Clark v. Lowden

• Decision Date: 30 December 1942
• Docket Number: Civ. No. 148.
• Citation: 48 F. Supp. 261
• Parties: CLARK v. LOWDEN et al.
• Court: U.S. District Court — District of Minnesota

48 F. Supp. 261

CLARK v. LOWDEN et al.

Civ. No. 148.

District Court, D. Minnesota, Second Division.

December 30, 1942.

E. S. Stringer, Philip Stringer, and John D. Stringer, all of St. Paul, Minn., for defendants.

Davis, Michel, Yaeger & McGinley, of Minneapolis, Minn., for plaintiff.

NORDBYE, District Judge.

This action arises under the Federal Employers' Liability Act. The accident took place on January 25, 1942, at Rock Island in the State of Illinois, where plaintiff was employed and resided, and still resides. Paragraph V of defendants' answer sets forth certain payments or advancements made to the plaintiff after he was injured. It appears from the recitals in that paragraph that plaintiff has been paid some $400 in three installments, and upon receipt of each payment signed an agreement. The first payment was made on or about April 11, 1942, when plaintiff was paid $150, and in consideration thereof signed the following agreement, which for the purposes of this motion may be considered as typical:

"The Chicago, Rock Island and Pacific Railway Company Frank O. Lowden, James E. Gorman Joseph B. Fleming, Trustees "File No. 42-142 R. G. Clark Rock Island Division "Agreement for Advancement of Funds Prior to Determination of Liability

"At my request the Trustees of the Estate of The Chicago, Rock Island and Pacific Railway Company have this day advanced to me the sum of $150 for living and other expenses while I am disabled for work by personal injuries sustained by me on or about the 25th day of January, 1942, while a switchman.

"In consideration of said advancement, I agree with the Trustees of the Estate of the said Railway Company that I will endeavor, in good faith, to adjust and settle any claim I may have for my injuries before resorting to litigation. If my claim cannot be so adjusted, I promise and agree that I will not start suit against the Trustees or the Railway Company to recover damages for my injuries in any courts except those sitting within the State where my injuries were sustained or within the State where I resided at the time my injuries were sustained, and I covenant with the Trustees, and their successors, that I will not start suit against them or said Railway Company for damages on account of my said injuries in any courts sitting outside of the State of my residence at the time of the said injuries or outside of the State wherein my said injuries occurred.

"I furthermore promise and agree in consideration of the advancement aforesaid that all sums of money now or hereafter advanced to me by the Trustees shall be deducted from any sum which finally may be determined, either by settlement, judgment of a court or otherwise, that I am entitled to receive from the Trustees or said Railway Company on account of said injuries.

"It is understood and agreed that the advancement of this or any other sum of money to me shall not be considered as an admission of any liability on the part of the Trustees or the Railway Company and I understand that the Trustees, and the Railway Company, deny liability for my injuries.

"Dated at Rock Island, Ill. this 11th day of April, 1942.

"I have read and understand this is an advancement.

"R. G. Clark"

It is defendants' position that the agreement, founded upon sufficient consideration, prevents plaintiff from bringing this suit in a jurisdiction other than the State of Illinois. It is contended that the District of Minnesota is far removed from the scene of the accident or the residence of the plaintiff, and that it would be expensive and unduly interrupt defendants' railroad services to bring witnesses several hundreds of miles from Rock Island to Mankato, Minnesota, where the case is pending. Plaintiff, however, calls attention to Section 5 of the Federal Employers' Liability Act, the pertinent portion of which reads: "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void." 45 U.S.C.A. § 55.

Section 6 of the Act reads in part: "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." 45 U.S.C.A. § 56.

It is plaintiff's position that the term "liability" in its broad sense as used in Section 5 of the Act encompasses and embraces venue. Further, that plaintiff's right under the Act to bring this suit in any of the jurisdictions as provided by Section 6 of the Act cannot be limited by any agreement, even after the happening of an accident without running afoul of the inhibition provided in Section 5. Plaintiff relies principally on the teachings of Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222; Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129; Duncan v. Thompson, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575; Philadelphia, Baltimore & Washington R. Co. v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911.

The question presented, therefore, is this: Is the agreement by plaintiff waiving the privilege of venue afforded to him by Section 6 of the Act a contract or device to enable the carrier to exempt itself from any liability created by the Act? If so, the contract referred to herein is unenforcible and void.

That Section 5 of the Act prohibits every variety of agreement or arrangement on the part of the carrier to exempt itself from any liability created by the Act has been definitely determined in Philadelphia, Baltimore & Washington R. Co. v. Schubert, supra. In Duncan v. Thompson, supra, an instrument signed by the injured employee admitting the receipt of $600 for "living and other expenses pending further developments as to the extent and effect of * * * injuries and negotiations for settlement of the claim" and agreeing further that if the claim was not adjusted the $600 would be returned to the carrier as a pre-requisite to the filing and maintenance of any suit, was held void because, "By its terms, unless this condition were satisfied — and in view of Duncan's straitened circumstances the probability of satisfaction would seem negligible — Duncan's only means of enforcing such liabilities as should have been assumed by the respondent would be taken from him." The Court stated further that "the agreement, if valid, would effectively exempt the respondent from liability under the act no matter what the merits of Duncan's claim."

Defendants point out that the agreement herein was not made until after the accident, and therefore such agreement does not run counter to the long line of cases which condemn contracts or agreements which may apply to a future claim for the reason that they are against public policy. See Home Ins. Co. v. Morse, 20 Wall. 445, 22 L.Ed. 365; Progressive Finance & Realty Co. v. Stempel, 231 Mo.App. 721, 95 S.W.2d 834; Restatement of the Law of Contracts, § 558. Further, it is asserted that venue is not synonymous with liability; that "Section 6 establishes venue for an action in the federal courts" — Baltimore & Ohio R. Co. v. Kepner, supra 314 U.S. 44, 62 S.Ct. 9, 86 L.Ed. 28, 136 A.L.R. 1222; that venue is a matter of privilege — Wabash R. Co. v. Bridal, 8 Cir., 94 F.2d 117; Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L. Ed. 167, 128 A.L.R. 1437, and that the liability of the carrier is not diminished or affected by the enforcement of the covenant under attack. Concededly, the liability of the defendants, and the full extent thereof, will be enforced as fully and completely in the Courts of Illinois as in this forum. The responsibility of the defendants for any negligence in connection with the accident which befell the plaintiff will be in no way lessened by a limitation of the venue as reflected in the agreement between the parties. The only sections of the Federal Employers' Liability Act which pertain to the liability of a carrier are Sections 1 and 2, 45 U.S.C.A. §§ 51, 52. Section 6 is the portion of the Act which is affected by this agreement and it pertains only to venue, not to the responsibility or liability of the carrier.

The determination of venue within the limitations of Section 6 rests with the employee, but having selected a venue by the bringing of an action, it would not be suggested that plaintiff had in any way exempted the carrier from liability. It seems clear that the venue is merely the place where the liability is to be enforced. In this contract, which was based on a valuable consideration, plaintiff has merely agreed to enforce that liability in one of the forums embraced in the Act. No one would question the right of the parties to an action to stipulate as to an appropriate venue under the Act. Plaintiff had the privilege of bringing this suit in any one of the jurisdictions countenanced by Section 6 of the Act. If he voluntarily selects the locality of the lawsuit, he has exercised the privilege which the Act confers. It is within his power to select one jurisdiction and waive the convenience or inconvenience, desirability or undesirability, of the other permitted localities. There is no basic difference between the plaintiff's selection of the State of Illinois as the forum to enforce the claimed liability of the defendants by the commencement of a lawsuit therein, and his selection of venue in such jurisdiction by way of a contract in absence of fraud or unfair practices and based upon a sufficient consideration. Many reasons might be suggested why the jurisdiction selected would be the most convenient and least onerous for all parties. But that aside, in either situation he has exercised the privilege conferred by ...