Taylor v. Atchison, T.&S.F. Ry. Co., Gen. No. 39525.

• Court: United States Appellate Court of Illinois
• Citation: 292 Ill.App. 457,11 N.E.2d 610
• Decision Date: 20 December 1937
• Docket Number: Gen. No. 39525.
• Parties: TAYLOR v. ATCHISON, T. & S. F. RY. CO.

292 Ill.App. 457
11 N.E.2d 610

TAYLOR
v.
ATCHISON, T. & S. F. RY. CO.

Gen. No. 39525.

Appellate Court of Illinois, First District, First Division.

Dec. 6, 1937.
Rehearing Denied Dec. 20, 1937.

Appeal from Superior Court, Cook County; E. I. Frankhauser, Judge.

Suit by Edwin A. Taylor against the Atchison, Topeka & Santa Fé Railway Company. From an adverse judgment, the defendant appeals.

Affirmed.

[11 N.E.2d 611]

Emmet Trainor, Joseph S. Lafferty, and Joyce Cox, all of Chicago (Charles H. Woods, of Chicago, of counsel), for appellant.

Robt. J. McDonald and William H. De Parcq, both of Minneapolis, Minn. (Samuel Cohen and John E. Burke, both of Chicago, and Leo W. Hodel, of Joliet, of counsel), for appellee.

McSURELY, Justice.

September 7, 1934, plaintiff, while employed as a fireman on one of defendant's locomotives, was injured in a collision with another locomotive heading a train in the state of Kansas; he brought suit under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59) in the superior court of Cook county, Ill., and upon trial had a verdict for $75,000; remittitur of $16,200 was made and judgment was entered against defendant for $58,800, from which it appeals.

A preliminary question relates to the venue and the effect of an injunctional order restraining plaintiff from prosecuting this suit in this county.

The suit was commenced here October 4, 1934, and October 30 on defendant's application to the district court of Neosho county, Kan., an ex parte order was entered enjoining plaintiff from prosecuting this action in Cook county, Ill., until the further order of the Kansas court. This injunctional order was set forth by a plea in abatement filed in the instant suit, but upon motion of plaintiff was stricken by the trial court. Defendant argues that this action was reversible error, relying principally upon Allen v. Chicago Great Western R. Co., 239 Ill.App. 38. Most of the other cases cited by defendant involve the question of the equity power of a court and the propriety of its exercise under certain circumstances.

The Allen Case was not an action under the Federal Employers' Liability Act and Allen relied upon the principle of comity between the states to justify her action in suing in Illinois. Adeline Allen resided in Waterloo, Iowa, and on December 23, 1921, brought suit in the district court of the county where she resided for $2,900 as damages for personal injuries received

[11 N.E.2d 612]

at Waterloo, caused by the defendant's train striking her; while this was pending, and over a year later, another lawyer filed suit in Cook county, Ill. on the same cause of action to recover $40,000; the Iowa court issued a writ of injunction restraining the prosecution of the Illinois suit; our Appellate Court held that the filing of the Illinois suit on the identical cause of action while the first one was pending in Iowa constituted unwarranted and vexatious litigation, and, as there was no sufficient reason in comity to ignore the judicial command of the sister state, the plaintiff was relegated to her remedy in the Iowa court; and our opinion noted that the injunction was issued by the court of the state in which plaintiff resided, where she already had a suit pending, where the accident happened, and where the witnesses lived. In the instant case defendant operates a line of railroad in Cook county, Ill., owns property, maintains offices, and keeps regular employees and a staff of lawyers here; the suit was brought under the federal act and prior to the Kansas injunction.

As a general proposition the court first obtaining jurisdiction of a case may hold jurisdiction to the exclusion of other courts having concurrent jurisdiction. Juhlin v. Hutchings, 90 Kan. 618, 135 P. 598;Wise v. Pacific States Life Ins. Co. (D.C.) 11 F.Supp. 895; The Salvore (C.C.A.) 36 F.2d 712. Defendant cites Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383, 115 N.E. 554, and Royal League v. Kavanagh, 233 Ill. 175, 84 N.E. 178, but these merely hold that an injunction restraining the prosecution of a suit in another jurisdiction should not issue unless it clearly appears that bringing the suit in a foreign state would result in fraud, gross wrong, or oppression.

The Federal Employers' Liability Act (section 6 [45 U.S.C.A. 56]) clearly makes it the duty of the Illinois court to try the case on its merits. It provides, among other things, that a suit thereunder may be brought in a district court of the United States where the defendant resides, or in which the cause of action arose, or in which the defendant is doing business when suit is commenced. The jurisdiction of the United States courts is concurrent with that of the state courts. In Taylor v. Southern Ry. Co., 350 Ill. 139, 182 N.E. 805, it was said that a plaintiff to whom a right of action is given by the act has a right to bring his suit in either the federal or state court, and that, if he elects to bring suit in a state court, it is the duty of that court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion, to take cognizance of an action to enforce a right of recovery arising under the act, citing Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961, Ann.Cas.1916E, 505, L.R.A.1917A, 86, and Louisville & Nashville R. Co. v. Stewart, 241 U.S. 261, 36 S.Ct. 586, 60 L.Ed. 989.

The opinion in Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 179, 56 L.Ed. 327, 38 L.R.A.(N.S.) 44, upheld the constitutionality of the Federal Employers' Liability Act, and said: “We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion.” In Schendel v. McGee (C.C.A.) 300 F. 273, 279, the act was construed to give the employee the right to maintain an action for damages in the courts of the district where the defendant is doing business at the time suit is commenced, and said: “It being the law, it is a court's duty, where there is jurisdiction, to take and retain that jurisdiction and try the case.” In Hoffman v. Missouri ex rel. Foraker, 274 U.S. 21, 47 S.Ct. 485, 71 L.Ed. 905, the suit was brought in Missouri under the federal act to recover for the death of an employee of the Missouri Pacific Railroad through an accident occurring on its line in Kansas; the railroad is a Missouri corporation and the suit was brought in that state in a county traversed by the railroad and in which it had an office and an agent; the trial court supported defendant's contention that it should have been sued in Kansas where the accident occurred and the plaintiff resided; the Missouri Supreme Court held against the trial court and the railroad company appealed to the United States Supreme Court. It was there held that, as defendant was sued in a county in which it had an agent and operated its railroad, plaintiff could maintain his action in Missouri. In Roberts' Federal Liabilities of Carriers (2d Ed.) vol. 2, p. 1842, the author says in substance that the provision of the act relating to the venue “is one for the benefit of the plaintiff, and it permits him to institute the action in whichever of the * * * designated places best serves his convenience.” One of these places is where the railroad operates. Plaintiff in the instant case alleges that defendant was

[11 N.E.2d 613]

operating a railway line extending into Cook county, Ill.

The facts in Alford v. Wabash Ry. Co., 229 Mo.App. 102, 73 S.W.2d 277, are somewhat like those at bar. There the plaintiff, a resident of Illinois, where the accident happened, sued under the act in a circuit court in Missouri; the defendant railroad company was an Indiana corporation doing business in Missouri; it secured an injunction from the circuit court of Morgan county, Ill. against the further prosecution of the Missouri action, and sought to have it abated. It was held that the right of the Missouri court to proceed attached before the injunction and that there was no rule that would require that court to discontinue the proceedings. Other cases to the same effect are Kepner v. Cleveland, C. C. & St. L. Ry. Co., 322 Mo. 299, 15 S.W.2d 825, 65 A.L.R. 599;Frye v. Chicago, R. I. & P. Ry. Co., 157 Minn. 52, 195 N.W. 629,196 N.W. 280; and Peterson v. C., B. & Q. R. Co., 187 Minn. 228, 244 N.W. 823.

We hold in the instant suit brought under the Federal Employers' Liability Act, under proper allegations giving the local court jurisdiction, and commenced prior to the injunctional order from the Kansas court, that such order is of no...