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District Court of Appeal, Second District, Division 1, California.


Civ. 16780.

Decided: May 02, 1949

Hildebrand, Bills & McLeod, and D.W. Brobst, all of Oakland, for appellant. E.E. Bennett, Edward C. Renwick, Malcolm Davis and W.J. Schall, all of Los Angeles, for respondent.

Plaintiff is the widow of a railroad brakeman who was employed by the defendant railroad company. He was killed in the state of Wyoming on November 4, 1944, while so employed.

Two days later defendant paid plaintiff $500, and plaintiff executed an agreement which reads as follows:

“Agreement and Contract

“Draft No. 77183–GEO-

“Received of the Union Pacific Railroad Company Five Hundred Dollars ($500.00) being an amount advanced to me on account of personal injuries and death of my husband, Wintford A. Pryor, while employed as a brakeman, at or near Walcott, Wyoming, November 4, 1944, while in the service of the said Union Pacific Railroad 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 State and Federal Courts of Rawlins, Carbon County, Wyoming, or State and Federal Courts of Laramie, Albany County, Wyoming.

“I Have Read The Above Agreement And Contract And Fully Understand The Same.

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

“Pearl Pryor,

“Administratrix of the Estate of

“Wintford A. Pryor, deceased.

“Laramie, Wyo.

“Nov. 6th, 1944.

“Witness to Signature:

“B.F. Muin, Laramie, Wyo.

“N.M. Johnston

“Frank H. Miller

“Don Dryor

“G.E. Alexander, Laramie, Wyo.

Nov. 6, 1944”

December 2, 1946, plaintiff was appointed administratrix of decedent's estate in the State of California. On December 6, 1946 she filed her complaint in the Los Angeles Superior Court alleging negligence as the cause of decedent's death and praying for damages; all in accordance with the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Plaintiff's pleadings terminated with a second amended complaint, to which the railroad company interposed its answer, alleging the agreement as a bar to the action in California.

Upon this issue the trial court rendered judgment for the defendant.

Plaintiff appeals and contends that the judgment should be reversed for two reasons:

1. The agreement purporting to waive venue rights under the Federal Employers' Liability Act is invalid;

2. The defendant waived its right to object to the venue as now laid by answering plaintiff's complaint.

The pertinent sections of the Federal Employers' Liability Act are as follows:

Section 51, which prescribes the liability for negligence of common carriers for injuries sustained by their employees engaged in interstate commerce.

Section 55, which in part provides: “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, shall to that extent be void *”.

Section 56, which applied to the facts in this case, confers jurisdiction upon the California Courts.

If the covenant to bring suit against the railroad company in the state of Wyoming only is prohibited by section 55 above, the judgment of the Superior Court must be reversed.

This question is of first impression in California, and has never been decided by the U.S. Supreme Court.

In the recent case of Akerly v. New York Central Railroad Company, 168 F.2d 812, U.S. Circuit Court of Appeals, Sixth Circuit (decided June 14, 1948), it is held that such a covenant is void because the venue provision in the federal law is inherently part of the employer's liability.

The case authority on this question is in sharp conflict, and in the Akerly case there was a vigorous dissent by one of the circuit judges. These conflicting cases are collected and referred to in the Akerly case as follows, 168 F.2d at page 814: “District Courts in Missouri, Illinois, and Minnesota, and the Supreme Court of Minnesota, have held that such contracts are valid. Herrington v. Thompson, D.C., 61 F.Supp. 903; Roland v. Atchison, Topeka & Santa Fe Ry. Co., D.C.Ill., 65 F.Supp. 630; Clark v. Lowden, D.C.Minn., 48 F.Supp. 261; Detwiler v. Lowden, 198 Minn. 185, 269 N.W. 367, 838, 107 A.L.R. 1054, 1059. District Courts in Illinois, Minnesota, and Iowa, and the Supreme Court of Utah, have held that such contracts are invalid. Sherman v. Pere Marquette Ry. Co., D.C., 62 F.Supp. 590; Fleming v. Husted, D.C.Iowa, 68 F.Supp. 900; Petersen v. Ogden Union Ry. & Depot Co. [110 Utah 573], 175 P.2d 744. Cf. Porter v. Fleming, D.C.Minn., 74 F.Supp. 378.”

Most of the cases which have enforced the covenant to limit the venue have proceeded upon the theory that venue and liability as provided by the statute are separate and distinct, and that venue is not included in liability. The problem is not to be solved by this simple process. There are times when venue is definitely part and parcel of liability. In Petersen v. Ogden Union Ry. & Depot Co., 110 Utah 573, 175 P.2d 744, the contract under consideration was the same as the contract here before us, with the exception of the names of the parties and inconsequential details. In that case plaintiff, for an advance of money on the liability of the railroad, agreed to bring his action only in the federal court, northern district of Utah. The Utah court held that while venue may be waived in proper cases, in this type of case it is a privilege which may not be contracted away in the face of Sec. 55 of the Federal Employers' Liability Act.

And in that case, in discussing the concept that venue may be part of liability, the court observed that in the federal court twelve jurors must agree before finding their verdict, whereas in the state courts of Utah the plaintiff need convince only six out of eight jurors to prevail.

Indeed in dealing with juries, the number necessary for a verdict in civil cases may have even more far-reaching consequences that the necessity of convincing six as in Utah, nine as in California, or twelve as in the federal courts. Any lawyer who has tried cases where twelve jurors must agree can recall instances when agreement in the jury room was reached as to negligence over the objections of one or two intransigeant jurors, who then proceeded to argue down damages so successfully that when the verdict was finally reached the amount of recovery was pitifully inadequate.

In the case at bar defendant is seeking to enforce a contract limiting plaintiff's case to trial in the federal courts, where twelve jurors must agree to a verdict, and to certain state courts in Wyoming where twelve jurors likewise must agree to a verdict. Section 12–128, Wyoming Compiled Statutes 1945 provides as follows: “Trial Jury.—The first twelve (12) persons who appear as their names are drawn and called and are approved as indifferent between the parties and not discharged or excused must be sworn and constitute the jury to try the issue.”

The plaintiff is now a resident of California and part of the liability of the railroad company is her right to bring the action in the proper courts of this state, in which the railroad does business. It would be more difficult for her to journey to Wyoming, employ counsel there, and plead her case in that state, than for the railroad company to defend it in California.

Moreover, this and other safeguards in the law have been placed there for the protection of employees and their dependents from what has been described as “the superior bargaining power” of railroads. Under the circumstances in this case it can be quite readily inferred that superior bargaining power was employed in obtaining the contract upon which defendant relies. It was presented for signature, together with $500 in cash, to a widow in the extremity of grief and financial necessity occasioned by the death of her husband.

Therefore that part of the contract here before us limiting venue of the action is void.

The same result is reached by reasoning from another legal premise.

The courts of California must assume jurisdiction of cases brought under the Federal Employers' Liability Act. Leet v. Union Pacific Railroad Company, 25 Cal.2d 605, 155 P.2d 42, 158 A.L.R. 1008. And in California provisions in contracts relating to the place of trial in civil actions for enforcement thereof are void. General Acceptance Corp. of California v. Robinson, 207 Cal. 285, 277 P. 1039. This case, and the cases therein cited, all have to do with actions ex contractu, and covenants as to venue in case of litigation arising out of the contract. The action here pending is ex delicto, and the agreement as to venue was made after the happening of the cause of action alleged.

There are statements in text and reference books to the effect that when there is an accrued cause of action agreements as to venue are valid and enforceable. 17 C.J.S., Contracts, § 229, p. 606; sec. 1725 Williston on Contracts, Revised Edition, Vol. 6. It would seem, however, that the underlying principle upon which the rule should be based is that whether or not the cause of action is accrued, jurisdiction of our courts is established by law and is not to be diminished “by the convention of the parties.” Meacham v. Jamestown, F. & C.R. Co., 211 N.Y. 346, 105 N.E. 653, 656, Ann.Cas.1915C, 851. See annotations L.R.A.1916D, 696; 59 A.L.R. 1445; 107 A.L.R. 1060. This view in no wise interferes with the power of a court, in proper cases, to change place of trial upon stipulation of the parties. In such situations the order is that of the court upon consent and agreement of the parties.

While it has not been argued in the briefs, the U.S. Circuit Court in Akerly v. New York Central Railroad Company, supra, came to the further conclusion that such contracts as these are void for want of consideration. Also in the case of Petersen v. Ogden Union Ry. & Depot Co., supra, the chief justice of the Supreme Court of Utah bases in part his concurrence with the majority of the court upon this ground. In the present case the contract recites that the payment of $500 was an advance and deductible from the amount if any of the final settlement. Hence there was no consideration.

In view of our determination that the contract limiting the venue in this case is void, it is unnecessary to decide plaintiff's contention that defendant waived the bar of the contract by appearance and answer. Under our system of pleading it is difficult to see how an answering party may be held to waive a plea in bar set up as part of an answer.

The judgment is reversed.

DRAPEAU, Justice.

WHITE, P.J., and DORAN, J., concur.