Chi., M. & St. P. Ry. Co. v. McGinley

• Decision Date: 15 November 1921
• Citation: 185 N.W. 218,175 Wis. 565
• Court: Wisconsin Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. MCGINLEY.

175 Wis. 565

185 N.W. 218

CHICAGO, M. & ST. P. RY. CO.

v.MCGINLEY.^a1

Supreme Court of Wisconsin.

Nov. 15, 1921.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Suit by the Chicago, Milwaukee & St. Paul Railway Company against Clarence S. McGinley. From an order restraining the defendant from prosecuting a pending action or any other action outside the state for certain personal injuries, the defendant appeals. Reversed, with directions to dismiss the complaint.

This is an appeal from an order perpetually restraining and enjoining the defendant from maintaining, carrying on, or prosecuting an action begun by the defendant against the plaintiff in the district court of Renville county, in the state of Minnesota, and from maintaining or prosecuting any action in any court or place outside or beyond the limits of the state of Wisconsin, for personal injuries sustained by the defendant in the city of Janesville, Rock county, Wis.

The facts are stated in the opinion.Davis & Michel, of Minneapolis, Minn. (Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, of counsel), for appellant.

H. J. Killilea, of Milwaukee, and Nolan & Dougherty, of Janesville, for respondent.

DOERFLER, J. (after stating the facts as above).

The part of the injunctional order complained of is as follows, to wit:

“It is ordered that the defendant, Clarence S. McGinley, his agents, attorneys, and employés, be and they are perpetually restrained and enjoined from maintaining, carrying on, or prosecuting any suit or procedure by him, now instituted in the state of Minnesota, against the Chicago, Milwaukee & St. Paul Railway Company, because of, or on account of, any injury sustained by said Clarence S. McGinley on or about the 12th day of June, 1920, at the city of Janesville, Rock county, in the state of Wisconsin, and said defendant, his agents and attorneys, are perpetually restrained and enjoined from prosecuting or assisting in the prosecution, or in any manner trying the case of Clarence S. McGinley against the Chicago, Milwaukee & St. Paul Railway Company, now pending in the district court of Renville county, in the state of Minnesota, and the said Clarence S. McGinley, defendant herein, is restrained and enjoined perpetually from in any manner assisting, or engaging in the prosecution of said suit, so instituted in the state of Minnesota by him against the Chicago, Milwaukee & St. Paul Railway Company, and said Clarence S. McGinley, defendant herein, is restrained and perpetually enjoined from maintaining, instituting, conducting, or prosecuting any action to recover for said injury received in the city of Janesville, Rock county, Wis., on or about the 12th day of June, 1920, in any court or place outside and beyond the limits of the state of Wisconsin.”

The defendant, at the time he sustained the injuries herein referred to, and at all times herein mentioned, was a resident of Rock county, Wis. and on or about June 12, 1920, was engaged as an employé of the plaintiff, as a box packer and oiler, in the yards of the plaintiff company, in the city of Janesville, in said Rock county, and while so employed, sustained severe personal injuries. The action of the defendant is based upon the federal Employers' Liability Act of Congress (U. S. Comp. St. §§ 8657-8665).

The plaintiff, at all times referred to herein, was and is a railway corporation, chartered and existing under the laws of the state of Wisconsin.

Some time after the happening of the accident resulting in defendant's injury, the defendant brought the action above referred to against the plaintiff, in said Renville county, Minn., and such action was pending in such county at the time of the commencement of this action. The grounds for injunction set forth in the complaint are substantially as follows:

(1) That the necessary and material witnesses of the plaintiff, being about 15 in number, reside in the city of Janesville, Wis.

(2) That the county of Renville, Minn., where the defendant brought his action, is approximately 500 miles from the city of Janesville, where the accident occurred.

(3) That if the action be tried in Minnesota, in said Renville county, the plaintiff cannot have its witnesses present and will be deprived of having them testify personally before a jury.

(4) That the plaintiff will be deprived of the privilege of having the jury view the premises.

(5) That a verdict in Minnesota may be rendered by ten concurring jurors, and that a unanimous verdict of 12 jurors is required in Wisconsin.

(6) That the plaintiff, if the action is tried in Minnesota, will be deprived of the privilege of examining the defendant under and pursuant to the provisions of section 4096 of the statutes of Wisconsin, previous to trial.

(7) That the action is wrongfully brought in the state of Minnesota by the defendant, for the purpose of securing an unjust advantage over the plaintiff.

(8) That the expense of trying the action in Minnesota will be greater than if the cause is tried in Wisconsin.

(9) That the plaintiff will be inconvenienced if the case be tried in Minnesota.

(10) That the plaintiff will not receive a fair trial in the state of Minnesota.

It is further alleged in the complaint that defendant's attorneys, in the conduct of their business, maintain an office or bureau, by means of which, through clippings from newspapers and various agencies, they ascertain and learn of various accidents and injuries received by railroad employés in the states of Minnesota, Wisconsin, Illinois, and Iowa, and on learning of any accident, they personally or through an agent solicit such personal injury business. In brief, the plaintiff charges the defendant's counsel with having procured the authority to prosecute the personal injury action by and through means commonly known in the profession as “ambulance chasing.”

The defendant in his answer generally denies all the allegations in the plaintiff's complaint, upon which an application for an injunction is based.

[1][2] The first objection of defendant's counsel is embraced in the inquiry set forth in their brief as follows:

“Can a state court, by injunction, limit the jurisdiction and venue provided in personal injury actions under the Employers' Liability Law of Congress?”

Under the amendment of date of April 5, 1910, the federal Employers' Liability Act, among other things, was amended so as to read as follows:

“Under this act an action may be brought in a Circuit 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 jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.” Act April 22, 1908, § 6, as amended by Act April 5, 1910, § 1 (U. S. Comp. St. § 8662).

The real question involved in this case does not embrace a limitation or control of the jurisdiction and venue provided for in the Employers' Liability Act of Congress, but does involve the right of a state court, for certain reasons, to regulate the conduct of its own citizens over whom it has jurisdiction, in such a way as to prevent hardship, oppression, or fraud.

At the time of the enactment of the original Employers' Liability Act, the state courts had jurisdiction to try personal injury actions authorized by the act. In the amendment of 1910 above set forth, no jurisdiction was conferred by the act upon state courts, and, in fact, Congress has no power under the Constitution to confer or grant jurisdiction to a state court, excepting only as has been held in Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715, that Congress can go no farther than to authorize the judicial officers of the several states to exercise such powers in such cases as is ordinarily exercised by officers of courts not of record. The state courts exist under the Constitution and laws of the state, and their jurisdiction is defined thereunder. State courts may exercise jurisdiction in cases authorized by the laws of the state and not prohibited by the exclusive jurisdiction of the federal courts. By this is meant that wherever Congress gives a right which by its terms is not exclusively confined to the jurisdiction of the federal courts, such rights may be enforced by a state court, and the jurisdiction of the state court is concurrent with the jurisdiction of the federal court. Houston v. Moore, 5 Wheat. 1, 27, 5 L. Ed. 19; Mondou, Plaintiff in Error, v. New York, New Haven & Hartford R. Co. et al., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44 (Second Employers' Liability Cases).

In the latter case cited it was held by the court, Justice Van Devanter rendering the opinion:

“The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount sovereignty. * * * If an act of Congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the...