Petersen v. Ogden Union Railway & Depot Co.

• Decision Date: 23 December 1946
• Docket Number: 6956
• Citation: 175 P.2d 744,110 Utah 573
• Parties: PETERSEN v. OGDEN UNION RAILWAY & DEPOT CO
• Court: Utah Supreme Court

175 P.2d 744

110 Utah 573

PETERSEN v. OGDEN UNION RAILWAY & DEPOT CO

No. 6956

Supreme Court of Utah

December 23, 1946

Appeal from District Court, Second District, Weber County; John A. Hendricks, Judge.

Action by Cassady Petersen against the Ogden Union Railway and Depot Company, under the Federal Employers' Liability Act, $1 et seq., 45 U.S.C. A. $51 et seq., to recover judgment for personal injuries. Judgment dismissing the action, and plaintiff appeals.

Reversed, and case remanded with instructions.

Rawlings Wallace & Black, of Salt Lake City, for appellant.

H B. Thompson, Bryan P. Leverich, A. U Miner and M. J. Bronson, all of Salt Lake City, for respondent.

Wolfe Justice. Pratt, Justice, (in dissent). McDonough, and Wade, JJ., concur. Larson, Chief Justice (concurring in result).

OPINION

Wolfe, Justice.

Petersen, plaintiff below, appeals from a judgment of the District Court in and for Weber County dismissing his complaint against the Depot Company.

Plaintiff brought this action under the Federal Employer's Liability Act, Title 45 U.S.C. A. § 51 et seq.; to recover judgment for personal injuries sustained in the course of his employment by the Depot Company.

Before the trial of the case on its merits the trial court on motion of the defendant dismissed the action. The basis of the dismissal was the fact that prior to the commencement of the suit and subsequent to the injury the parties entered into the following written agreement:

"Agreement and Contract"

"Received of the Ogden Union Railway and Depot Company, Five Hundred Dollars ($ 500.00), being an amount advanced to me on ac count of personal injuries sustained by me while employed as a Carman Helper, at or near Ogden, Utah, December 9, 1944, while in the service of the said Ogden Union Railway and Depot Company, such payment not being an admission of liability and to be deducted from any final settlement, which might be made."

"It is agreed that as consideration for such payment, in the event settlement cannot be concluded, suit for damages which I fully understand, might in the absence of this agreement, be brought in jurisdictions other than those herein set forth, will not be brought in any jurisdiction outside of the District Court of the United States, Northern Division."

"I have read the above agreement and contract and fully understand the same."

Sgn. Cassady Petersen

Ogden, Utah

May 11, 1945"

The trial court held that the agreement was binding on the plaintiff and by reason of said agreement plaintiff may not maintain this suit in any other court than the District Court of the United States, for the District of Utah, Northern Division.

Plaintiff contends that the agreement is null, void and invalid as being contrary and in conflict with the provisions of Section 5 and 6, of the Federal Employers' Liability Act.

The applicable parts of Sections 5 and 6 of the Act read as follows:

"Section 5 Contract, rule, regulation, or device exempting from liability;

"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 [Section 51-60 of Title 45 U.S.C. A.] shall to that extent be void; * * *

"Section 6 * * * concurrent jurisdiction of courts; removal of case in State court * * *

"Under this chapter, [Sections 51-60 of Title 45, U.S.C. A.], an action may be brought in the 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."

Is the liableness to a judicial pronouncement of liability in any of the courts enumerated in Section 6 itself a "liability" as the word is used in Section 5 of the Federal Employers' Liability Act?

It is apparent that Congress by the use of the very broad terms of Section 5 intended to protect fully the rights given employees by the Chapter. The section says "any" device whatsoever the purpose or intent of which shall be to enable the carrier to exempt itself from "any" liability created by the chapter shall to that extent be void. The Supreme Court of the United States in Duncan v. Thompson, Jan. 1942, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575, held the section applied to contracts made after the cause of action arose as well as those made before. Regardless of the intention of the parties, if the practical effect of the contract or device is to exempt the carrier from any liability imposed by the chapter, the contract or device is void. Philadelphia, B. & W. R. Co. v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911; McAdow v. Kansas City Western R. Co., 100 Kan. 309, 164 P. 177, L. R. A. 1917E, 539; Larson v. Lewis-Simas-Jones Co., 29 Cal.App.2d 83, 84 P. 2d 296.

Ordinarily venue statutes are for the convenience of the parties. They are to restrict the suit to those courts which because of their geographic location are readily accessible to the parties with the minimum expense and the minimum expenditure of time on the part of the parties and their witnesses. However, even ordinary venue statutes have an important effect on the outcome of cases. Theoretically the same evidence presented in the same way in each of several courts, state or federal, should result in like verdicts. And if the verdict were for the plaintiff, the damages should theoretically be substantially the same amount. But, as a practical matter, the number of jurors required, the rules of procedure, the manner of selecting jurors, the geographic location of the court and other circumstances materially influence the trial of cases.

It is reasonable to assume that a legislature when it enacts a venue statute ordinarily does not consider all the details -- number and selection of jurors, etc. -- of the advantages or disadvantages a particular court may offer plaintiffs or defendants. The legislature probably usually considers only the convenience of the parties and the time and expense phases of the problem.

However it is apparent that Congress, when enacting the venue provision here involved, must have intended it to cover more than the convenience and time and expense of the parties. Among other things it expressly provided that

"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."

That clause was not prompted by mere considerations of convenience or time or expense of litigation. There is no material difference as far as expense of litigation, time required for suit or convenience of parties and witnesses between a suit in a federal court and the same suit in a state court. Congress in prohibiting removal to federal courts of cases started in state courts must have considered at least some of the practical advantages that accure to plaintiffs in state courts because they are state courts and not merely because of their geographical location, and, desiring to secure those practical benefits to the employees, prohibited removal to a federal court.

This conclusion is supported by the opinion in Miles v. Illinois Central Railroad Co., 315 U.S. 698, 62 S.Ct. 827, 830, 86 L.Ed. 1129, 146 A. L. R. 1104, where the Supreme Court of the United States said:

"In the legislative history of section 6, the provision that removal may not be had from a 'State court of competent jurisdiction' was added to the House bill on the floor of the Senate and later accepted by the House, in order to assure a hearing to the employee in a state court. Words were simultaneously adopted recognizing the jurisdiction of the state courts by providing that the federal jurisdiction should be concurrent."

Section 6 makes available to the plaintiff several courts in which he may bring the action. Clearly that section gives the employee substantial benefits. It was not only for his convenience and to enable him to choose a court where the expense of litigation would not be prohibitive, but it was to give him the right to select the court in which he considers it would be most advantageous for him to bring his action.

In Sherman v. Pere Marquette Ry. Co., D. C., Oct. 1945, 62 F.Supp. 590, 592, the employee agreed not to sue the defendant carrier except in either the state courts or the local federal court. The opinion in that case reads in part:

"The Federal Employers' Liability Act creates certain rights in employees of common carriers by railroad while engaged in interstate commerce. Some of those rights are substantive and some are adjective. The act also imposes certain duties or liabilities on such common carriers, and some of those duties or liabilities are substantive and some of them are adjective. One of the rights which the act granted to employees of common carriers by railroad while engaged in interstate commerce was the right to bring an action for a violation of the act 'in the district * * * in which the defendant shall be doing business at the time of commencing such action.' One of the duties or liabilities imposed on common carriers by a railroad while engaging in interstate commerce was the duty or liability of submitting to suits for a violation of the act 'in the district * * * in which the defendant shall be doing business at the time of commencing such action.' This right and this corelative duty or liability are of course an adjective right and an...