I cannot agree with the assumption made by Mr. Justice Carter that the motions of the railroad company to continue the trial of the. two actions were denied upon the merits. The carrier contends that the adverse rulings were made solely because of the trial judge’s conclusion that the Federal Employers’ Liability Act (45 U.S.C.A., § 51 et seq.) required the court to accept jurisdiction and proceed with the trials, regardless of any prejudice suffered by the employer as the result of its inability to produce witnesses without impairing the war effort. The plaintiffs do not claim that the rulings were made upon the merits, nor do they challenge the railroad company’s statements to the contrary.
The motions were made upon the grounds, generally stated, that it was prejudiced by the absence of witnessses who could not then be produced without serious interference with the war effort, and that the trial of the cases on the date then set would place an undue burden upon interstate business. Facts tending to support the company’s position were presented by means of three affidavits which included various data concerning the carrier’s wartime activities. The plaintiffs filed no affidavits challenging these facts. They have maintained a consistent position that the facts stated by the railroad company are quite immaterial and that the court was without *623authority to grant the motions unless the employer “had an absolute right to abate the California proceedings.” (Eesp. Brief, p. 21.)
In further explanation of what occurred in the trial court at the time the motions were made, the company states: The motions to abate and the motions for continuance were not based primarily on the Oregon decrees, but were rather addressed to the discretion of the trial court. The trial court erroneously interpreted the Miles case and decided that it had no power to abate or continue the California proceedings no matter what equitable considerations might exist. It was that erroneous view which led the trial court to make orders which appellant contends constituted an abuse of the trial court’s discretionary powers, entirely without any consideration of the validity or effect of the Oregon decrees. As has been pointed out, it was decided by the United States Supreme Court in Douglas v. N. Y., N. H. & H. R. Co., 279 U.S. 377 [49 S.Ct. 355]; 73 L.Ed. 747, and again in the Miles ease (Miles v. Ill. Central R. R. Co., 315 U.S. 698 [62 S.Ct. 827]; 86 L.Ed. 1129) that the Federal Employers’ Liability Act does not require state courts to entertain jurisdiction of suits arising under it, where the litigants are non-residents, and the cause of action arose elsewhere. Therefore, contrary to the trial court’s impression, it was the duty of the trial court to consider the equities of the case and to determine whether under all the circumstances the California court should assume jurisdiction.”
The decisions of the Supreme Court of the United States do not compel the conclusion that a state court is powerless to refuse jurisdiction of any action brought under the Federal Employers’ Liability Act (45 U.S.C.A., §51). On the contrary, in its most recent interpretation of that legislation, five members of the court were of the view that the venue provision (section 6) does not compel a state to open its forums to all cases arising under the statute under all circumstances. (Miles v. Illinois Central R. R. Co., supra.) And consistent with that view are a number of prior decisions. McKnett v. St. Louis & S. F. Ry. Co., 292 U.S. 230 [54 S.Ct. 690, 78 L.Ed. 1227]; Denver & Rio Grande W. R. R. Co. v. Terte, 284 U.S. 284 [52 S.Ct. 152, 76 L.Ed. 295]; Douglas v. New York, New Haven & Hartford R. R. Co., 279 U.S. 377 [49 S.Ct. 355, 73 L.Ed. 747]; Michigan Cent. R. R. Co. v. Mix, 278 U.S. 492 [40 *624S.Ct. 207, 73 L.Ed. 470]; Hoffman v. Missouri ex rel. Foraker, 274 U.S. 21 [71 S.Ct. 905, 47 L.Ed. 485]; Atchison, Topeka & Santa Fe Ry. Co. v. Wells, 265 U.S. 101 [44 S.Ct. 469, 68 L.Ed. 928]; Davis v. Farmers’ Co-operative Equity Co., 262 U.S. 312 [43 S.Ct. 556, 67 L.Ed. 996].)
In the Miles ease, Justices Frankfurter, Roberts, Byrnes’ and Chief Justice Stone were of the opinion that “section 6 did not give the states compulsive jurisdiction, ” and Justice Jackson, in sharing that view, stated: “It is very doubtful if any requirement can be spelled out of the Federal Constitution that a state must furnish a forum for a non-resident plaintiff and a foreign corporation to fight out issues imported from another state where the cause of action arose.” Under this construction of the statute, it was the duty of the trial judge in the present litigation to hear and determine, upon the merits, the railroad company’s motions for a continuance, exercising a sound discretion as to whether, upon the facts' presented, the trials of the two actions should be continued for either an indefinite or a stated period.
In my opinion, therefore, the judgments should be reversed with directions to the trial court to proceed accordingly.
Curtis, J., and Shenk, J., concurred.
Appellant’s petition for a rehearing was denied January 25, 1945. Shenk, J., Edmonds, J,, and Spence, J., voted for a rehearing.