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District Court of Appeal, Second District, Division 2, California.


Civ. 14170, 14171.

Decided: December 07, 1943

E. E. Bennett, Edward C. Renwick, and Malcolm Davis, all of Los Angeles, for appellant. Hilderbrand, Bills & McLeod, of Oakland, Martin & Downey, of Los Angeles, Louis H. Brownstone, of San Francisco, for respondent.

The two cases entitled above were tried together and are brought here as one appeal.

Each case presents two questions for decision, namely: (1) whether the superior court of California was required to abate the actions brought by the administratrix of the estates of the two decedents because of injunctions issued against the heirs at law by the courts of Oregon forbidding the prosecution of the California actions; (2) whether the instruction to the jury upon the doctrine of res ipsa loquitur was prejudicial error.

Martin Thatcher was the brakeman and Harold Utterback the fireman on the locomotive of eastbound train number “Extra 2521” as that train stood on a siding at Fir Station east of Portland, Oregon. It was alleged that “defendant carelessly and negligently maintained its tracks and right of way and thereby caused another train proceeding upon an adjacent track of defendant to become derailed and to collide with and strike the aforementioned locomotive * * *.” As a result of the collision both employees were killed. On April 6, 1942, respondent was appointed administratrix of the estate of each of the decedents and sixteen days later filed her actions to recover on behalf of those entitled to compensation under the Federal Employers' Liability Act. (Section 51, 45 U.S.C.A.) On May 28, 1942, the answer was filed in each case. The employment of each decedent in interstate commerce was admitted, as well as was the accident, although negligence was denied.

Four months after the cases were at issue appellant filed an action in the circuit court of Multnomah county, Oregon, against Annabelle Utterback and her two children and against Lila B., widow of decedent Thatcher. By these actions in equity in the circuit court of Oregon it was alleged that the decedents were residents of the state of Oregon; that they came to their deaths in that state; that the widows had employed attorney Hildebrand of California, who is not licensed to practice in Oregon, to prosecute their claims against defendant; that he had brought a large number of cases in California to recover under the Federal Employers' Liability Act for death or injury occurring in other states. The bill alleges how such conduct “deprives the defendant railroad of all reasonable opportunity to defend itself on the factual issues”; how it prevents defendant from obtaining the attendance of witnesses before the court; how such practice prevents a view of the premises by the jury; how it encourages confusion, distortion and misrepresentation, and enables the plaintiff to take the defendant by surprise in making factual contentions which cannot be met because of inability to obtain witnesses. It alleges that such practice enables plaintiffs to exact from railroad companies a grossly excessive amount in settlements of exaggerated claims; that properly to defend these actions some twenty witnesses would be required to be transported 1150 miles to Los Angeles, which would burden interstate commerce during war time. Temporary injunctions were granted by Oregon's circuit court against the further prosecution of the California lawsuits by the widowed defendants.

Thereafter, basing its motions upon the orders of the Oregon court, on November 14, defendant undertook to abate the instant actions by motions presented in the superior court which were denied on November 23. Subsequent motions to continue the actions indefinitely were denied December 23, 1942.

(1) Under the Federal Employers' Liability Act, sometimes hereinafter referred to as the Act, no right is conferred upon the widow of a railroad employee to sue directly on account of the death of her husband (45 U.S.C.A. § 51). The only proper party to such an action is the administrator of the estate of such deceased employee. Section 56 of the Act confers jurisdiction upon both federal and state courts, and no case filed in a state court of competent jurisdiction may be removed to a federal court; also the defendant may be sued where it is doing business at the time the action is commenced.

2-3 From the cited sections and from the holdings of the appellate courts the respondent was entitled to proceed with the trial of her actions in California without regard to the injunction issued by the circuit court of Oregon. The right to a trial in the state court is conferred by the Act upon the citizen of any state where the state court has general jurisdiction adequate to entertain the action. The denial of the right to prosecute such action by a state court is a violation of the privileges and immunities clause of the federal Constitution. Article 4, § 2. McKnett v. St. Louis & S. F. Railroad Co., 292 U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227. After the decision of the McKnett case the same subject came before the Supreme Court when the Baltimore and Ohio Railroad brought an action to enjoin the claimant who was a resident of Ohio, where he was injured, from prosecuting his claim under the Act in the federal court of New York on the ground that such New York action was inequitable, vexatious, and harassing and was a burden on interstate commerce. The Supreme Court there held that while the power obtains in the Ohio court to enjoin a claimant under the Act from bringing his action in the district court of New York, yet the privilege of venue granted by the federal statute cannot be frustrated for reasons of convenience or expense; that as to such objections to the law the remedy is by the legislature. Baltimore & Ohio Railroad Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222. Such venue is a privilege created by section 56, which is controlling.

Following the Kepner case the United States Supreme Court had occasion again to comment upon the power of the court of one state to enjoin the prosecution in the courts of a sister state of such an action as that now under consideration, in the case of Miles v. Illinois Central Railroad Co., 315 U.S. 698, 62 S.Ct. 827, 828, 86 L.Ed. 1129. Decedent was a resident of Tennessee and was killed in that state. His widow, having qualified as administratrix in her own state, filed action in Missouri under the Act to recover for the death of her husband. Thereupon the defendant railroad procured an injunction from the chancery court of Tennessee against Mrs. Miles' prosecution of the Missouri case. She dismissed her Missouri lawsuit, obtained her discharge as administratrix and procured the appointment of an administrator in Missouri. That official promptly instituted a new action in Missouri against the railroad upon the same cause alleged in the first lawsuit filed by Mrs. Miles. Not to be outdone, the railroad amended its pleadings in the chancery court of Tennessee whereby it sought “to forbid furthering the new suit in any manner or receiving the proceeds of any judgment” on the ground of inconvenience in that twenty employees would be withdrawn from their duties and defendant would be subjected to an expense of several hundred dollars per day and the burden on interstate commerce would be increased by the transportation of such employees to Missouri. A new temporary injunction was issued. After certiorari had been granted to the United States Supreme Court, 314 U.S. 602, 62 S.Ct. 177, 86 L.Ed. 484, it was there held that on the authority of the Kepner case the carrier must submit to inconvenience and expense if there is jurisdiction although interstate commerce is to be incidentally burdened. The Missouri court was required to entertain the action.

4 The laws of the United States are controlling in the premises. A state court gains its venue from the Act. Hence, by virtue of the federal Constitution such court must remain open to litigants from other states or territories on the same basis as that on which litigants within its immediate jurisdiction are received. For it to deny venue to the personal representative of an employee in interstate commerce residing in a sister state would violate the privileges and immunities clause. (Art. IV, sec. 2, Constitution.) Such an action in a state court can be no more subject to the direction of the courts of a sister state than it would be if instituted in a federal court. It follows that under the Miles decision a state court has not the power to enjoin the prosecution of actions instituted on behalf of the heirs of an employee in interstate commerce in the courts of a sister state merely because of inconvenience and expense. Appellant contends that the Miles case is not applicable because the opinion specifically asserts that the “charge of burden on interstate commerce had been expressly abandoned.” We do not deem that observation a sufficient differentiation of the holding to defeat its applicability. The Supreme Court held that the fact that “the carriers must bear the incidental burden” is a determination that “the state courts may not treat the normal expense and inconvenience of trial in permitted places * * * as inequitable and unconscionable.”

That the nation is at war is not a ground for abating the actions. It is true that during the first world war Congress by statute conferred upon the President the power of controlling the enforcement of the liabilities of common carriers in interstate commerce. Alabama & Vicksburg Railway Co. v. Journey, 257 U.S. 111, 42 S.Ct. 6, 66 L.Ed. 154. There has been no such power conferred since the outbreak of the current war and therefore no similar executive order has been issued.

5 The injunction granted by the Oregon court was ineffective. It profited neither the administratrix who is the plaintiff nor the court which appointed her. The judgment of the California court was not affected by the injunction. 32 C.J. 84, 85, par. 71. There is no law requiring the courts of California to observe an injunction such as that issued by the circuit court of Oregon by virtue of the full faith and credit clause. The cases cited by appellant (Nations v. Johnson, 24 How. 195, 16 L.Ed. 628; Lynde v. Lynde, 162 N.Y. 405, 56 N.E. 979, 48 L.R.A. 679, 76 Am.St.Rep. 332; Id., 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810; Plant v. Plant, 171 Cal. 765, 154 P. 1058; Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123) in support of that proposition may be readily distinguished by their facts. Numerous attempts have been made to abate actions at law brought under the Act by injunction issued by the courts of another jurisdiction. In these cases it has been held that it is the duty of the court in the exercise of its ordinary jurisdiction to take cognizance of an action brought to enforce rights under the Act. Taylor v. Atchison, Topeka & Santa Fe Ry. Co., 292 Ill.App. 457, 11 N.E.2d 610. Certiorari was denied, 304 U.S. 560, 58 S.Ct. 942, 82 L.Ed. 1528.

6 While the decisions upon this question are not uniform upon the question of admitting in evidence the records of other jurisdictions for the purpose of proving the issuance of injunction against the prosecution of pending actions, the better rule supports the action of the trial court in refusing to admit the court records of a sister state which had enjoined the prosecution of the action. Kepner v. Cleveland, C., C. & St. Louis Railway Co., 322 Mo. 299, 15 S.W.2d 825, 65 A.L.R. 599. In the case of Frye v. Chicago, Rock Island & Pacific Railway Company, 157 Minn. 52, 195 N.W. 629; Id., 263 U.S. 723, 44 S.Ct. 231, 68 L.Ed. 525, after Frye had brought his action in Minnesota he was enjoined by the courts of Iowa, which was his home and in which he had been injured. It was held by the Minnesota Supreme Court that the legislature cannot create a transitory cause of action and by statute confine its enforcement to its own courts. Objection to the exemplified copy of the injunction issued by the Iowa court was properly sustained. See State ex rel. Bossung v. District Court, 140 Minn. 494, 168 N.W. 589, 1 A.L.R. 145; Peterson v. Chicago, Burlington & Quincy Railway Company, 187 Minn. 228, 244 N.W. 823; Doyle v. Northern Pacific R. Co., D.C., 55 F.2d 708.

7-14 (2) In applying the doctrine of res ipsa loquitur the court read the customary instruction (Baji 206–B) which in substance advised the jury that from the happening of the accident as proved there arises an inference that the proximate cause was the negligence of defendant. Such instruction is proper in actions under the Federal Employers' Liability Act. Hackley v. Southern Pacific Co., 6 Cal.App.2d 611, 45 P.2d 447; Sibert v. Litchfield & M. R. Co., Mo.Sup., 159 S.W.2d 612. The contention of appellant is that by their evidence plaintiffs proved that the exact cause of the derailment was the breaking of the rail which in turn was caused by the negligent maintenance of the road bed and therefore the res ipsa doctrine does not apply. Citing Connor v. Atchison, T. & S. F. R. Co., 189 Cal. 1, 207 P. 378, 26 A.L.R. 1462; Marovich v. Central Calif. Traction Co., 191 Cal. 295, 216 P. 595. The evidence bearing upon the question of negligence as contained in the appendix to appellant's brief does not prove the cause of the derailment. It merely showed a number of conditions such as the ballast was “fine gravel,” or “river gravel,” “not very much ballast,” “the angle irons were loose,” “the track had pulled away from the ties,” “the spikes were loose,” “the nose of the guard rail was broken off.” Such testimony merely left the question of the exact cause of the derailment in doubt. If the evidence had clearly established that the negligence of defendant was the cause of the derailment, then no prejudice was suffered by the giving of the instruction since its function was to have the jury infer negligence. (Constitution, Art. VI, sec. 4 1/2.) If the cause was not proved, then under all authorities plaintiff was entitled to the instruction because of the allegation of general negligence. Under such allegation while only circumstances were proved yet they “afford reasonable evidence of want of care in a respect for which the defendant is liable”. Lejeune v. General Petroleum Corp., 128 Cal.App. 404, 18 P.2d 429, 433. Where an inference of negligence arises from the inherent nature and character of the act causing the injury, the defendant must then, if it would escape an adverse verdict, “adduce evidence to meet plaintiff's prima facie case.” Hackley v. Southern Pacific Co., 6 Cal.App.2d 611, 45 P.2d 447, 454. Having pleaded negligence generally, if plaintiffs had proved the specific negligent act which caused the derailment they could not have invoked the res ipsa doctrine; but if the evidence they introduced did not clearly prove the cause of the accident they did not thereby waive the benefit of the res ipsa rule. Williams v. St. Louis–San Francisco R. Co., 337 Mo. 667, 85 S.W.2d 624. In the Williams case, proof was received that the wreck occurred on a curve while the train was proceeding at a speed in excess of 40 miles per hour; that 75 per cent of the ties were in a rotten condition for a distance of more than 200 feet; that, commencing at a point near that at which the wheels first struck the ties, the rails of the track on the outside of the curve were joined with angle bars secured with only two bolts instead of four. The Missouri court held that such proof did not deprive the plaintiff of the res ipsa instruction. Had plaintiffs in the present actions introduced no direct evidence of the alleged negligence, and had they relied solely upon the inference referred to in the res ipsa instruction, then such inference standing alone might have been dispelled as a matter of law, by competent proof, if it had been uncontradicted and not open to doubt. Johnston v. Black Co., 33 Cal.App.2d 363, 369, 91 P.2d 921. But their evidence of the negligence in the many respects, without proving the exact cause of the accident, entitled them to the instruction. Manning v. Chicago Great Western R. Co., 135 Minn. 229, 160 N.W. 787. It is true that a derailment might have occurred without culpable negligence, but it was for the jury to determine under the instruction and the evidence whether this derailment was due to the defendant's want of ordinary care.

The authorities cited by appellant are distinguished on the facts. In the Connor case, 189 Cal. 1, 207 P. 378, 26 A.L.R. 1462, plaintiff was a fireman whose engine passed over the bridge in the morning and returned in the evening when the abutment gave way. The right of recovery was based upon the alleged negligence of defendants in failing to inspect the track after a cloudburst which had occurred in the afternoon. Where negligence is alleged with such meticulous care as was there done it is error to instruct on the res ipsa doctrine. In the Marovich case, 191 Cal. 295, 216 P. 595, the specific acts of negligence were enumerated. Under the rule to which we confess allegiance that unfortunate lady was not entitled to a res ipsa instruction.

Both judgments are affirmed.

On Petition for Rehearing.

15 In its petition for rehearing appellant emphasizes the point that our opinion failed to determine whether the trial court exceeded its discretionary power in denying the motions to abate and to continue the trial. What we failed to say in words in reply to those inquiries is implied in the language used. There was no reason why the court should abate the actions. They presented justiciable causes by an officer of the same court, appointed for the very purpose of maintaining the actions on behalf of worthy claimants. Since the necessities that beset the widow of one who toils for wages are not abated by reason of a war, no reason is known to us why the adjudication of her claim for her alleged losses should be abated by a court. Inasmuch as there has been neither legislative enactment nor decision by the supreme court interdicting the maintenance in our courts of actions arising outside of California, the trial court was confronted with no such inhibition so long as the calendar of the superior court was in such state as to enable it to try the cases so arising without unduly burdening the court and without defeating California residents of their rights to the trials of their causes. No such situation obtained then or now in either the trial or appellate courts.

For the same reason the court was justified in having denied the motions for a continuance. To have continued the actions would have been tantamount to an abatement. We find nothing in the record to show an abuse of the court's discretion.

The petition is denied.

MOORE, Presiding Justice.

W. J. WOOD and McCOMB, JJ., concur.