Southern Pac. Co. v. Baum.

• Decision Date: 11 December 1934
• Docket Number: No. 3974.,3974.
• Citation: 38 P.2d 1106,39 N.M. 22
• Parties: SOUTHERN PAC. CO.v.BAUM.
• Court: New Mexico Supreme Court

39 N.M. 22

38 P.2d 1106

SOUTHERN PAC. CO.

v.BAUM.

No. 3974.

Supreme Court of New Mexico.

Dec. 11, 1934.

Appeal from District Court, Quay County; Patton, Judge.

Suit for injunction by the Southern Pacific Company against W. F. Baum. From a judgment refusing the injunction, plaintiff appeals.

Affirmed.

Injunction held not to lie to restrain New Mexico citizen from prosecuting action against railroad under Federal Employers' Liability Act in Texas on ground of inconvenience and expense to railroad, where most of the testimony would be medical, and medical witnesses were located in Texas, no malice was shown, and action was commenced in Texas only because it was more convenient for employee to do so. Federal Employers' Liability Act § 6, as amended, 45 U.S.C.A. § 56.

Del W. Harrington, of El Paso, Tex., James L. Briscoe, of Tucumcari, and E. R. Wright, of Santa Fé, for appellant.

Sydney Smith and Abner S. Lipscomb, both of El Paso, Tex., and Myron B. Keator, of Tucumcari, for appellee.

BICKLEY, Justice.

Appellee, Baum, a resident of New Mexico, claiming to have been injured through the negligence of appellant, operating a line of railroad in Texas and New Mexico, commenced a damage suit in the courts of Texas under what is known as the Federal Employers' Liability Act (45 USCA §§ 51-59), which gives him the right to maintain his cause of action at any point where the defendant may be doing business and where the courts will take jurisdiction thereof.

Appellant sought an injunction from the district court of Quay county, N. M., to restrain appellee from maintaining his suit in Texas or from going outside of the state of New Mexico to maintain it.

The grounds for the injunction stated in the complaint are thus summarized by appellant:

“Prior and subsequent to the date of appellee's injuries and when the Texas suit was instituted there was maintained a court of competent jurisdiction in Quay County, New Mexico, to-wit, the District Court for the Ninth Judicial District, in which he could have instituted and prosecuted to final judgment his suit against appellant with equal security to his legal rights as in the Texas courts, without the assumption of greater burden than would be incurred in the prosecution of his suit in Texas; that many witnesses, both employe and non-employe, cognizant of the facts surrounding appellee's injuries, reside at Tucumcari, including the physician who treated him, who could not by any legal process be required to attend upon a trial outside New Mexico; as to all non-employe witnesses, it might have to depend upon the unsatisfactory and disadvantageous method of proof by depositions; that it could not know in advance with reasonable certainty the definite date of trial in El Paso, or what witnesses would be required to rebut appellee's case; that if compelled to take all its employe witnesses from Tucumcari to El Paso, 331 miles, it would necessitate their absence for several days from the performance of their railroad duties in interstate commerce, rendering it necessary during their absence for appellant at great expense to employ other persons to perform their duties; that the maintenance of his suit in Texas would deprive it of the possible right of a jury view of the premises, involve the taking away its records, result in interference with its railroad operations in intra and interstate commerce, the incurring of great and unnecessary additional expense and inconvenience and subject it to hardship, injury and damage, and give appellee an inequitable, unjust and unconscionable advantage over appellant, for none of which it had adequate legal remedy-all of which injustices and burdens could be avoided if suit were brought and tried in Quay County, New Mexico, where appellee and most all the witnesses resided, where appellant is doing business and the transaction occurred, and an open court of competent jurisdiction capable of doing full and complete justice between the parties was and is at all times maintained.”

Appellee answered, denying all the allegations of the complaint, except with respect to his residence and the filing of his suit in Texas, and averring that, if restrained from prosecuting his Texas suit, he would be deprived of counsel of his own choosing and be compelled to employ additional counsel at great burden; that following his injuries he was sent from Tucumcari to a hospital in El Paso where he was treated by three doctors of its staff; that, as most of the testimony supporting his action is of a medical nature, cognizable by doctors resident of El Paso, because of lack of finances he will be unable to secure their attendance at Tucumcari and compelled to rely on depositions at great expense. It is also asserted that the Texas suit was filed pursuant to a right conferred by the venue provisions of the Federal Employers' Liability Act (section 56, title 45, USCA), and that, if restrained, he will be deprived of a valuable right and of counsel of his own choosing.

Upon the hearing, the court found that practically all the railroad company's witnesses resided in or near Tucumcari, N. M., where the injury to appellee occurred, and that such witnesses would have to be transported to El Paso for the trial of the damage suit, entailing additional expenses running into the hundreds of dollars (about $650) over and above the cost of trial in Quay county. We may add that it further appears that, if defendant should prevail in the Texas court, it would not be able to recover this item as costs.

Appellant thus summarizes the court's conclusions as follows:

“That the instant proceeding is an equitable one. *** There is no doubt in the court's mind that it has power in cases of the present character to grant the relief prayed for by injunction; that the question of venue is one determined by the laws of the respective states. It is assumed that the State of Texas likewise has venue in cases of the present character. It would be with reluctance that the court would grant an injunction to enjoin a party litigant from proceeding with his cause of action in another state. *** If the State of Texas, or any other state, by its Statute confers venue of an action, ordinarily the party living there, the plaintiff has a right to select the forum in which to bring his suit. *** Neither the element of fraud nor malice enters into this case. It had not been shown that the Texas suit was brought to harass, vex, or annoy appellant, and the only real ground is the question of inconvenience and extra expense, also the further question of the opportunity of having a jury view of the premises upon which the accident occurred. Procedure for jury view is used sparingly in this court's jurisdiction. Its experience has been that in such cases the jurors acquire or come into possession of incompetent testimony, and for that reason a jury view of the premises is only permitted under extraordinary circumstances.

“Therefore, premises considered, it is beyond the bounds of propriety to grant the injunctive relief.”

[1] Appellant's first contention is that, in appeals from the action of the trial court in equitable proceedings, “the appellate court will review the evidence and conclusions reached by the chancellor as a case of first impression disregarding the rule prevailing in actions at law that the findings will be adhered to on appeal where there is substantial evidence to support them.”

In so far as we may be called upon to review findings of fact in an equity case, the appellant is mistaken. See A. & C. R. R. Co. v. D. & R. G. R. Co., 16 N. M. 281, 117 P. 730; Fraser v. Bank, 18 N. M. 340, 137 P. 592; Grissom v. Grissom, 25 N. M. 518, 185 P. 64; Massengill v. City of Clovis, 23 N. M. 519, 270 P. 886.

This is a reviewing court, and, so far as the facts are concerned, we review with deference the findings of the chancellor. In Martinez v. Floersheim M. Co., 27 N. M. 245, 199 P. 905, an injunction case, it was held that the finding of the trial court of fraud and collusion in making a transfer of property to defraud a creditor was a finding of fact not to be disturbed on appeal where substantial evidence supported the finding. Except in so far as the chancellor's statement that fraud and malice did not appear may be considered as a finding of fact, the foregoing rule of review has little bearing on the case at bar. But we may not ignore the chancellor's finding that the evidence did not show that the Texas suit was brought to harass, vex, or annoy appellant. Appellant does not claim that it proved that the appellee entertained a bad motive in bringing his suit in Texas. Appellant proved no more than the burden which it would have to bear of additional expense and inconvenience to itself and its witnesses. It asserts that this injury alone entitles it to the injunction independent of motive. Appellant cites two cases, both from the state of Indiana: Kern v. Cleveland, C., C. & St. L. Ry. Co., 204 Ind. 595, 185 N. E. 446, and Cleveland, C., C. & St. L. Ry. Co. v. Shelly (Ind. App.) 170 N. E. 328, where inconvenience and extra expense involved have been held sufficient to warrant the interference of equity.

The Indiana court thought the facts without reference to actual intention afforded an instance of vexatious litigation which should be condemned. In neither of the Indiana cases did the plaintiff suing in the foreign jurisdiction give any explanation of why such forum was selected. In the case at bar the appellee, Baum, gave reasons for instituting his suit in El Paso instead of the place of his residence in New Mexico. He said this was “because the Brotherhood retains a Regional Director and Attorney, and they furnish a Special Investigator to investigate all cases, and we pay our part to that as a Brotherhood man, and are supposed to employ their attorneys which we do in order to get the special investigation that the railroad companies would beat us out of in any...