Petersen v. Ogden Union Railway & Depot Co.

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. *575 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 Car-man 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 he 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, he brought in jurisdictions other than those herein set forth, will not he 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. C'assady 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: *576 “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 *577 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 accrue to' plaintiffs in state courts because they are state courts and not merely because of their geographical location, and, desiring *578 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 he 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 defen *579 dant 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 adjective duty or liability. It cannot be denied that the contracts in question in this case have the purpose or intent to enable the common carrier to exempt itself from the liability to submit to suit for a violation of the Federal Employers’ Liability Act ‘in the district * * * in which (it) shall be doing business at the time of commencing such action.’ The narrow question is then, are such contracts denounced by Section 5 of the Federal Employers’ Liability Act? The act, including Sections 5 and 6, is remedial. “The comprehensive phraseology of Section 5 certainly includes within its meaning a contract the purpose or intent of which is to enable the common carrier to exempt itself from- liability to suit for a violation of the act ‘in the district * * * in which the defendant shall be doing business at the time of commencing such action.’ The beneficial effects of the statute should not be whittled away by the courts by distinguishing between adjective and substantive rights and adjective and substantive duties or liabilities. Adjective rights and their corelative duties or liabilities are frequently as important as substantive rights, and substantive rights and their corelative duties or liabilities are of little value without adjective rights and their corelative duties or liabilities whereby the substantive rights may be enforced. * * * Generally speaking, venue is a privilege which may be waived, but it may not be contracted away in the face of a specific statute which prohibits such contracting, as does Section 5 of the Employers’ Liability Act under consideration.” We think that what the court said in the Sherman case, quoted above, in reference to a contract that attempted to keep the employee from suing in certain federal courts applies to the contract in this case which attempts to keep the employee from bringing his suit in a state court. The practical effect of the contract in this case is probably to decrease the likelihood' of the defendant’s having to pay damages to the plaintiff. The contract confines plaintiff to the federal court. In the State Courts of Utah the plaintiff need convince only six out of eight jurors to be successful in his suit. In the federal court he must convince twelve out of twelve. Obviously the hurdles in recovery are greater in the federal court, and therefore, there is less likelihood that the defendant will have to pay damages if the case is tried there. *580 The defendant contends that the plaintiff exercised his right to choose the court in which to bring his action by entering into the contract and, inasmuch as the plaintiff had the right to choose and exercised that right by choosing the federal court, Sections 5 and 6 of the Act are not contravened by the contract. The spirit and the letter of the Act require that an injured employee be left free and uninfluenced by the carrier in selecting the court in which to bring his action. The Iiableness to judicial pronouncement of liability in any of the courts enumerated in Section 6 of the Federal Employees’ Liability Act is itself a “liability” as that word is used in Section 5 of the Act. Hence so much of the contract as attempts to limit the courts in which plaintiff may bring his suit is void under Section 5 and should not be enforced. It is apparent that our decision in this case does not accord with decisions of several sister states and some lower federal courts on practically the same question. See Detwiler v. Lowden et al., 1936, 198 Minn. 185, 269 N. W. 367, 838 107 A. L. R. 1054, 1059; Detwiler v. Chicago, R. I. P. R. Co. et al., D. C., 15 F. Supp. 541; Clark v. Lowden et al., D. C., Dec. 1942, 48 F. Supp. 261; Herrington v. Thompson et al., June 1945, 61 F. Supp. 903; Roland v. Atchison, Topeka & Santa Fe Ry. Co., D. C., April 1946, 65 F. Supp. 630. We do not agree with the reasoning of those cases and, as they are not binding on us, do not follow them. As far as we have been able to ascertain, the Supreme Court of the United States which must be the final arbiter has not yet specifically decided the question. While the facts were somewhat different than in the instant case, we think the reasoning in the case of Duncan v. Thompson, supra, is applicable to the case at bar and tends to support our decision. We do not consider the opinion in Philadelphia, Baltimore & Washington Railroad Co. v. Schubert, 1912, 224 U. S. 603, 30 S. Ct. 589, 56 L. Ed. 911 which says Section 1 of the Federal Employers’ Liability Act creates liability on carriers decides the question of whether or not Section 6 of the Act *581 also creates liabilities within the meaning of “liability” as used in Section 5 of the Act. Section 6 of the Act was not involved in the Schubert case. The case is remanded to the district court with instructions to vacate its order of dismissal. Costs to appellant. McDONOUGH, and WADE, JJ., concur.