This is the law in the State of Minnesota. (See Minnesota Statutes Annotated, sec. 542.11.) Substantially the same provisions are contained in the statutes of most States.

Under the terms of this bill it would not be possible to move a case of this kind to a different county within a State for the convenience of witnesses or for any other person. The bill lays the venue in the county where the cause of action arose or where the plaintiff resides. It permits no deviation. We might well ask the question: "Why should the injured railroad employee or the legal representative of a deceased worker be discriminated against in this fashion?" The laws of the various States also provide for the places where foreign and domestic corporations, including railroad corporations, may be sued. The statutes vary in the different States. The presnt bill would change the law in every State of the Union so as to specifically lay the venue in only two counties, to wit: Where the cause of action arose or where the plaintiff lives. This is an undue restriction imposed on the State courts and is of doubtful constitutionality. Under the law as it is today, venue in the State courts is laid in accordance with the State statutes, and lawsuits may be moved around for the convenience of witnesses and for other purposes in accordance with the provisions of the State laws. Here, again, we ask: What is the basis for making the change?

It is admitted that an evil exists in the operation of the present law and that some action should be taken by the Congress to strike at that evil. What should the Congress do? Let us first look at the problem and see how the evil arose, then we should be in a position, without prejudice or bias, to prescribe the proper remedy.

The Federal Employers' Liability Act was first enacted in 1908. This act abolished the common-law defense of assumption of risk. It did away with the defense that an injured employee suffered injury or death as the result of negligence of a fellow servant, and abolished the defense of contributory negligence. Under the law, the negligence of the injured employee is considered only in mitigation of the damages that he or his estate otherwise might be awarded. By amendments to this act in 1910, the present venue provision of the act was enacted. It has remained the same for 37 years.

The trafficking in, and solicitation of, lawsuits under the act became a major problem after 1942. Why did it arise? The answer to this question is furnished us by a witness who testified, not as an opponent but as a proponent of H. R. 1639. The witness was Thomas P. Gay, Richmond, Va., attorney, president of the Virginia State Bar Association, and chairman of the committee on jurisprudence and law reform of the American Bar Association. (See p. 136 of the hearings.) When he appeared before the committee, he testified that traffic in these lawsuits arose after 1942 following the decisions of the United States Supreme Court in the Kepner (314 U. S. 57) and Miles (315 U. S. 698) cases. Those cases held that the doctrine of forum non conveniens ("the court is not convenient") was not applicable to cases under the Federal Employers' Liability Act. The doctrine of forum non conveniens is an old common-law principle and is customarily invoked by a court in refusing to assume jurisdiction of a lawsuit legally brought in its jurisdiction but where there is no legitimate reason for bringing it there. Thus in the event that a lawsuit is brought in the State of Florida when the cause of action arose in the State of Oregon, the parties and all the witnesses living in the State of Oregon, the court, by invoking the doctrine, may refuse to hear the case and leave the parties to bring it in the proper jurisdiction. The doctrine is sound, well established, and conducive to the proper administration of justice. (See Columbia Law Review, vol. 29, p. 1.)

Prior to the Kepner and Miles decisions, this doctrine was applicable to cases brought under the Federal Employers' Liability Act. In the event an action was brought in some far distant place having no relation to the locale of the cause of action, or the residence of the parties, or the convenience of witnesses, the railroad could apply for an injunction prohibiting the trial of the lawsuit in such far distant places and require that it be brought in the proper forum. This principle was so well established that it was very seldom that lawsuits were brought in any jurisdiction other than where they properly belonged.

The Supreme Court's decisions in the Kepner and Miles cases, however, were followed by a flood of litigation instituted in far-away places, many times thousands of miles from where the accident occurred or where the railroad operated trains. Unscrupulous attorneys now concentrate the trial of their lawsuits in forums most convenient and advantageous to themselves. Other parties to the lawsuits suffer inconvenience, expense, and delay. The courts are unduly burdened, and the orderly administration of justice is adversely affected.

We can see that the present evil arose as a result of the Supreme Court's interpretation of section 56 of the Federal Employers' Liability Act. In order to rectify the evil, we should amend the law so as to again make the doctrine of forum non conveniens applicable to these cases as it was prior to the Supreme Court's decisions. This can be done by the simple device of requiring that these cases be brought under the same venue statute as are all other civil actions. It should be pointed out that actions brought under the general venue statute (sec. 112 of the Judicial Code) are subject to the doctrine of forum non conveniens. This is now well established, especially in view of the recent United States Supreme Court decision in the Gulf Oil case (Gulf Oil Company v. Gilbert, October 1946 term, No. 93).

One of the additional advantages of bringing these cases within the general venue statute rests in the fact that we would thereby take advantage of the many well-settled judicial precedents decided under the general venue statute and thus prevent the onus of a long series of cases normally necessary in order to settle a new statute.

In this manner all litigants will be treated the same. No prejudice to any class of people would result. What could be fairer?

One member of the House Judiciary Committee submitted his minority views which in the interest of space are not summarized here. His views appear in print as House Report 613, p. 3.

In the House hearings the following witnesses appeared for the legislation: 1. Hon. John Jennings, Jr., a Representative in Congress from the State of Tennessee and the author of H. R. 1639.

2. Mr. Floyd E. Thompson, member of the Illinois bar.

3. Mr. J. Carter Fort, vice president of and general counsel of the Association of American Railroads.

4. Mr. John W. Freels, general attorney, Illinois Central Railroad Co., representing the law committee of the Association of American Railroads.

5. Mr. D. Lindley Sloan, attorney at law, Cumberland, Md.

6. Mr. Thomas B. Gay, President, Virginia Bar Association.

Those appearing against the legislation were:

1. Mr. Harry See, national legislative representative, Brotherhood of Railroad Trainmen

2. Warren H. Atherton, Esq., special counsel, Brotherhood of Railroad Trainmen.

3. Mr. A. E. Lyon, executive secretary, Railway Labor Executives Association. 4. Mr. E. Burke Finnerty, Esq., attorney at large, Newark, N. J.

5. Mr. Jonas McBride, vice president and national legislative representative, Order of Railway Conductors of America.

Subsequent to the introduction of H. R. 1639 the American Bar Association and the bar associations of some 35 States have gone on record as endorsing the principles of the bill. In addition, hundreds of city and county bar associations and hundreds of practicing lawyers have endorsed the bill.

Senator MOORE. Senator Langer, do you wish to make a statement? Senator LANGER. I do not at this time. With your permission, I should like Warren Atherton, former commander of the American Legion, who will be a witness, to have the privilege of sitting here beside me.

Mr. ATHERTON. May I waive that privilege, Mr. Chairman?

Senator LANGER. I asked permission to have you sit beside me here, if you will.

Senator MOORE. I remember your testimony before the House committee, Mr. Atherton.

Senator LANGER. I think a former commander of the American Legion is entitled to that.

He is from Stockton, Calif.

Senator MOORE. We have a list of witnesses here. Mr. J. Carter Fort is listed first. Did you want to make a statement, Mr. Fort? You made a statement before the House committee, I believe.

Mr. FORT. I have a very short statement I should like to make, Mr. Chairman.

Senator MOORE. If you have an extensive prepared statement, I would like, if it is agreeable to everybody, to have you file that statement for the record and then limit your testimony to explanatory and additional matters.

You may proceed, Mr. Fort.

STATEMENT OF J. CARTER FORT, VICE PRESIDENT, ASSOCIATION OF AMERICAN RAILROADS, WASHINGTON, D. C.

Mr. FORT. Mr. Chairman and gentlemen of the committee, my name is Carter Fort. I am general counsel and vice president of the Association of American Railroads and I appear here for that association. It is an unincorporated association of railroads which represents its members in matters of common interest to them and of general interest to the railroad industry.

Its membership includes almost all class one railroads, and its members operate approximately 95 percent of the mileage of the country and their revenues are approximately 95 percent of the class one revenues of the country.

The association supports H. R. 1639 and its companion bill in the Senate, S. 1567, and believes that the enactment of this legislation would bring an end to some very grave abuses and would bring about a wholesome and very much needed reform.

Under the existing venue provisions of the Employers' Liability Act, grave and widespread abuses have developed. These venue provisions of that act permit suit to be brought against the railroad at any point where the railroad is doing business. The opportunity afforded plaintiffs to subject a carrier to suit wherever it does business has led to the practice of filing suits in jurisdictions far remote from the localities where the causes of action arise and has resulted in a nation-wide system of solicitation on the part of a small group of lawyers and in what we believe to be an abuse of the judicial processes.

H. R. 1639, if enacted, will bring an end to that unwholesome practice by limiting the venue of suits, with certain exceptions, to the places where the plaintiff resides or the site of the accident, and thereby will remove the opportunity for this traffic in litigation of the character that I have referred to.

My statement will be purely introductory in character. The chief witness for the association will be Mr. John W. Freels and Mr. Jonathan Gibson, who will follow me.

My experience has not been wide in the personal-injury field or in. cases arising under the Employers' Liability Act. However, both Mr. Freels and Mr. Gibson are lawyers of long experience in cases arising under the Employers' Liability Act and will discuss at some length the nature and magnitude of the existing abuses.

As general counsel for the Association of American Railroads, I am also chairman of the law committee of that association, the membership of which is made up of the general counsel of 40 of the principal railroads in the United States.

When Congressman Jennings, of Tennessee, introduced H. R. 6345 in the Seventy-ninth Congress, a bill with the same objectives as the bill which is now before you, I brought that bill to the attention of the association law committee for consideration and study. A special

subcommittee was appointed for that purpose, and it is made up of seven lawyers, two from the North, and two from the South, and three from the West. Mr. Freels, who, as I have said, will follow me, was the chairman of that special committee, and Mr. Gibson, who will also appear before you, is a member of the committee. They have both participated in the studies which that committee has made of the abuses which arise under the statute in its present form.

In view of the testimony which is to follow mine, it will be sufficient for me to say that those abuses operate not only against the interests of the railroads which I represent but also against interests of the legal profession generally and, indeed, we think, against the public interest.

The difficulties of trying a lawsuit in a jurisdiction far removed from the community where the cause of action arose are at once obvious to any lawyer. To begin with, grossly excessive expenses are unavoidable in suits defended in distant forums.

Of greater importance, however, is the fact that ends of justice are defeated because the defendant cannot present his case fully on the factual issues and cannot compel the attendance of unwilling witnesses. Moreover, he finds it impossible to meet surprise testimony because witnesses for this purpose, even when they are willing witnesses, cannot be obtained in time.

Again, in case of that kind brought in most jurisdictions, the jury is denied an opportunity to view the premises and the facilities. involved.

There is another feature of public interest which is of the greatest significance, perhaps the most important feature of all. In virtually every case in which an action is brought against a railroad under the Employers' Liability Act, many of the railroads' witnesses are persons engaged in actual railroad operations. That operation necessarily suffers when those employees cannot attend to their ordinary duties because they must be taken to distant points and required to remain there for long periods of time for the purpose of appearing as wit

nesses.

During the first World War, when the Government was operating the railroads, the director general of the railroads considered the absence of employees who were required to attend trials as witnesses at remote points to be such a serious handicap to railroad operations that the Government refused to permit suits in remote jurisdictions and limited the venue very much as it would be limited by this bill which is before you.

Senator MOORE. That is the first World War which you are talking about?

Mr. FORT. During the First World War, sir.

Senator MOORE. When the railroads were under Government control?

Mr. FORT. That is right, sir. Of course, during the Second World War they were not under Government control.

In many instances railroads operate in ten or more States. Moreover, they maintain offices in many additional States. In this particular they differ very significantly from other corporations. Thus, if a railroad may be sued at any point where it is doing business, as is provied under the present statute, a suit may be filed in a jurisdiction hun

dreds or even thousands of miles away from the locality where the plaintiff lives or where the accident happens, or where the witnesses live.

The opportunity for misusing the judicial process and defeating the ends of justice, to which I have called attention, has actually been exploited on a large scale in connection with these lawsuits and is being exploited on an ever-increasing scale.

During the hearings before the subcommittee of the House Committee on H. R. 1639, attention was directed to the fact that an investigation on some 50 railroads showed that during the 5-year period, July 1941 through June 1946, more than 2,500 suits under the Employers' Liability Act were filed in jurisdictions remote from the site of the accident and the residence of the plaintiff. Recently, and since the House hearings, there was completed a second investigation on 41 railroads covering the subsequent period of July 1946 through August 1947, which disclosed that in that 14-month period, 1,011 suits were filed. A comparison between the number of transported suits filed in the first period, 1941 to 1946, with the number filed in the second period, July 1946 to September 1947, clearly demonstrates that such suits are increasing in number.

During the first period, cases of this kind were filed at the rate of 500 per year, while during the second period they were filed at the rate of 842 per year, an increase in the annual incidence of about 70 percent. The investigations disclose that most of the transported suits have been concentrated in five or six large cities, such as Chicago, New York, Minneapolis, St. Paul, St. Louis, and Oakland, Calif.

Moreover, the suits have been concentrated in hands of a very few lawyers. As an example of such concentration, I call the attention to the fact that between July 1, 1946, and August 31, 1947, a 14-month recent period, one Chicago lawyer filed 139 lawsuits growing out of accidents occurring outside Illinois. As an example of the number of suits transported and the distances involved, I call attention to the fact that since 1941, which covers both the 5-year period and the 14month period, in Illinois alone 37 suits were filed growing out of accidents in New Mexico, 159 growing out of accidents in Pennsylvania, 34 growing out of accidents in Oklahoma, and 80 growing out of accidents in California.

This is merely illustrative. Suits were filed in New York growing out of accidents in Texas, Arizona, California, North Dakota, and Florida, merely to pick some States as examples.

In California, 169 suits were filed growing out of accidents in Arizona. All of this will be developed more fully by Mr. Freels and Mr. Gibson. It is unnecessary for me to point out, in view of what I have already said, that a fertile field for the solicitation of law business is presented by this situation.

Judge Jennings and Judge Thompson, in appearances before the subcommittee of the Committee on the Judiciary of the House of Representatives, developed this feature in a striking fashion, and it is my understanding that they are scheduled to appear before your committee. No doubt you will hear from them.

Senator MOORE. I omitted to state in the beginning here that Judge Jennings, the author of this bill, asked that he might be heard at a later date. His request will be granted, for he is not able to be here this morning.