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transitory. Huntington v. Attril (146 U. S. 657, 13 S. Ct. 224); Dennick v. Central R. Co. (103 U. S. 11). The liability in such an action may be enforced and the action may be pursued in the courts of any State where jurisdiction can be obtained over the defendant T. & P. R. Co. v. Cox (145 U. S. 593). In this respect the Federal Employers' Liability Act was merely declaratory of the common law and with reference to the courts of the various States, gave the plaintiff in such an action no greater rights than he would have possessed at common law. It will be noted that the only grant of jurisdiction in section 6, which is the venue provision (45 U. S. C. A. 56), is that to the courts of the United States. The section provides that an action may be brought "in a district court of the United States" in three places. It is the Federal courts that are given jurisdiction (1) at the residence of the defendant, or (2) where the cause of action arose, or (3) where the defendant shall be doing business. Nothing is said about the jurisdiction of the State courts in these various places and no attempt is made to confer any jurisdiction upon the State courts. The next sentence provides that the jurisdiction of the courts of the United States shall be concurrent with that of the several States. Here, again, the grant of jurisdiction is confined to the Federal courts and no attempt is made to enlarge, restrict, or alter the jurisdiction of the courts of the States, except to prevent removal.

The general rule with reference to transitory actions at common law was well expressed by the Supreme Court of the United States on March 21, 1881, in the leading case of Denick v. Central Ry Co. (103 U. S. 11).

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In this case the Supreme Court of the United States held that the action could be lodged at any place where service could be obtained and process could be served on the defendant, and Mr. Justice Miller used this significant language: "It would be a very dangerous doctrine to establish that the liability can be enforced in no other State but that where * the transaction occurred." The Mondou case (223 U. S. 1, 32 S. Ct. 169), generally known as the Second Employers' Liability Act case, establishes that Congress did not intend to enlarge the jurisdiction of State courts or to make any definite attempt to confere jurisdiction upon the State courts because, in the course of the opinion, it was said: *** * * We deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate 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." It is definitely established that whether State courts must and should accept jurisdiction of actions under the Federal Employers' Liability Act is solely a matter of State law and State policy without any element of Federal coercion. See Douglas v. New York, New Haven & Hartford R. Co. (279 U. S. 377, 49 S. Ct. 355, 73 L. Ed. 747); Hoffman v. State of Missouri ex rel. Foraker (274 U. S. 21); Walton v. Pryor (276 Ill. 563, L. R. A. 1918E 917); Taylor v. Atchison, Topeka & Santa Fe (272 Ill. App. 457, 11 N. E. (2d) 610).

It has also been held that the legislative body which creates a transitory cause of action cannot restrict the enforcement thereof solely to the courts of its own creation. The Supreme Court of the United States in two decisions held that the legislature, having created a transitory cause of action, could not prevent the person owning the claim or cause of action from enforcing it in any court where service of process could be obtained and whose jurisdictoin was adequate to the occasion. See Tennessee Coal, Iron & R. Co. v. George (233 U. S. 354, 34 S. Ct. 587); Atchison, Topeka & Santa Fe Ry. Co. v. Sowers (213 U. S. 55, 29 S. Ct. 397). It has been urged that the Miles and Kepner cases made a radical and drastic change in the interpretation of the Federal Employers' Liability Act. This is definitely not true. These two cases merely effectuated an interpretation that has been uniformly placed on the jurisdiction and venue provisions of the Federal Employers' Liability Act since its original enactment. One of the leading cases with reference to the jurisdiction of Federal courts thereunder is Schendel v. McGee (8 Cir., 300 F. (2d) 273), decided in the year 1924. It was there held that a Federal court could not decline jurisdiction of such an action because it happened to be burdensome to the court or the defendant or interstate commerce. The court said:

"We assume Congress could provide that actions in the Federal courts should be brought at places where the same would not constitute a burden on commerce, but Congress has not done so. It has given the right under the Federal Em

ployers' Liability Act, hereinbefore discussed, to an injured party, or in case of his death to the duly constituted representative, to maintain an action for damages in the courts of the district where the defendant is doing business at the time the suit is commenced. We are not concerned with the justice or the wisdom of such legislation. It being the law, it is a court's duty, where there is jurisdiction, to take and retain that jurisdiction and try the case."

In the case of Schendel v. McGee, supra, the court also said: "Congress has not given to the courts the right to exercise discretion as to whether the case shall be prosecuted, or such prosecutions refused, because the same may be a burden on commerce."

Thus it clearly appears that the duty of the Federal courts to accept jurisdiction of an action under the Federal Employers' Liability Act has always been regarded as a mandatory one. This was thoroughly established long before the Miles and Kepner decisions, which merely held that this duty could not be destroyed by according extraterritorial force to injunctions whether issued by a State or Federal court in a distant forum.

The jurisdiction and venue provisions are vital to the Federal Employers' Liability Act. It is now sought to emasculate them and to inject an element of chaos and confusion into these provisions and thus to render inadequate the remedy accorded by this legislation. Under the proposed amendment no employee would be free to exercise his choice of forum; in doing so he would subject himself to preliminary motions and appeals and endless delay over jurisdictional and venue problems; the definite rules for the guidance of the bench and bar would be destroyed; and instead of certainty and definite guidance there would soon be a multiplicity of conflicting precedents confronting the plaintiff and the defendant and their attorneys.

The right of access to the courts is one of the highest privileges of citizenship. An alleged and pretended motive to distribute Federal Employers' Liability Act cases more generally throughout the bar is a sorry excuse for changing principles of law with reference to the jurisdiction of courts and the venue of actions therein, which have endured and stood the test of time successfully for 37 years. It has been represented that certain evils have arisen as a direct result of the decisions of the Supreme Court of the United States in Miles v. Illinois Central R. Co. (315 U. S. 698), and Baltimore & Ohio R. Co. v. Kepner (314 U. S. 44). Nothing could be further from the truth. There is no foundation for any claim that any of the present practices stem from either of these decisions, and a change of interpretation will not mitigate or alter any of the alleged evils. The Miles case merely held that a Tennessee State court could not enjoin the prosecution of a Federal Employers' Liability Act case pending in the State courts of Missouri on the ground that it was oppressive to the railroad. The Kepner case merely held that a State court could not enjoin the continued prosecution of a Federal Employers' Liability Act suit in the Federal court of another State on the ground that it was oppressive to the railroad. Neither authority established any new law. Previous to both decisions the authorities were uniform that such injunctions were improper and would be accorded no extraterritorial effect. See Atchison, Topeka & Santa Fe Ry. Co. v. Taylor (292 Ill. App. 461, 11 N. E. (2d) 612); Missouri-Kansas-Texas R. Co. v. Ball (126 Kan. 745, 271 P. 313) ; Mobile & Ohio R. Co. v. Parrent (260 Ill. App. 284); Lancaster v. Dunn (153 La. 15, 95 So. 385).

Perhaps the clearest and most emphatic statement of the Supreme Court was made in the early case of Denver & R. G. W. R. Co. v. Terte (284 U. S. 284, 52 S. Ct. 152), as follows:

"Further, as a practical matter, courts could not undertake to ascertain in advance of trial the number and importance of probable witnesses within and without the State and retain or refuse jurisdiction according to the relative convenience of the parties."

For good, substantial and practical reasons the injured employee, or his beneficiaries in case of death, should be given a wide and liberal choice of forums, without the burdens and obstacles of forum non conveniens. The railroad worker frequently is injured at a distance away from home. His work is of a specially dangerous and hazardous nature. The injuries inflicted in such cases are usually of distressing severity. The accidents always happen on the premises of the employer who keeps a trained legal staff of lawyers and claim agents who are constantly ready to advise it. Not only does the accident happen on its premises, but it has complete dominion and control over not only its grounds and tracks and roadbed but the equipment involved. The witnesses are its employees, subject to its beck and call.

A claim agent is immediately upon the ground and, while the unfortunate victim is either in the hospital or in his coffin, complete and extensive investigation is made and all the necessary data for a complete defense is preserved. Not only does the claim agent have competent lawyers and claim agents, but expert witneses are available locally for its assistance.

Frequently the injured party is transported hundreds or even thousands of miles to a railroad hospital at a distant metropolitan center. The main and principal offices of all of the major railroad companies are located in some metropolitan area like New York, Chicago, St. Louis, the Twin Cities, San Francisco, or other large cities. The principal offices, the general counsel, and the chief claim agents are usually located in one of these metropolitan areas, and these are the officials who have authority to determine the settlement of the major claims.

It must be remembered that the Federal Employers' Liability Act is not a compensation act. The mere happening of an accident does not establish any liability. It is not enough to prove that the employee was injured or killed on duty but he must go further and maintain the burden of proof. He must establish that his accident was caused in whole or in part by some negligence on the part of his employer, and the disparity between the parties from the standpoint of evidence, money, resources, et cetera is very great. It was because of this disparity, the disadvantages and burdens upon the employee, and the abuses and evils that arose under the prior system, that Congress attempted to equal the scale and confer upon the plaintiff his choice of venue. Someone must determine venue. Either Congress must determine it by a rigid rule, or permit each and every judge to exercise his own notions on the subject, which is to say that venue will be determined by no rule at all. To permit the carrier to be sued wherever it operates its trains and does business is no great burden or disadvantage to it.

The overwhelming majority of Federal Employers' Liability Act cases are filed in a metropolitan city where the defendant operates its lines and where it can transport its witnesses free of charge, and where it has lawyers and claim agents and numerous employees with extensive offices. Under these circumstances the railroad company is perfectly capable of defending itself. The incidental injustice to it in an isolated or exceptional case would be as nothing compared to the chaos, confusion, and gross injustice that would result in many cases if the plaintiff must first litigate for weeks and months his venue selection, with affidavits, motions, briefs, hearings, and numerous delays, and with one judge in one particular case sustaining jurisdiction over a certain railroad company and the judge in the adjoining courtroom denying it. To have the jurisdiction of courts and the venue of actions in them determined by any such system would not be rule by law, but rule by whim and caprice. On the same identical state of facts conflicting and varying decisions would be handed down by different courts and a great volume of litigation would be bound to rise over preliminary questions. It is respectfully submitted that the proper solution is not to tinker with the jurisdiction of courts and the venue of actions, nor to throw additional obstacles and create additional difficulties for the unfortunate victims of railroad accidents.

III. THE REPORT OF THE RAILROAD RETIREMENT BOARD

Here reference has been made to the resolution of the United States Senate adopted in 1941 and directing the Railroad Retirement Board to make a thorough study of railroad accidents. Such a report has been made and filed with the Committee on Interstate and Foreign Commerce, and the findings and conclusions of the Board are available to this committee. It was the conclusion of the Board that the overwhelming number of claims for injury or death of the railroad worker are settled for inadequate amounts (p. 6). The Board finds that the filing of suit is infrequent and the overwhelming majority of the cases are settled without suit, and even where suit has been filed, the vast majority of cases are settled without trial (pp. 9 and 10). The cases actually adjudicated consist of only 8 percent of the fatal ones, 16 percent of the permanent total ones, and 4 percent of the major permanent partial claims (p. 10). Courts pass judgment on considerably less than 1 percent of the less severe injury claims (p. 10). That the number of court cases is remarkably low (see pp. 43, 44, 45, and 47).

The Board found that the Brotherhood of Railroad Trainmen in establishing its legal-aid bureau in 1930 successfully protected its members from unscrupulous,

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dishonest lawyers, who, concededly, form a distinct minority. The Board said: "The Bureau established a panel of attorneys of tested intergrity and ability, many of them recommended informally by the trial pudges in local communities, to whom members in need of legal advice on personal-injury claims were referred" (p. 39). The legal aid department of the Brotherhood of Railroad Trainmen was commended for its excellent work in the leading case of Ryan v. Pennsylvania R. Co. (268 Ill. App. 364). The Board also found that where attorneys were employed, the clients received far more money net to themselves than had been offered by the railroad company, stating, on pages 49 and 50, as follows:

"Where an attorney was engaged, the initial bid was on the average more than doubled before the case was closed. In cases where the attorney felt it advisable and persuaded his client to file suit, the gross amount recovered was on the average three or more times larger than the figure originally named by the claim agent."

With reference to the necessity for specialists in the field of employers' liability, the Board said:

66 * * * On the other hand, because of the broad language used in the liability acts, it is not conceivable that they can be properly administered except by a body of impartial men versed in the fine points of the law and skilled in the careful sifting and analysis of the evidence" (pp. 45 and 47).

It should be noted that the Board was referring to the personnel that would be necessary to administer any system of compensation for railroad workers.

IV. THE PROPOSED REMEDY WILL NOT CURE ANY EXISTING EVILS OR ABUSES

It is the principal contention of the proponents of the bill that certain abuses have arisen under the present system. It is conceded that the misconduct is confined to a very small minority of the members of the bar, and it is also conceded that there are certain members of the bar that will take advantage of any system that may be devised. It is further conceded that the bar associations and disciplinary bodies in the various States now have full power and authority to regulate their members and to discipline and purge unworthy ones, but it is sought to accomplish indirectly this major objective by penalizing the railroad worker and by depriving him of a valuable and substantial right that he has enjoyed for many years.

It will be noted that the evils complained of arose during an abnormal period in the history of the Nation-in fact, under war conditions. During the war period the carriers had an extremely high accident rate because of the condition of equipment and the presence of a large number of green and inexperienced employees. They were carrying substantially larger pay loads of freight and passengers than ever before in history. Their tracks, roadbed and other equipment were subjected to extreme stress and strain without proper and adequate maintenance. The ratio of accidents was correspondingly higher, and that during such years the carriers should have been subjected to more claims than normally would be the natural result.

Therefore, any statistics gathered during such times would be misleading and entirely inadequate as the basis for permanent legislation. Legislation with reference to the jurisdiction of courts, the distribution of judicial power, and the venue of actions arising under Federal laws, should be based on a long-range policy and in contemplation of normal and permanent conditions.

A careful analysis and scrutiny of the statistics presented by the railroad companies will disclose that:

1. The amount of alleged "importation" is very small indeed when one considers the tremendous number of reportable accidents (involving injury and death to almost a total of 50,000 employees in some years) as compared to the limited number of cases of which the carriers are complaining.

2. The problem is not widespread, but is largely confined to a few railroads, whose legal and claim departments ought to be subjected to a critical scrutiny. 3. The overwhelming majority of such cases were "imported" either from one point within a State to another point or merely from some adjoining State. 4. The railroad hospital was located in a metropolitan area or center where the claim was later handled or the lawsuit filed.

5. The main and principal offices of the railroad are located where the claim was later handled or the lawsuit filed.

6. The disposition of the "claim" involved nothing but a few conferences or some correspondence.

7. The railroad companies complaining were not required to pay more than fair, just and adequate compensation.

8. The number of claims and lawsuits per railroad depends upon the efficiency of its safety department and its claim and legal departments.

It is submitted that Congress should not reorganize the judicial code or make any major changes in the Federal Employers' Liability Act for the purpose of accomplishing police work for local bar associations. This is not a proper objective for the Nation's Congress, and insofar as the argument of the proponents is based upon the unethical practice of a minority of lawyers, they should be addressed to bar associations, State legislatures, and local courts, and not to the Senate of the United States. Nor will the proposed bill, if enacted, furnish any remedy or solution. It will probably offer a more lucrative field to the unscrupulous lawyer and permit him to increase the fees and expenses of litigation which must be borne by the victim of the accident or his beneficiaries. The only beneficiary of the proposed legislation will be the carriers themselves who, under the new system, will settle far less claims and will offer less money, and who will be encouraged to contest jurisdiction and venue indefinitely unless sued in a court that is satisfactory to them.

The mere fact that an accident happens while a train is passing through a particular district or county furnishes no proper standard for confining the venue of an action to that district or county, nor does the circumstance of the plaintiff's residence furnish a proper criterion. The result of the bill will be to confine many cases to small division points where the accident happened or where the injured party resided at the time. It is easy for a trial judge with a heavy calendar, or one which he deems too heavy, to shift the burden of litigation elsewhere, and this natural tendency will be encouraged by the proposed bill which will serve to cloak it in congressional sanction.

The leading members of the bar in rural counties are invariably retained by one or more railroad companies. The same is true of the leading doctors. The local judge, and in many counties or districts there is only one, may well have been a railroad-company lawyer. In a local division point the upper strata of society are frequently composed of the officialdom of the railroad company such as the superintendent, train master, road master, master mechanic, and other local officials and their families, and the railroad company exercises great influence in local affairs. It would be difficult if not impossible for the injured employee to obtain competent experts in the way of doctors, actuaries, engineers, or surveyors because in this respect the railroad company will have all the advantages. Personal injury cases cannot be tried today without medical experts and usually orthopedic specialists are required. The railroad company will import its trial counsel from a nearby metropolitan area and also some outstanding doctor, and both will cooperate with the most prominent lawyer locally and the most prominent doctor locally. Under such circumstances the railroad employee would not be on an equal footing with the railroad company and would not receive a square deal. In metropolitan areas the courts themselves are more familiar with a multitude of authorities that have established a definite body of law around the Federal Employers' Liability Act. From almost any point of view the prospects of obtaining a just and adequate verdict are more satisfactory in a metropolitan area than in a more rural or backward community.

CONCLUSION

The reasons why the proposed bill should be defeated may be summarized as follows:

1. The complaints against the existing system are not of sufficient importance to warrant changing the jurisdiction of courts, and the venue of actions therein. 2. To the extent that evils or abuses have occurred other avenues of redress are available.

3. The venue provision of the Federal Employers' Liability Act was designed to place the employee on a more equal basis with his powerful employer.

4. The present section has stood the test of time for 37 years.

5. The liberal and humanitarian purpose of the Federal Employers' Liability Act would be defeated by the amendment.

6. The Railroad Retirement Board after an exhaustive and thorough study found no necessity for the proposed legislation.

7. The alleged evils and abuses have occurred during an abnormal period in our national history.

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