This appeal on questions of law is from an order of the Common Pleas Court of Huron County, Ohio, dismissing the action.
The petition plaintiff filed in the Common Pleas Court on November 15, 1961, alleges a cause of action for personal injuries against the defendant railroad for its alleged negligence and upon the authority of and under the provisions of the Federal Employers' Liability Act, Title 45, Section 56, U.S. Code. Plaintiff lives in Willard, Huron County, Ohio, the place where the injuries were sustained and through which defendant's railroad line operated. Answer to the petition was filed on December 29, 1961, in which it is averred in paragraph 8 thereof as follows:
"8. It further avers that this court should not take jurisdiction of and plaintiff should not be permitted to maintain this action for the reason that at the time of the commencement hereof there was pending an identical action to this between the same parties, for the same cause of action and seeking the same relief, in the United States District Court for the Northern District of Ohio, Western Division, titled "Oakley Barnett, Plaintiff, vs. Baltimore Ohio Railroad Company," being cause No. 8406 Civil; that plaintiff initially instituted said action against the defendant on August 28, 1959, in the United States District Court for the Northern District of Ohio, Eastern Division, from which it was transferred on March 15, 1960, to the Western Division; that said action proceeded to trial on March 13, 1961, and a jury was duly impaneled, after which, at the election of the plaintiff, the jury was discharged and the cause continued for trial; that on November 8, 1961, plaintiff filed an amended complaint in said action which is identical in all respects to the petition herein; and that said action is still pending in said United States District Court."
A reply was not filed to the answer. Thereafter, and not until May 23, 1963, defendant railroad filed a motion for an order dismissing the petition for the reason that the pleadings on file clearly show that an identical action between the same parties, plaintiff and defendant, was filed prior to this action and is pending in the United States District Court, Toledo, Ohio. The motion is supported by affidavit of counsel for the railroad and the case in the federal court is identically titled, being *Page 347 cause No. 8406 on the civil docket of that court. The affidavit further discloses that the federal court, upon motion of plaintiff, refused to dismiss the case in that court. It appears also that a trial date has not been assigned for hearing of the case in the federal court. Plaintiff-appellant and defendant-appellee will hereinafter be referred to as plaintiff and railroad.
Upon the pleadings, the motion to dismiss, and affidavit in support thereof, we are presented with the single question for decision, to wit: Can an Ohio Court of Common Pleas dismiss the action of plaintiff filed under the provisions of the Federal Employers' Liability Act solely upon the ground that an identical case is pending in the Federal District Court between the same parties?
The provision of the Federal Employers' Liability Act pertinent hereto, Title 45, Section 56, U.S. Code, reads in part as follows:
"Under this chapter an action may be brought in a 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."
Where a like action is filed in the federal court and the state court, abatement of one or the other of the actions is not permitted as stated in 1 Corpus Juris Secundum, 101 and 102, as follows:
"As a general rule, the pendency in a federal court of a personal or transitory action, although between the same parties and for the same cause of action or relief, is not ground for abating a subsequent action in a state court, and, conversely, the pendency of such an action in a state court cannot be pleaded in abatement of a subsequent similar action in a federal court; for the reason that each court derives its authority from a separate and distinct sovereignty."
The general rule where both the state and federal courts are within the same territorial jurisdiction is stated in 1 Corpus Juris Secundum, 103, as follows:
"Even though both courts have the same territorial jurisdiction, that is they both sit in the same state, and the state *Page 348 court is within the district covered by the jurisdiction of the federal court, by the weight of authority, they belong to foreign jurisdictions in that each derives its authority from a different sovereignty, and the pendency of a prior action, between the same parties for the same cause of action, in either the state or federal court cannot be pleaded in abatement of a subsequent action in the other; and this rule is not affected by the provisions of the Federal Employers' Liability Act, giving the federal and state courts concurrent jurisdiction of actions under that statute."
See, also, 21 Corpus Juris Secundum, 816; 1 American Jurisprudence (2d), 58, Section 18.
Also in 1 American Jurisprudence, 41, it is said:
"Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. * * * A like rule applies * * * where one is in a federal district court and the other in a state court."
Although the case of Kline v. Burke Construction Co. (1922),260 U.S. 226, did not involve the Federal Employers' Liability Act, the question of concurrent jurisdiction is resolved by Justice Sutherland in the opinion of the court, as follows:
"But a controversy is not a thing, and a controversy over a mere question of personal liability does not involve the possession or control of a thing, and an action brought to enforce such a liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of resadjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case. The rule, therefore, has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded. Stanton v. Embrey, 93 U.S. 548;Gordon v. Gilfoil, 99 U.S. 168, 178; Hunt v. New York CottonExchange, 205 U.S. 322, 339; Insurance Company *Page 349 v. Brune's Assignee, 96 U.S. 588, 592; Merritt v. AmericanSteel-Barge Co., 79 Fed., 228; Ball v. Tompkins, 41 Fed., 486;Holmes County v. Burton Construction Co., 272 Fed., 565, 567;Standley v. Roberts, 59 Fed., 836, 844-5; Green v. Underwood, 86 Fed., 427, 429; Ogden City v. Weaver, 108 Fed., 564, 568;Zimmerman v. So. Relle, 80 Fed., 417, 419-420; Baltimore OhioR. R. Co. v. Wabash R. R. Co., 119 Fed., 678, 680; GuardianTrust Co. v. Kansas City Southern Ry. Co., 146 Fed., 337, 340;Guardian Trust Co. v. Kansas City Southern Ry. Co., 171 Fed., 43; Woren v. Witherbee, Sherman Co., 240 Fed., 1013; StewartLand Co. v. Arthur, 267 Fed., 184."
See, also, Fradella v. United Marine Contracting Corp.,36 F.2d 510.
In Dennison Brick Tile Co. v. Chicago Trust Co. (1923), 286 F., 818, the question of conflict of jurisdiction between state and federal courts was presented wherein a suit was filed in the state of Ohio and thereafter a suit was filed in the Federal District Court for the Northern District of Ohio. While this case involved an action on a real estate mortgage and other liens thereon, Circuit Judge Knappen recognized the general rule, and on page 819 stated:
"In Kline v. Burke Construction Co., 43 Supp. Ct., 79, 67 L. Ed., , lately decided by the Supreme Court (and since the instant case was brought into this court), the distinction between actions in personam and actions in rem, as regards the effect of prior assertion of jurisdiction by state or federal courts is plainly pointed out, viz. that the pendency in a federal court of an action in personam is not ground for abating a subsequent action in a state court, or vice versa — each court being at liberty to proceed to final judgment, such judgment first rendered being binding upon both parties; but where the action is one in rem, that court, whether state or federal, which first acquires jurisdiction over the res has exclusive authority to control and dispose of it."
Shortly after the passage by Congress of the Federal Employers' Liability Act, the Supreme Court was confronted with its construction in Second Employers' Liability Cases (1912).223 U.S. 1, Justice Van Devanter delivering the opinion of the court. Therein it was held that the regulations in the act superseded the laws of the several states insofar as the latter cover *Page 350 the same field; that rights arising under the regulations prescribed by the act may be enforced as of right in the courts of the states when their jurisdiction, as fixed by local law, is adequate to the occasion; that a state court cannot refuse to enforce the remedy given by an act of Congress in regard to a subject within the domain of Congress on the ground of inconvenience or confusion; that the system of jurisprudence of the state and under the United States together form one system which constitutes the law of the land for the state; that when Congress adopts the act, it speaks for all the people and all the states and thereby establishes a policy for all, and the courts of a state cannot refuse to enforce the act on the ground that it is not in harmony with the policy of the state.
On page 56 of the opinion it is said:
"This is emphasized by the amendment engrafted upon the original act in 1910, to the effect that `The jurisdiction of the courts of the United States under this Act shall be concurrentwith that of the courts of the several states, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.' The amendment, as appears by its language, instead of granting jurisdiction to the state courts, presupposes that they already possessed it. * * *
"* * * that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the Act of Congress and susceptible of adjudication according to the prevailing rules of procedure."
Many cases involving the act have been adjudicated in the Common Pleas Courts of Ohio. In the case at bar all the local state requirements of jurisdiction are present. The plaintiff lives in Huron County, Ohio, where the injury occurred, giving rise to a cause of action pertaining to the operation of the railroad in that county. Both parties are in court and have a right to trial. Here arises, then, the contention of the railroad, and accepted by the Common Pleas Court, that the case should be *Page 351 dismissed solely on the ground that an identical action is pending between the same parties in a federal district court situated in Lucas County, Ohio.
It is said in Butts v. Southern Pac. Co. (1947),69 F. Supp., 895:
"Baltimore Ohio Railroad Co. v. Kepner, 1941,314 U.S. 44, 62 S. Ct., 6, 86 L. Ed., 28, 136 A. L. R., 1222, andMiles v. Illinois Central R. Co., 1942, 315 U.S. 698,62 S. Ct., 827, 86 L. Ed., 1129, 146 A. L. R., 1104, regardless of their precise holdings, say enough to preclude a district judge, once the statutory criteria of venue are satisfied, from dismissing an action under the Federal Employers' Liability Act on the ground that the action constitutes an unlawful burden upon interstate commerce or on the ground of forum nonconveniens."
Can the refusal by the state court in the case at bar to exercise the jurisdiction and duty of adjudicating the case under the terms of the act be sanctioned "as against an otherwise valid excuse" as stated by Holmes, J., vaguely inDouglas v. New Haven Hartford Rd. Co., 279 U.S. 377.
That case involved a venue statute of the state of New York (clearly distinguishable from the case at bar), wherein the Supreme Court construed the statute of New York as giving the court of New York discretion to "entertain" the case when the act of Congress "does not purport to require state courts to entertain suits arising under it, but only to empower them to do so, so far as the authority of the United States is concerned."
The opinion cites Second Employers' Liability cases, supra, in support of such language and it is apparent therefore that the holding was based upon the declaration in such case as above referred to that the rights arising under the act of Congress 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 Missouri, ex rel. Southern Rd. Co., v. Mayfield,Judge, 340 U.S. 1 (a divided court), the Douglas case was cited by Frankfurter, J., with reference to an issue involved therein as to the doctrine of forum non conveniens. Both of the decisions involving a statute of the state on venue and said doctrine of forum non conveniens are wholly remote from any issue in the case at bar as well as the privileges and immunity clause of the federal Constitution. *Page 352
In Loftus v. Penna. Rd. Co., 107 Ohio St. 352, dismissed in266 U.S. 639, the Douglas case was not mentioned but it was held that the act is subject to a venue statute of the state of Ohio. Pertinent to the facts in the case at bar it was said in that case on pages 356 and 357 as follows:
"Jurisdiction must not be confounded with venue. Jurisdiction is the right to hear and determine a cause, but the term is used in the sense of power rather than in the sense of selection. There is no doubt that Courts of Common Pleas in Ohio have the right to hear cases of injuries to person and property and of wrongful death by railroad companies, but it does not follow that Ohio courts must, and at all events, hear all cases which may be tendered. In some of the former decisions of this court the language concerning the word "jurisdiction" has not been carefully selected, thereby leading to some misapprehension. Jurisdiction may exist to hear and determine causes of a certain class, and yet that jurisdiction may not be permitted to attach to certain cases by reason of limitations of venue."
The second paragraph of the syllabus, the law of the case, holds that it is the duty of the courts of this state to entertain causes arising under the Federal Employers' Liability Act subject to the limitations contained in the Ohio statute pertaining to venue.
We have found no cases in Ohio or the courts of the United States which hold that a state can relinquish its duty to adjudicate an action under authority of Federal Employers' Liability Act, where, as in the case at bar, coequal and concurrent jurisdictional facts exist. In the early Ohio Circuit Court case of Barr v. Chapman, 5 C. C., 69, 3 C. D., 36, where like suits were pending in the Ohio court and a federal court, it was held that after the parties are served with process in the Ohio suit prior to the commencement of the filing of a suit in the federal court, the Ohio court had the power to proceed to hear and adjudicate the case notwithstanding the continuing pendency of the case in the federal court. On page 75 of the opinion it is said:
"We are of the opinion then, that these two cases are standing in different courts — each having the right and authority to hear and determine the same — and the fact that one of the courts first obtained service on all of the necessary parties, *Page 353 does not of itself oust the other court of its jurisdiction, when all the parties are subsequently before that court. Of course, this may work a hardship to suitors, who will thus be put to the trouble and expense of litigating what are practically the same questions in two or more different tribunals at the same time. And cases may be imagined where great difficulty and conflict might arise, as where wholly different judgments are rendered by the different courts on the same day. But practically this is not at all likely to occur; and courts are so constituted that such conflicts may and will be in some way prevented or corrected.
"But if it be true, as seems to be the case, that the final decision of the court first adjudicating the matter, is the one which is valid and binding on the parties, such judgment might be pleaded in bar of the other case, so far as it operates as an adjudication of the questions therein decided."
The case of Johnson v. New York O. W. Ry. Co. (1931),3 F. Supp., 80, is directly applicable to the case at bar on fact and law involving the liability act wherein it is held that an action for personal injuries is transitory, and a prior suit in a state or federal court in the same state furnishes no ground for plea of abatement to a second suit; and the fact that a prior suit in personam has been instituted in the state or federal court furnishes no ground for staying prosecution of action in either court; that the defendant could not, understate court rules, dismiss an action under Federal Employers' Liability Act on the ground that another action was pending between the same parties for the same cause, since, under statutes, practice and procedure of federal courts, pendency of such action is not ground for dismissal, and that under the act, plaintiff is not prevented from bringing more than one action thereunder for the same cause in different courts. Cited and followed in Maryland Cas. Co. v. Glassell-Taylor Robinson,68 F. Supp., 897, 899, Metro Corrugated Containers, Inc., v.Owens-Illinois Glass Co., 185 F. Supp., 359, 361.
The Supreme Court of Utah in Peterson v. Ogden Union Ry. Depot Co. (1946), 110 Utah 573, 175 P.2d 744, by a cogent decision in the opinion of Wolfe, J., said at page 576:
"Ordinarily venue statutes are for the convenience of the parties. They are to restrict the suit to those courts which *Page 354 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 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: *Page 355
"`In the legislative history of section 6, the provision that removal may not be 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.
"* * *
"`* * * 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.'"
The provisions of the Federal Employers' Liability Act, Title 45, Section 56, U.S. Code, as quoted above, originally contained an additional clause reading:
"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."
This clause was deleted by amendment and by act of June 25, 1948, being Section 1445 (a) Title 28, the matter of removal provides as follows:
"A civil action in any state court against a railroad or its receivers or trustees, arising under section 51-60 of Title 45, may not be removed to any district court of the United States."
The Supreme Court considered the prohibition of such removal in Baltimore Ohio Rd. Co. v. Kepner, 314 U.S. 44, affirming137 Ohio St. 409; and in Miles v. Illinois Central Rd. Co.,315 U.S. 698. By these decisions it is established that a state court cannot enjoin on the ground of inconvenience or expense to a railroad a citizen of the state from prosecuting an action under the act in a state court of another state having jurisdiction under the act, and that a state court may not validly exercise its equitable jurisdiction to enjoin a resident *Page 356 of the state from prosecuting a cause of action arising under the act in a federal court of another state where the act gave venue on the ground that the prosecution in that district is inequitable, vexatious and harrassing to the carrier.
The law of the two cases obtains, notwithstanding the prolix, erudite dissents therein by Frankfurter, J., who mentions theDouglas case, supra, opining as the heir apparent of Holmes, J., and peculiar to the avant-garde thinking, popular in the school of judicial activists whereby a legislative act is construed in substance and intention to suit the pragmatistic pontifications of the judge.
It is self-evident that the dismissal by the competent state court in the case before us is tantamount to and, indeed, actually constitutes and works the practical result of a removal to the Federal District Court, contrary to the mandatory provision of the statute prohibiting removal to the federal court.
It is the dissenting conclusion therefore of this member of the court that in the case before us, in the absence of a statute of venue to the contrary or some other "valid excuse" not shown in this case, the general rule on concurrent jurisdiction should obtain, and the judgment of dismissal in the Common Pleas Court should be reversed and the case remanded to that court for further proceedings according to law. *Page 357