I concur in the result arrived at by Mr. Justice WOLFE, but by an entirely different process.
The prevailing opinion chooses to follow the rule of interpretation stated in Sherman v. Pere Marquette Ry., D.C.,62 F. Supp. 590, although it seems to concede the weight of authority is the other way. While I think the right result is attained by Mr. Justice WOLFE, I do not arrive at that conclusion by the same reasoning. To begin with, I do not believe that Congress ever enacted legislation designed to invite litigants to "shop around" the courts to see which was having bargain day. Nor do I believe that either litigants or the public should be invited to take that view of either the courts or the administration of justice. The whole reasoning of the opinion is that the word "liability" as used in Sec. 5 of the Federal Employers' Liability Act has a meaning different from its usual legal connotation although there is no glossary or other definition to the term in the Act. The reasoning is that since by Section 6 the employee is permitted to bring his suit ofttimes in any one of many courts in several jurisdictions, the word "liability" in Section 5 must be expanded to include not only the liability to respond in damages for the injury, but perhaps twenty other liabilities to be sued for the same injury in twenty different courts in several different jurisdictions.
One of the reasons for this construction as set forth by Mr. Justice WOLFE, seems to me better reason for a different construction. As Belial said:
"I should be much for open war, if what was urged main cause did not dissuade me most." *Page 582
It is argued that the term "liability" in Section 5 must have been intended to include the right to maintain a suit in a state court, because that right is granted by Section 6, and the opinion then points out that the Act originated and passed the House with Section 5 using the term "liability" as is, and thereafter Section 6 was amended on the Senate floor to prevent the regular removal clause from applying to an action under the act. It would seem therefore that when the word "liability" was written into Section 5 its use and connotation was not in the light which it contended is given it because of the present wording of Section 6.
A rather thorough study of the general law in reference to venue contracts reveals that there is ample and good authority to the effect that the contract here involved should not be enforced.
The great weight of authority holds that contracts which limit the place where or the courts in which an action may be brought are unenforceable as against public policy. See Annotations as: L.R.A. 1916D, 696; 59 A.L.R. 1445; 107 A.L.R. 1060.
There are notable exceptions to this rule. See Greve v.AEtna Livestock Ins. Co., 1894, 81 Hun. 28, 30 N.Y.S. 668;Syracuse Plaster Co., Inc. v. Agostini Bros. Bldg.Corporation, 1938, 169 Misc. 564, 7 N.Y.S.2d 897; Daley v.People's Building, Loan Savings Ass'n, 1901, 178 Mass. 13,59 N.E. 452; Mittenthal et al. v. Mascagni, 1903, 183 Mass. 19,66 N.E. 425, 60 L.R.A. 812, 97 Am.St.Rep. 404. Also there is a line of cases which do not follow the general rule if the venue contracts were made after the cause of action arose. See Gitleret al. v. Russian Co. et al., 124 A.D. 273, 108 N.Y.S. 793; Detwiler v. Lowden, 198 Minn. 185, 269 N.W. 367, 838, 107 A.L.R. 1054, 1059; Clark v. Lowden et al., 48 F. Supp. 261;Herrington v. Thompson, et al., (June 1945) 61 F. Supp. 903. The distinction between venue contracts made before and after the cause of action arose is mentioned in 17 C.J.S., Contracts, § 229, p. 605 and § 1725, Williston on Contracts, Revised Edition, Vol. 6. Each *Page 583 of the text authorities cites only Detwiler v. Lowden, supra, as authority for the distinction.
The reason ofttimes given by the courts which do not enforce venue contracts is that they are attempts to oust the courts of jurisdiction which ouster is contrary to public policy. This is the same reason usually given for holding contracts to arbitrate are unenforceable. It has been suggested that this rule originated in early history when judges were dependent on fees for their livelihood as they had no fixed salaries. It was therefore to their personal interest to prevent the ouster of their jurisdiction. See authorities cited and discussed in Mr. Justice Wolfe's concurring opinion in Latter v. Holsum BreadCo., 108 Utah 364, 160 P.2d 421.
The selfish motives of judges may have accounted for some of the very early decisions holding venue contracts unenforceable but cannot account for the decisions made after the income of judges was in no wise dependent on fees received from the cases. It is probable the real underlying reason for holding some venue contracts "contrary to public policy" has been the tendency of courts to protect a party to a contract who, when the contract was made, was on a lower level of advantage than was the other party. A great number of the cases deal with insurance contracts. Courts for generations have recognized the disparity between the insured and the insurance company and have used various devices to equalize their position by protecting the insured from those clauses in the contract which he probably did not know were there or of which he did not realize the legal significance.
It is very probable that many of the decisions refusing to enforce contracts holding venue clauses are the natural result of courts trying to protect a party less able to guard his own interests when he contracts with a party who occupies a distinctly advantageous position. Examples of such contracts are those made between insurance companies and ordinary individuals and those made between huge corporations which have competent legal staffs and its employees. Especially would this solicitude of the law for *Page 584 disadvantaged persons be manifest when the contract was between an employee who was by the injury made less adequate to attend to his interests and a fully competent employer.
Cases which hold venue contracts not against public policy and therefore enforceable usually involve contracts the parties to which were at the time of making same on about equal footing and the contract under all the circumstances was obviously reasonable. An excellent example is Mittenthal v. Mascagni, supra. The parties to the contract were both domiciliaries of Italy. The contract provided for a concert tour through several other countries, including the United States. The parties agreed that any disputes arising under the contract would be settled in the courts of Italy. Under the circumstances of the parties in that case the venue clause was obviously reasonable and for the advantage of all concerned, and the contracting parties were on the same level of advantage when they made the contract.
The courts in those cases which distinguish between venue contracts made before the cause of action arose and those made after and enforce the latter also in nearly ever case look to the circumstances of the parties and the terms of the contract. While the decisions were not made to turn on that point, yet the court saw fit to consider the reasonableness of the contracts inDetwiler v. Lowden, supra; Herrington v. Thompson, supra;Roland v. Atchison, Topeka Santa Fe Ry. Co., D.C., April 1946, 65 F. Supp. 630; and Clark v. Lowden, supra.
While many courts have consciously differentiated between provisions in contracts made before as distinguished from after the cause of action arose, when the whole field is surveyed it appears that the courts in differentiating them were enfluenced rather by the relative level of advantage of the parties to the contract and the reasonableness of the venue contract under the circumstances.
The writer does not see any sound reasons, based upon the time element alone, for enforcing one class and not the other. However most courts agree that venue contracts *Page 585 which are made between parties widely different in their levels of vantage and which unreasonably restrict a party in his choice of the court in which he may sue or be sued should not be enforced.
This reasoning is apparently in conflict with that of the courts in several of our sister states and some of the lower federal courts. See the Detwiler cases, Clark, Herrington andRoland cases, supra. However, in each of these cases the contract merely restricted the employee to the courts, both state and federal, in the state where he was injured or where he was a resident at the time of the injury. Such contracts are not nearly so restrictive as the one in the case at bar. The reasonableness of the contracts involved in those cases may have materially influenced the reasoning and decisions therein.
The agreement involved in this action invites some analysis. It is a peculiarly worded instrument. It begins by asknowledging the receipt of $500.00
"as an advance to me on account of personal injuries."
This would seem to imply an acknowledgment of liability, but the amount thereof undetermined. The instrument then reads:
"such payment not to be an admission of liability and to be deducted from any final settlement, which might be made."
How could it be an advance on account and yet not admissionof liability? Note also that in the agreement set out in haec verba by Mr. Justice WOLFE there is a comma just before the wordsuch with which our last quote begins, and no further punctuation until the comma after settlement as shown in our quote. This suggests that the words
"* * *, such payment not to be an admission of liability and to be deducted from any final settlement, * * *"
is to be treated as one thought and clause. (Italics added.) Does the word not apply both to the "admission of liability" and to the "deduction from final settlement?" To illustrate the thought, does it mean "such payment not to be an *Page 586 admission of liability and [not] to be deducted from any final settlement," or should it be read, "such payment not being an admission of liability [but is] to be deducted from any final settlement?" Is not the first one the proper construction, especially since the next paragraph in the agreement says that the consideration for the payment is the limitations imposed by the agreement?
Now note the peculiar wording in the second paragraph of the agreement:
"It is agreed that as consideration for such payment, * * *, 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 District Court of the United States, Northern Division."
Of course the comma after the word understand should properly have been placed after the word might. Note, it speaks of being "brought in jurisdictions" and "not be brought in any jurisdiction." Certainly to the lay mind, jurisdiction is not synomymous with court. Normally it does not have the connotation in the law. Thus when we speak of "the law in this jurisdiction" we mean in this state, — or the territorial limits covered by the court. The provisions of the statute as to jurisdictions, (Section 6) of which the signer recites he was fully aware, says action may be brought in three federal jurisdictions, the district of plaintiff's residence, the district where the accident occurred, and any other district in which defendant does business. It also may be brought in a competent state court in three state jurisdictions: in the district of plaintiff's residence, or in the district where the accident occurred, or in any district in which defendant does business.
Now the agreement reads, "any jurisdiction outside of" (Italics mine). If the idea to be conveyed was to confine an action to a specific court, the normal and natural expression would be to use the word except instead of outside. The wordoutside, connotes space, territorial, geographic areas or boundaries. Only to a most etymological mind *Page 587 would it suggest the meaning except, or but. The use ofjurisdiction instead of court, and outside instead ofexcept or any other but, suggest either an original meaning different from that now urged by defendant and taken by the trial court, or a very clever manipulation of words to conceal hidden meanings.
I think the agreement means that plaintiff agreed he would not bring a suit except within the federal district or jurisdiction where the accident occurred. If this be correct, plaintiff in bringing his action in the District Court of Weber County is within the terms of the agreement, and therefore the question of its validity need not be considered.
Assuming however that the agreement should be construed as contended by defendant, I still agree that the judgment should be reversed. I reach this conclusion not upon the grounds assigned by Mr. Justice WOLFE, but upon the ground that such contracts are void as against public policy.
As to the policy in this state, the State Constitution, Art. 1, Sec. 11 declares:
"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party."
I recognize that this section is designed as a limitation on the legislature particularly, and also on the executive department, of the state and its branches and subsidiaries, to prevent them from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with legal remedies. Brown v. Wightman, 47 Utah 31,151 P. 366, L.R.A. 1916A, 1140. But at the same time it is a constitutional recognition that the right to apply to the courts for redress is a substantial right and not lightly to be denied, even by contract. It recognized and established this as the policy of the state. We had *Page 588 occasion to take some note of this policy in Bracken v.Dahle, 68 Utah 486, 251 P. 16, 20. There it was sought to bar plaintiff from maintaining a suit because it was contended that by his contract he had waived that right. Therein we said:
"Whatever might have been the rule, had plaintiff expressly and unequivocally agreed that he would not sue the defendant * * * need not be determined here. Whether defendant is immune from suit in the present action depends upon a fair and reasonable interpretation of the language above quoted upon which appellant relies. * * *. It is going a long way to assume that plaintiff intentionally and deliberately waived the ordinary and usual remedy to which a party is entitled for the redress of a wrong. Such waiver should at least be expressed in the most unequivocalterms. If the language used is equivocal, it certainly ought not to be interpreted in favor of the party insisting upon the waiver. The right to apply to the courts for relief for the perpetration of a wrong is a substantial right. If there is any doubt as to the meaning of the language employed, the doubt should be resolved in favor of the party claiming the right." (Italics mine.)
Since the majority of court has arrived at their conclusions upon other grounds no useful purpose would be subserved by prolonging this opinion. I think the great weight of authority, as well as the indicated policy of the state, as shown by the constitution and the pronouncements of the court, are to the effect that this contract, if interpreted as the trial court interpreted it, should not be enforced.
It follows that I concur in reversing the judgment and in the order made.