanelled, after which, at the election of the plaintiff, the jury was discharged and the cause continued for trial.

On November 8, 1961, the plaintiff filed an amended complaint in the United States District Court. Thereafter on November 15, 1961, plaintiff commenced an action in the Court of Common Pleas of Huron County, Ohio, under the Federal Employers' Liability Act for such personal injuries, which is identical in all respects to the amended complaint filed on November 8, 1961, in the United States District Court. On January 18, 1962, counsel for the respective parties were informed by the United States District Court that the case was assigned for pretrial conference on February 1, 1962. On the latter day, the United States district judge signed a pretrial order reading in part as follows:

'Plaintiff requests the court to entertain a motion to dismiss this case without prejudice and upon consideration thereof the court grants such request.

'Plaintiff is therefore granted leave to file such motion within fifteen days.'

On March 3, 1962, plaintiff filed a motion for an order permitting the plaintiff to dismiss the action without prejudice and by order dated May 9, 1962, the United States district judge denied plaintiff's motion to dismiss his action without prejudice and no further proceedings have been had to date in the federal court.

After the plaintiff had commenced his action in the Court of Common Pleas of Huron County (November 15, 1961), on December 29, 1961, the defendant filed an answer in which it alleged in paragraph 8 thereof that the Court of Common Pleas should not take jurisdiction for the reason that at the time of the commencement of the action in the Common Pleas Court there was pending an identical action between the same parties for the same cause of action and seeking the same relief in the United States District Court.

Thereafter the defendant filed its motion in the Court of Common Pleas for an order dismissing plaintiff's petition on the ground that an identical prior action between the same parties was pending in the United States District Court. Such motion was supported by affidavit of defendant's counsel. After oral hearing of such motion to dismiss, on June 13th the judge of the Court of Common Pleas ordered the petition dismissed at plaintiff's cost. From such order the instant appeal is taken to this court. Although the journal entry does not specify the ground of dismissal, presumably it was on the ground of another action pending in the federal court.

Without question, by the Federal Employers' Liability Act, Congress has conferred concurrent jurisdiction upon the federal and the state courts to entertain actions under such Act. Such actions brought in state courts may not be removed to any District Court of the United States. Title 28, Section 1445, U.S.Code, formerly Section 6 of the Act as amended in 1910, 36 Stats. at L., 291.

In 1 American Jurisprudence, 44, Abatement and Revival, Section 40, it is stated:

'It is now well established that the pendency of an action in personam in the state court cannot be pleaded in abatement of a subsequent suit brought in the federal court having concurrent jurisdiction with the state court, although both suits are between the same parties and for the same cause.'

Among the authorities cited in support of the above statement are Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077 and Barber Asphalt Paving Co. v. Morris, Judge, 8 Cir., 132 F. 945, 67 L.R.A. 761--an opinion written by Sanborn in which Van Devanter and Hook concurred. Neither of these cases involved the Federal Employers' Liability Act.

The Kline case was one in which an action for breach of contract was brought in federal court on the ground of diverse citizenship and the Supreme Court held that the federal court could not enjoin the prosecution of a subsequent action brought in a state court involving the same cause of action and which was not removable to the federal court but that the two actions must be allowed to proceed until the judgment is reached in one court which can then be pleaded in the other as res judicata.

In reaching its conclusion the court referred to the distinction between actions involving a res and those in personam and said, 260 U.S. at page 235, 43 S.Ct. at page 83:

'The well-established rule, to which we have referred, that where the action is one in rem that court--whether state or federal--which first acquires jurisdiction draws to itself the exclusive authority to control and dispose of the res, involves the conclusion that the rights of the litigants to invoke the jurisdiction of the respective courts are of equal rank. See Heidritter v. Elizabeth Oil Cloth Co., 112 U.S. 294, 305, 5 Sup.Ct. 135, 28 L.Ed. 729. The rank and authority of the courts are equal, but both courts cannot possess or control the same thing at the same time, and any attempt to do so would result in unseemly conflict. The rule, therefore, that the court first acquiring jurisdiction shall proceed without interference from a court of the other jurisdiction is a rule of right and of law based upon necessity; and where the necessity, actual or potential, does not exist, the rule does not apply. Since that necessity does exist in actions in rem and does not exist in actions in personam, involving a question of personal liability only, the rule applies in the former but does not apply in the latter.'

The Barber Asphalt case holds:

'The pendency in a state court of a prior action between the same parties for the same cause furnishes no ground for an abatement or for a stay of proceedings in a subsequent action brought by the same plaintiff in a federal court, where no conflict arises between the courts over the custody or dominion of specific property.'

In stating the reason for the rule that a federal court may not stay or abate an action on the ground that a prior action is pending in a state court, the court says at page 951 of 132 F.:

'The reason for the rule that the pendency of an action in a state court is no bar and furnishes no ground for the abatement of another action for the same cause between citizens of different states in the federal court is that the latter court has concurrent jurisdiction of such controversies with the courts of the state, and that citizens of different states have the constitutional right to the independent opinion and judgment of the judges of the national courts upon the questions presented by their controversies at least until those questions have become res adjudicata by the Judgments of other competent courts. Orders that such citizens shall secure no such opinions until they are conclusively estopped from obtaining them by the final judgments of other courts upon their controversies as effectually deprive them of their rights to adjudications in the national courts as judgments sustaining pleas in bar or in abatement. Nay, they deprive them of those rights more effectually, because such judgments are reviewable by appeal or by writ of error, while such stays may not be so challenged. The power is granted to the judges of the Circuit Court and the duty is imposed upon them by the Constitution and the acts of Congress to form and express their independent opinions upon controversies between citizens of different states over which the jurisdiction of their courts is properly invoked. However grateful to them and courteous to others it would be in cases of concurrent jurisdiction to await the opinions of the respected and able jurists who adorn the benches of the courts of the states, and then to be bound by their decisions, that power may not be lawfully abdicated, nor may that duty be legally renounced, by the judges of the federal courts. The order staying the proceedings in the action in the Circuit Court until the final determination of the appeals in the state courts is violative of these principles, is calculated to deprive the petitioner of its right to the independent decision of the federal court upon the questions involved in its controversy, and it cannot be sustained.'

On pages 44 and 45 of 1 American Jurisprudence it is stated:

'The converse of this rule is equally true as a general proposition: The pendency of a prior suit in the federal court is not generally a bar to a suit in the state court by the same plaintiff against the same defendant and for the same cause of action, unless the action in the federal court is one that has been removed from the state court. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Generally speaking, the federal courts and the state courts which have concurrent jurisdiction over civil actions may be considered as courts of separate jurisdictional sovereignties.

'The general rule stated that the pendency of actions in...