Grand Trunk W. R. Co. v. Boyd

• Decision Date: 29 June 1948
• Docket Number: No. 55.,55.
• Citation: 33 N.W.2d 120,321 Mich. 693
• Parties: GRAND TRUNK WESTERN R. CO. v. BOYD.
• Court: Michigan Supreme Court

321 Mich. 693

33 N.W.2d 120

GRAND TRUNK WESTERN R. CO.

v.BOYD.

No. 55.

Supreme Court of Michigan.

June 29, 1948.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, Presiding judge.

Suit by Grand Trunk Western Railroad Company, a Michigan corporation, against Alexander Boyd, to enjoin defendant from taking further proceedings with an action brought by defendant against plaintiff elsewhere than in the county or district where defendant resided or was injured, contrary to agreements. From a decree dismissing the bill on motion, plaintiff appeals.

Decree reversed and decree entered restoring temporary injunction as granted by trial court and cause remanded.

Before the Entire Bench.

George F. Gronewold, of Battle Creek (H. Victor Spike and Forbes B. Henderson, both of Detroit, of counsel), for plaintiff and appellant.

Mechem & Mechem, of Battle Creek (Melvin L. Griffith and Walter N. Murray, both of Chicago, of counsel), for defendant and appellee.

REID, Justice.

Plaintiff filed the bill of complaint for an injunction forbidding defendant from taking further proceedings with an action brought by defendant against plaintiff elsewhere than in the county or district where defendant resided or was injured, contrary to two agreements. From a decree dismissing the bill on motion, plaintiff appeals.

Defendant Boyd was injured on November 23, 1946, at Battle Creek, Michigan, while in the employment of plaintiff railroad company, which company was then and there operating as a common carrier in both interstate and intrastate commerce. On December 5, 1946, on request of defendant Boyd, plaintiff railroad company advanced to him $50 without admitting liability, and in consideration of the advancement defendant Boyd signed an agreement containing the following:

‘If my said claim cannot be settled to my satisfaction and should I wish to start suit against said Grand Trunk Western Railroad Company to recover damages for my said injuries, that any such suit shall be commenced within the county or district where I resided at the time my injuries were sustained or in the county or district where my injuries were sustained and not elsewhere.’

On December 21, 1946, defendant Boyd, being in further need of money, requested another advancement and plaintiff railroad company thereupon furnished him an additional $50 as an advancement, in consideration of which defendant signed a further agreement containing language identical with that above quoted.

Plaintiff does not dispute that defendant was injured and that when he was injured both defendant and the plaintiff railroad company were engaged in interstate commerce and that defendant's cause of action arose under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., that defendant's injuries were such as to prevent him from going back to work, that he was without funds for living expenses, that the amount of the two payments totaling $100 it was agreed should be deducted from the final amount the plaintiff railroad company would be required to pay him in settlement or satisfaction of his judgment or otherwise.

On June 25, 1947, defendant began a suit against plaintiff railroad company in the superior court of Cook county, Illinois, to recover damages for his said injury. Plaintiff railroad company seeks to enjoin defendant from proceeding any further in said suit and alleges that it will suffer irreparable harm if compelled to bring its witnesses to Cook county superior court; that about ten or more competent witnesses, all living in Michigan, would be required to attend the trial outside of the state of their residence; that the expense of procuring the attendance of the witnesses in Cook county superior court would be very much greater than if the trial could be had in Michigan; that the witnesses could not be compelled to cross the state line; that many of them might refuse to attend in the state of Illinois; and that plaintiff railroad company would be put to a great disadvantage in attending at the venue chosen by defendant.

Defendant claims the two agreements to be void as contravening the provisions of the Federal Employers' Liability Act, §§ 5, 6, as amended in 1939, 45 U.S.C.A. §§ 55, 56 of which are in part as follows:

‘Sec. 55. 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: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sume it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.

‘Sec. 56. * * * 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 jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States, and no case arising under this chapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States.’ (Itallics supplied.)

Plaintiff railroad company claims that the liability mentioned in § 55 is the liability to respond in damages, and has no reference to venue. Plaintiff further claims that by the two contracts the liability remains unchanged and that only the venue is affected. Plaintiff further claims that the word ‘liability’ italicized in the above quotation of § 55 means the liability created in § 51 of the same chapter, the Federal Employers' Liability Act, § 1, as amended in 1939, 45 U.S.C.A. § 51, which reads in part as follows:

‘Every common carrier [engaged in interstate commerce] * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’ (Italics supplied.)

Plaintiff further claims that the provisions of § 55 are aimed at a present evasion of a future occurring liability and not at a compromise or settlement of an already accrued cause of action.

We must consider the meaning of the word ‘liability’ as used in § 55 in question, and on the determination of the construction to be given that word will depend the result of this case.

Webster's New International Dictionary, 2nd Ed. Unabridged, gives the following definition of ‘liability’:

‘1. State or quality of being liable; as, the liability of an insurer.

‘2. That which one is under obligation to pay, or for which one is liable. * * * ‘3. * * * A debt; an amount which is owned.’

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