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

• Decision Date: 25 February 1930
• Docket Number: No. 13791.,13791.
• Citation: 96 Ind.App. 273,170 N.E. 328
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. SHELLY.

96 Ind.App. 273

170 N.E. 328

CLEVELAND, C., C. & ST. L. RY. CO.

v.SHELLY.

No. 13791.

Appellate Court of Indiana, in Banc.

Feb. 25, 1930.

Appeal from Marion Circuit Court; Harry O. Chamberlin, Judge.

Action by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against James Frank Shelly, to enjoin him from prosecuting a suit against plaintiff in the state of Missouri. From a ruling sustaining a demurrer to the complaint and a judgment for defendant, plaintiff appeals. Judgment reversed, with instruction to overrule the demurrer, and for further proceedings.

Frank L. Littleton and Forrest Chenoweth, both of Indianapolis, Harry N. Quigley, S. W. Baxter, and Chas. P. Stewart, all of Cincinnati, Ohio, for appellant.

Noel, Hickam, Boyd & Armstrong, of Indianapolis, and Charles P. Noell, of St. Louis, Mo., for appellee.

ENLOE, J.

December 16, 1927, the appellee was an employee of appellant, working as a yard switchman in the yards of appellant at Brightwood, Marion county, Ind. He had been in such employment for about eight years previous to said date, and during all of said time, and at the time of the filing of the complaint herein, said Shelly was an actual bona fide resident of the city of Indianapolis, Marion county, Ind. On the day above mentioned, while at work as a yard switchman, in said yards, he met with an injury by accident which resulted in the loss of one of his legs. The appellant is a railroadcorporation duly organized under the laws of the state of Indiana and Ohio and has been such for more than thirty years, and as such owns and operates various lines of steam railway extending into and through the states of Ohio, Indiana, and Illinois. During said time appellant has owned and operated, and at the time of said injury to appellee and now it owns and operates, several lines of steam railway running into and through Marion county, Ind., and through a large number of other counties in the state of Indiana (39 are mentioned in the complaint). March 9, 1928, the appellee brought suit, as plaintiff, against appellant, in the circuit court of the city of St. Louis, in the state of Missouri, to recover damages for the injuries so sustained by him. The action now under consideration was brought against the appellee, personally, to restrain him from prosecuting his said suit so brought in the circuit court of the city of St. Louis.

The facts above set forth are alleged in the complaint, and it is also therein alleged, inter alia, that upon the trial of the said action for damages, the appellant will have some fifteen to twenty witnesses, all residents of Indianapolis, and most of them in the service of the appellant, working as yard switchmen in said Brightwood yards, the attendance of which witnesses cannot be compelled at said trial; that said employees are engaged in the work of making up trains, both inter and intra state; and that even if they consented to and did attend said trial, as witnesses, the business of the appellant, in handling its commerce, would be greatly disrupted, and also appellant would be put to great expense and inconvenience, all consequent upon its being compelled to litigate said matter in a foreign jurisdiction; that if appellant is compelled to take the depositions of said witnesses, it would be under a great disadvantage, in that the jury could not see its witnesses, hear them testify, nor observe their demeanor while testifying.

It was also alleged that if said cause were tried in the state of Missouri, the appellant would be deprived of the full benefit of certain rights which it would have in the courts of the state of Indiana, and that in the state of Missouri a verdict for the plaintiff may be returned upon the concurrence of nine members of a jury of twelve. There was also an averment that said suit was brought in said Missouri court for the purpose of causing this appellant great inconvenience, expense, injury, and damage, and in order that the appellee herein might secure an inequitable, unjust, and unconscionable advantage over the appellant by avoiding the laws of the state of Indiana and procuring the benefit of the laws of the state of Missouri. The complaint contains many other allegations, but most of them are of a formal nature and need not be herein set out. The prayer was that the appellee herein be restrained and enjoined from prosecuting his said suit so instituted by him in said court in Missouri or from aiding or assisting therein, and for all proper relief.

A demurrer for want of facts was sustained to this complaint, and from this ruling, and the judgment subsequently entered, this appeal is prosecuted. The sufficiency of said complaint is the only question before us.

The question herein involved has been considered by the courts of last resort in a number of states, including our own. In Railway Co. v. Miller, 19 Mich. 305, it was said, at page 315: “It is not to be denied that much hardship is likely to arise where a person is called upon to defend himself against a charge arising out of transactions occurring at a distance, and out of the jurisdiction. Witnesses cannot always be compelled or induced to be present at the trial, and where a knowledge of localities becomes essential it is impossible to obtain a view by the jury. Questions of foreign law may, as in this case, become important elements of decision. We think that when by the pleadings, or upon the trial, it appears that our tribunals are resorted to for the purpose of adjudicating upon mere personal torts committed abroad, between persons who are all residents where the tort was committed, the inconveniences and the danger of injustice attending the investigation of such controversies render it proper to decline proceeding further.”

In Wabash R. Co. v. Peterson, 187 Iowa, 1331, 175 N. W. 523, 525, the alleged cause of action arose in Council Bluffs, Iowa, but the suit was brought thereon in the state of Missouri, and the defendant railroad company then brought an action in the Iowa court to restrain the said plaintiff from doing any act or thing in furtherance of his said suit. In passing upon the questions presented the court said: “It is settled by the overwhelming weight of authority, indeed there is no dispute in authority, that such an injunction as is here prayed acts merely upon those who are within the jurisdiction of the court as a regulation of their conduct, and is not an attempt to control the action of the courts in a sister state, and is not in contravention of any right given by the Constitution or laws of the United States. (Citing authorities.) *** While we agree with the trial judge that no one has a vested interest in mere...